Trees v. Forest

The problem with law school—when I went four decades ago, and today—is one of perspective: The big picture hardly matters, and the little picture is everything. Fortunately, I know how to fix it.

The voice on the telephone was from a long time ago and far, far away. It belonged to a friend from the University of Texas law school, an honor student, whom I hadn’t seen since the day he graduated. (Notice I didn’t say the day “we” graduated. It took me four years to finish, one year more than just about everyone else.) He was in town for our fortieth reunion. Would he see me there? I hadn’t even known that there was a fortieth reunion—not that I would have gone anyway. Trained to respect the principle of stare decisis, I saw no reason to overturn the precedent I had established in law school with regard to nonattendance. But we did get together for a short visit.

All his family news was great: long marriage, smart kids, summer retreat on Long Island. But the professional news was not so good. Around ten years ago, his major client had been taken over by a rival company, which had its own lawyers; eventually, he’d had to leave his law firm. He did catch on with another firm, but, he told me, “I’m just a high-priced grunt lawyer.” When he turns 65, which is about to happen, he will probably have to retire; with luck, he said, he might be able to work another year or two. He ended with a lament similar to others I have heard from friends in Texas who are lawyers of a certain age: “Law is no longer a profession. It’s a business. All that matters is how many hours you bill. Even the quality of the work is secondary.”

For the umpteenth time, I was thankful that I have not spent my working years in the practice of law. I have that hard-won law degree, I passed the bar exam, and I even worked as a lawyer in the Texas Senate for a few years, drafting bills—not exactly the prime real estate of the legal profession. But all the time I was in law school, I could never envision myself writing a will or preparing a contract for a land deal or whatever else it is that lawyers do. I knew nothing more about the actual practice of law when I left law school than I did when I began. Come to think of it, what did I get out of law school, anyway?

That question has remained in my mind ever since I saw my former classmate. I found myself remembering things I hadn’t thought about in forty years. The civil procedure professor whose multiple-choice questions were to be answered along the lines of “Which of the following is the least likely to be incorrect?” The real-life dilemma from nineteenth-century England in which three victims of a shipwreck, adrift in a lifeboat, decided to kill and eat a fourth victim, who appeared to be near death, so that the others could survive: Were they guilty of murder? (My answer was no, because law cannot exist outside of society; in the actual case, the defendants were convicted and their sentences were commuted to six months’ imprisonment.) The legendary constitutional law professor who wouldn’t call on women students (of whom there were very few at the time) and, when the women protested, ceased to call on students at all. Being called on in class to explain the reasoning behind a court’s decision, knowing that whatever answer I gave would be followed by another question, and another, until my confusion was total and my humiliation complete. This was the Socratic method, used by every major law school in those days: 1. Hide the ball. 2. Make the student try to find it. 3. If, perchance, the student actually does hit upon the perfect answer, pretend he didn’t. 4. Hide the ball again. I’m not sure when I knew that the law was not for me, but I think it was before the first class on the first day of the first year.

If I didn’t quite meet law school’s expectations, law school didn’t quite meet mine either. Something was missing, and it was the big picture of the law, which is all the corny stuff about equal justice and fairness. It was hardly mentioned—not by professors, not by students. I had the feeling that we were being trained to think of such matters as superfluous to the workaday function of the law; what really mattered was the little picture of why a particular case was decided in a particular way. This was, and still is, the central dilemma of law school: Is it a trade school, designed to prepare students to get a job, or is it a graduate program that shares the overall mission of the academy, which is to teach students how to think?

In search of an answer, I decided to go back to law school for a few days. I attended a seminar on the Texas Supreme Court, visited a class on evidence, interviewed several former faculty members and administrators. What I found was a place that had changed a lot—and for the better—since I had been there but that still wasn’t sure what it wanted to be when it grew up.

The issue of trade school versus haven for scholarship has exploded in recent years. Indeed, law schools are increasingly under pressure from academicians in traditional disciplines who are bent on expanding the study of law to include history, economics, and social science. The academicians are asking, in effect, whether law professors are true scholars. Why should the law profs be writing about, say, the economic consequences of antitrust law when they may lack expertise in economics? Shouldn’t lawyers have some idea what will happen in the real world if this side or that prevails in a major lawsuit? Suddenly the economists get a foot in the door, and after them come the social scientists, and pretty soon you have law schools (most famously, Yale) where the policy behind the law is of more concern than the law itself; in fact,

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