Bad Sociology, Not Law

Editor’s note: Jan M. Levine, professor of law at Duquesne School of Law, has since responded to this article and Professor Rounds has replied.

Cameron Stracher, a professor at the New York Law School, was on target when he suggested in the Wall Street Journal in 2007 that law schools are not preparing their graduates to be lawyers. That is, graduates don’t learn the balanced practical judgments that seasoned lawyers must make every day in the course of representing and advising their clients.

As a veteran law professor, I tip my hat to Stracher for having the nerve to say what many only think. I disagree, however, with Stracher’s diagnosis. He argues that the cause of the problem is the Socratic case method and presumably the traditional core common law curriculum in which its magic was worked, particularly Agency, Trusts, Property, Contracts, Torts, and Evidence.

As I see it, the cause of the problem is that the Socratic method has not dominated law school teaching for a number of decades now. When the method is employed at all, it is as a shadow of its former self, having largely been defanged by grade inflation and “sensitivity” concerns.

A discrete course in Agency is no longer mandatory in most law schools, and hasn’t been for years. The same goes for Trusts. This is unfortunate, as agents and trustees are fiduciaries with a duty of undivided loyalty.

A trust is not just the component of some rich person’s estate plan. To date, billions of dollars worth of sub-prime mortgages are still parked in commercial trusts, the trust being the vehicle of choice for the securitization of such pools. Fidelity’s mutual funds generally are structured as trusts. So are Bank of America’s and Vanguard’s. In 2005, the aggregate value of mutual fund assets in the U.S. was in the range of $8.9 trillion. Charities, even charities that operate in corporate form, are essentially trusts.

As for Property, well, let’s just say, it is no longer your father’s Property course. It’s now more about politics than the fee simple. Equity is ancient history, even though almost every piece of litigation nowadays involves at least one claim for equitable relief. Evidence has been reduced to a “menu course” that may be eschewed.

Common law, of which agency and trust are critical components, is the bedrock upon which all our statutory and regulatory edifices are constructed. Unfortunately, the old required courses in the law—the courses necessary to master the law’s basic anatomy—have largely been crowded out by courses about the law. Almost every self-respecting law professor is now an amateur sociologist engaged in “ground-breaking” and “cutting-edge” scholarship that has a gender, race, or sexual identity hook. Those who are less sociologically inclined are likely preoccupied with some ultra-technical aspect of the Constitution, some piece of legislation, or a regulation. Many professors manage to cobble together entire courses around their preoccupations.

In short, professors mainly teach what they want to teach, which does not overlap much with what prospective lawyers need to know in order to sort out the rights, duties and obligations of parties. Even a negotiation, mediation, or arbitration requires a context, which the core curriculum was designed to supply. Instead, law students at great expense are getting little more than bad sociology.

Professional schools need to strike a balance between book-learning and real-world experience. The American law school now deserves failing grades in both departments.

But it gets worse. In response to complaints from the practicing bar that recent law graduates cannot write well and are otherwise unable to “hit the ground running,” the typical law school has beefed up its in-house clinics and legal writing programs. These politicized bureaucracies behave like labor unions. They are great at self-promotion and forging national networks. They are labor-intensive and thus frightfully expensive.

At best, these programs are pedagogically inefficient; at worst they are pedagogically cancerous. By chipping away at, or crowding out altogether, traditional core courses such as Agency, Trusts, and Equity, these clinical and legal writing programs are more than just a nuisance. One’s writing improves when one has something rational and coherent to express. Ten writing courses will not help the law student who is unable to connect the dots because he or she does not know where the dots are.

There is some irony here, as a lawyer is the agent of his or her client. Law schools are in the business of churning out common law agents but they no longer require that their students take a course in the law of agency? How can that be?

This de-professionalization of the American law school, a phenomenon of profound concern to many in the legal profession, suggests that there is an opening for the for-profit sector. A bare-bones, back-to-basics for-profit law school staffed by seasoned scholar-practitioners may be the answer. The more boot-camp-like the better, in that the rigor will prepare future lawyers for the work they’ll actually confront in the real world.

It would be a step in the right direction (but only a small one) if law schools were to revive and require the discrete Agency course and relegate to the extra curricular “subjects” such as these:  Climate Change Justice (taught at Harvard), Social Justice Lawyering (University of North Carolina), Law and Literature: Murder (University of North Carolina), Social Disparities in Health (Colorado), Wal-Mart (Colorado), Law & Literature: Race and Gender (Duke), Sexual Orientation and the Law (Duke), Ethics in Literature (Yale), Civil Disobedience (Suffolk), and Critical Race Theory (Suffolk).

In any case, we are more likely to see such modest back-to-basics reforms emanating from a for-profit law school, whose faculty presumably would not be tenured, than from the tenured law faculties in the non-profit sector, which tend to walk in lock step.  A for-profit law school that affords its students a thorough grounding in the fundamentals would soon win the respect and admiration of the hiring partners in the nation’s law firms. In time they would come to take with a grain of salt the puff pieces and propaganda of their non-profit alma maters, and of the American Bar Association which regulates them.

Note: For more on the de-professionalization of the American law school, the reader is referred to the following law review articles:

Harry T. Edwards, The Growing Disjunction Between Legal Education and the Legal Profession, 91 Mich. L. Rev. 34 (1992).

Harry T. Edwards, The Growing Disjunction Between Legal Education and the Legal Profession: A Postscript, 91, Mich. L. Rev. 2191(1993).

Charles E. Rounds, Jr., A Case for a Return to Mandatory Instruction in the Fiduciary Aspects of Agency and Trusts in the American Law School, 18 Regent Univ. L. Rev. 252 (2005-2006).

Charles E. Rounds, Jr., Lawyer Codes Are Just About Licensure, the Lawyer’s Relationship with the State: Recalling the Common Law Agency, Contract, Tort, Trust, and Property Principles that Regulate the Lawyer-Client Fiduciary Relationship, 60 Baylor L. Rev. 771 (2008).