Two Cheers for Traditional Teaching

John is surely right to think that the New York Times has published an article that shows a total ignorance of what is good or bad in legal education.  The first point that I would note is that there is no one pattern of education that is suitable for all students. There are some students, but usually not at elite law schools, who will hang out their shingle in small towns and who therefore have to be self-sufficient over the type of transactions that they do. They need form books of a certain sort, and have to know where to file papers and the like.  But some of our students will work with complex financial institutions and will need to know huge amounts about the operation of various kinds of instruments, and the systems of regulation and contracts that are brought to bear on them.  I have spent many years working in these environments, and the only way to be successful as a lawyer is to know large amount of material that the Times would think irrelevant.  I am not thinking here about courses in feminism (which have their place in certain areas like family law), but courses like securities, corporations, antitrust, international trade, taxation and the like, where the so-called clinical approach would be sending people back for LLMs, which many of these students have to take anyhow to get up to speed.  To think that knowing the form for a statutory merger is what this branch of law is about is correct for paralegals, but not for lawyers.  For real deals one has to know about tax carryovers, about antitrust merger guidelines, about state approval procedures, about the integration of seniority lists, and so on down the line.  The forms are such a tiny part of what lawyers do that it is mindboggling to think that this is more than a small part of a large mosaic.

There is one point on which I disagree with John, and that is on the role of common law courses, which I teach, and he does not. These courses have evolved enormously over the 43 years that I have taught.  The types of cases we teach have migrated from traffic accidents to mass torts, from simple contracts of sales to large cooperative arrangements and the like.  The tools from law and economics, legal history and comparative law have reshaped the discourse.  The constant need to show how statutes influence the formation and enforcement of contracts also takes a larger amount of time.  These courses have been cut back, and that may be strictly necessary with the larger statutory courses.  But it is also deceptive.  One cannot teach environmental law without knowing the common law of nuisance well, and one cannot teach securities law without knowing about common law rules of misrepresentation and fiduciary duty.  Consequently, materials that are forced out of first year common law courses get repackaged in upper division courses. In practice, common law rules never disappear. They become integrated with newer developments.

In the end, the demands of a good legal education for all sorts of students are more formidable than ever before.  The New York Times could certainly not get a job teaching at a law school with their pathetic approach to the subject matter.

  1. Midget Faded Rattlesnake
    Richard Epstein: One cannot teach environmental law without knowing the common law of nuisance well, and one cannot teach securities law without knowing about common law rules of misrepresentation and fiduciary duty… In practice, common law rules never disappear. They become integrated with newer developments.

    I’m not even a lawyer, and this makes sense to me.

  2. Larry3435

    In my first 2 1/2 years of law school I do not recall learning anything that proved useful in my practice over the last 30 years.  My final semester I externed for a federal judge, and that was useful.

    More importantly, many of my professors could not have imparted practical knowledge if they had wanted to, because they simply had none.  A lot of them went directly from their clerkships into a teaching job.  I used to joke that my law school hired its faculty by posting a sign in the Yale placement office, which began “Can’t find a job?  Call the Dean’s Office at …”

  3. outstripp

    People tend to discount the value of knowledge and exaggerate the value of “thinking skills.”  Of course, thinking skills are important, but knowledge is what wins arguments (usually).

    The funny thing about knowledge (where can I get a new social security card) is that once you have it, it seems trivial.  If you don’t have it, you’re out of luck though.

  4. Ryan M

    I am a lawyer…  and …   Mr. Epstein – I’ve been waiting for several weeks for the new Law Talk to come out, and each day I’m a little bit more disappointed.  What’s going on?  :)

  5. Ecdysis

    I must say, this post is encouraging as I take a study break from Evidence, Patent Law, and Conflict in Laws (none of the courses Prof. Epstein mentioned were important haha). While I, of course, cannot yet comment on whether any of this will be worth while, I can say professors that bring some level of practical experience are extremely helpful. I still need to know the theory, but having someone explain its practical application (or lack of applicability) is encouraging and brings the course out of “la la law school land.”

    From my limited experience, I do think the weight placed on “thinking skills” is justifiable. If I want to know a portion of the law, I can look it up. Anyone can regurgitate a rule statement paragraph if they memorize it. And while you cannot win the argument without the knowledge, both sides have it. It seems to me that what would make the difference is the application of that knowledge to the specific facts and recognizing the nuisances and different characterizations that can only be achieved by “thinking like a lawyer.”

  6. Antiphon

    Prof. Epstein, is the old practice of ‘reading law’ instead of going to law school proper completely dead? Is there some sort of hybrid?

    Would excessively priced law schools ever bring back this practice?

  7. Troy Senik, Ed.

    John and Richard are pretty busy guys (I, on the other hand, have a pretty predictable schedule … Occupy Los Angeles is relatively stationary). Holiday travel adds to the complexity, as does the fact that the remarkable Blue Yeti is behind the boards for every podcast in addition to a number of other duties. The next episode should be coming out at the very start of next week. We’ll labor to make it worth the wait.

    Ryan M: I am a lawyer…  and …   Mr. Epstein – I’ve been waiting for several weeks for the new Law Talk to come out, and each day I’m a little bit more disappointed.  What’s going on?  :) · Nov 28 at 6:09pm