Law Schools Lie… Cheat… and Steal…
The problem with law schools today is not just their lack of relevance to the practice of law, but that they fail their mission as the guardians of professional education in the law. Today the major law schools lie to society, cheat their students, and steal the essence of civilization.
The purpose of a law school is to train lawyers just as the purpose of a medical school is to train physicians and surgeons. Problems arise because there is a well-defined mission statement for physicians and surgeons, engineers and scientists, but none for lawyers.
A law school without a mission is like a school for terrorists. It teaches methods which can destroy society and civilization and provides its graduates with the weapons of destruction without any regard for how those tools will be used and for what purpose.
Lawyers and Law Schools
Lawyers are supposed to be the guardians of the rights of all human beings and the trustees of civilized discourse. Law schools exist as the institutional affirmation of the law as a learned profession. Through the example of its faculty and the concern of its administration, a law school should impose upon each and every student a personal and non-delegable fiduciary responsibility to our society and our civilization to go forth and do what is necessary to maintain Anglo-American jurisprudence rooted in equity and our adversary system of litigation as the alternative to violence, revolution, and war.
Without a clearly defined mission statement of professional commitment, the law schools are nothing more than schools for scandal and trade schools for the consigliere of big business and the underworld, provided they provide any meaningful training at all in the skills required to practice law in the modern world.
Without defining the basic knowledge and skills that a legal education requires at the outset, any program or curriculum is doomed to be a futile exercise in wishful thinking. You cannot build a law school curriculum without a foundation of common knowledge among the students.
You can’t teach ethics to students who have never heard of philosophy, who don’t have a command of world history, cultural anthropology or any of the myriad other elements of human knowledge and areas of human inquiry and concern that form the basis for a body of ethical standards or a professional ethos.
It is not the college that a law school applicant graduated from or their score on the LSAT, that should be determining, but what they bring to their law school education in the way of substantive knowledge and intellectual skills.
A few basic standards should be imposed on all applicants for admission to law school, without exception. Among the most obvious admission requirements should be:
- Demonstrable mastery of American English as a written living language and a broad awareness and comprehension of American literature and its association with world literature. The entering law student should also have some knowledge of the literary traditions and representative works of a number of cultures other than their own.
- A thorough command of spoken English and the communication skills of oral interpretation, rhetoric and disputation.
- Knowledge of the history of the world and its peoples in general and the history of our country and its peoples in particular rooted in and coupled with a thorough understanding of Geography, including the descriptive earth sciences and ecology.
- Research skills. Anyone seeking to enter a law school should be able to create an electronic virtual vertical file on any topic, no matter how esoteric in a reasonable period of time. The Internet has made this skill almost trivial.
- Law school applicants should have a conceptual command of mathematics sufficient to understand and deal with modern economics, environmental policy, science and technology issues.
- Law school applicants need a thorough understanding of “science” and the scientific method.
- Business Technology skills are essential. Keyboarding, word-processing, spreadsheets, data base management, computer graphics, modeling and simulation are no less basic tools for lawyers than pens, pencils and foolscap…
Law Schools, through their admissions standards, have it within their power to stop the “dumbing down” of American students which has been proceeding with all deliberate haste throughout our educational system since the early 1960s. Unfortunately, very few law schools seem willing to risk the reduction in cash flow that imposing significant admissions standards on applicants might occasion.
There is enough blame for all
Let’s stop passing the buck. As Walt Kelly had the possum, Pogo, point out, “We have met the enemy and he is us.” Just say, “NO!”
If the law schools just said, “No Admission!” to ill prepared students or, Heaven and the Bursars forbid, flunked out students who could not perform at the level expected of a law student, the message would soon reach the undergraduate colleges.
If the colleges just said, “No!” to ill prepared students… the message would soon reach the high schools.
If the high schools should issue failing grades to students who failed… the message would soon reach the elementary schools.
If the elementary schools would insist on educational performance from the children in each year including kindergarten, the problems we see today would go away over the next 12 years.
The fault lies with the faculty and administration of our law schools, not anybody else.
