Certainly knowledge of rules and doctrine is important for law practice. But in many cases, the doctrine is unclear or is subject to interpretation and debate. It is the ability to make persuasive arguments about the doctrine that separates the great lawyers from the mundane. A good legal argument often touches upon policy implications; it examines the downstream consequences of rules, slippery slope problems, etc. A good lawyer might realize that there is a body of sociological, empirical, or psychological knowledge that supports a particular interpretation of the law. More indirectly, a lawyer steeped in a broad humanistic understanding of the law might think more creatively and might see issues and arguments that others without such an understanding would not.
Moreover, the study of interdisciplinary knowledge can have a broader indirect effect on the law. For example, the legal realists had a tremendous influence on legal practice. They changed the way many people thought about the law. They didn't do so directly. So lawyers and judges might not have been readily citing Karl Llewellyn or others as authorities for various legal propositions, but their thought did influence the way that legal arguments are made, the way that lawyers and judges understand the task of applying and interpreting the law. Although the law still struggles to integrate interdisciplinary knowledge in practice, I don't think that the project begun by the legal realists is a failure.
So I think that it is a deeply flawed assumption to see the practice of law as the mere mundane application of rules and doctrines. For the creative lawyer, steeped in literature and humanities, in social science, with an understanding of policy and a larger world view, the range of options in a case is much broader, the tools to work a case are much more numerous and vibrant. The lawyer with interdisciplinary training can often see more -- see issues and arguments that the more narrowly-focused doctrinalist won't see. I've read many a complaint and brief that could have benefited from more thoughtful framing, a more creative approach, and a knowledge of the humanities. I've seen cases where attorneys seemed to be very limited in their vision, where they they merely proffered mundane readings of rules, where they took too much as given and didn't push for more. And on the flip side, I've seen many cases where a visionary attorney has won with a new argument, a clever interpretation, a wise marshaling of facts and evidence, a novel reading of cases or application of law. Many lawyers act like mechanics, but the great ones, in my opinion, have a wisdom, judgment, and creativity that enriches everything they do.
What role should law schools play in the training of lawyers? A common assumption is that preparing people for the practice of law should involve teaching them the practicalities of practice. So teach them the rules, train them in the nitty-gritty of how to litigate, make deals, etc. While this is important, I think it is a limited vision of what it means to prepare people for the practice of law. At the end of the day, nothing can truly prepare you for the practice of law except actually doing it. There's a certain wisdom that comes from experience that seasoned practitioners have and that I don't think can readily be taught in school. The best way to learn how to practice law is to do it. Clinical education and learning certain practice skills can help, but most lawyers will learn about the practice of law as they are practicing it.
So if lawyers learn some of the most important lessons about practice after
they graduate from law school, then what's the purpose of law school? I believe it should be to provide students with a rich body of knowledge that they can draw upon to sharpen their thinking, open their minds to new ideas, get them to see the larger picture, help them figure out what they love about the law so they can launch their careers in the right direction, etc. These things are often difficult when one is in practice, with a desk full of heaps of paper and with the phone ringing off the hook. There often isn't the luxury of sitting back and thinking more broadly about the law. There isn't as much time to enrich one's mind with a study of the humanities and the ways they intersect the law, for example. Law school helps get one started on this endeavor. It teaches students that there are many different ways to think, it infuses them with ideas that they might not ordinarily think about unless they have time to step back from it all and ponder. The effects on their abilities as a lawyer are often indirect; they are hard to articulate and to pin down. We shouldn't demand that lawyers point to the work of Ludwig Wittgenstein, John Dewey, HLA Hart, Karl Llewellyn, Daniel Kahneman, Fyodor Dostoyevsky, or Franz Kafka and say: "I won this case because of reading this particular thinker." But are they better lawyers for having read and reflected upon great works in the humanities, for having some background in a variety of different fields of study and their applicability to law? I'd venture to say yes.
Is the value of law school for a lawyer to be working a case and be able to remember some rule she learned in a class many years ago? I think not. To find the rules, lawyers only need to crack open the law books or hop on Westlaw or Lexis. The rules, in other words, are not what training to be a lawyer is all about. The practice of law can contain a lot of drudgery, and a significant part of it is perspiration. But it is also part inspiration, and it is also an art.
All this said, I still believe that law school should teach students rules and skills. But learning rules is not what will help students become top lawyers. Learning skills in law school can be helpful, but at the end of the day, learning skills is something that lawyers learn when in practice. Skills develop over time. What law school does is plant some seeds -- it lays a foundation. It is foolish, in my mind, to think that law school can spit out lawyers who are ready to go out of the gate. Law school builds the foundation. The rest of one's legal career is when the building gets built.
So in contrast to Brian, I encourage the development of interdisciplinary studies in law. I don't see why they only need to be a luxury for the elite schools. I see interdisciplinary studies as helpful to all lawyers, and as an important part of any good legal education.Brian Leiter
is also collecting comments.