A modest proposal…
The first two years of law school should be the bridge between the general education required of all students for admission and the practice of law.
The first two years of a modern medical school education generally consist of four core courses, anatomy (morphology and structure), physiology (how systems operate; adding function to form, integrating undergraduate biochemistry and molecular biology into medical science), pathology (learning to recognize disease), and pharmacology (completing the integration of biochemistry and molecular biology into the healing arts), together with ten short courses on each of the basic human systems: cardiovascular, genitourinary, gastrointestinal, blood and circulatory, nervous, endocrine, musculoskeletal, …
The first two years of law school should follow the same pattern:
The year long “Core Courses” would be “The Legal System I and II” (the anatomy and physiology of law as a system) providing the transition from a classical liberal arts education to the Law and “Rights and Remedies I and II”(the pathology and pharmacology of law).
The “Systems Courses,” four to six weeks of intensive study in relatively narrow special interest areas are integrated with the core courses so that at the conclusion of two years the student is ready to perform real legal services under supervision and hang their new “legal practice” skills on the armature or framework of solid conceptual knowledge in the context of historical continuity.
The third year would be a classic rotating internship through a variety of law school sponsored clinics culminating in a summer-long bar review course and the bar examination.
Upon completion of this fourth year they can obtain their degree provided they have passed the bar examination.
A bar examination that truly tests the ability to practice law
Any meaningful bar examination should last a full 40-hour, five-day workweek. Start with a really sophisticated national bar examination over the first two days covering ethics, federal practice and procedure, constitutional law, conflicts of laws, federal taxation, national employment law, commercial law, and federal administrative law; then two more days of local state substantive and procedural law, and a final fifth day of oral examinations conducted before panels composed of a trial judge, an appellate judge, and three randomly selected experienced practitioners.
Students should take this examination at workstation terminals or on laptops with full access to the internet and the more specialized electronic research services including LEXIS and WESTLAW just as they would in a modern law office.
Until the student can pass such an examination they should not be allowed to hold themselves out to the world as a “lawyer” capable of giving independent legal advice and counsel without supervision. Until they can pass such an examination, they must be content to work under supervision as an indentured servant just as medical residents and interns do. Without the knowledge and ability to pass the bar examination outlined, graduation from even the most prestigious law school should not be a ticket to a judicial clerkship or a six-figure starting salary.
After the Bar Exam
Up until this point the students are paying for their own education. After they pass the bar examination they continue for one more year of rotating internship through the law school clinics at a nominal minimum wage just as newly graduated physicians and surgeons learn their craft under supervision.
If they have passed the bar examination and are selected as residents they can work in a clinic for a modest wage supervising interns under the tutelage of a clinical professor. Our judiciary should agree to take as clerks only those students who have completed a residency.
Much like sharks and cobras are ready to kill and eat as soon as they are born, it seems that only law students can emerge after graduation fully capable of earning twice what their peer group in medicine, engineering, science and business earn, just because they graduated from a “top” law school regardless of whether they truly have any insight into the practice of law or any aptitude for it.
Today there appear to be too many law schools graduating too many “lawyers.”
The way to reduce the supply of lawyers is to require more demonstrated intellectual attainment and fundamental knowledge in order to gain admission to law school, and then design the bar examination to limit the practice of law to those really prepared to practice law and serve society. Clients should also refuse to allow their law firms to bill for the services of law school graduates not yet admitted to practice.
Regretfully, those who make suggestions about restructuring the Law School curriculum toward the end of producing more lawyers sharing interests in Science and Society, are often made to feel like some modern day Roger Williams preaching freedom of conscience to a staff meeting of the Spanish Inquisition.
After graduating from a rigorous and meaningful legal education program and passing a bar examination which truly tests the ability to practice law at an entry-level, those attorneys who wish to represent clients in litigation should be educated the same way surgeons, architects and structural engineers are. A period of residency or apprenticeship under the supervision and tutelage of skilled trial lawyers of demonstrated competence and extensive experience should be the minimum requirement for the legal equivalent of the “Board Certification” or “Professional” credential demanded of surgeons, other healthcare specialists, Engineers, Scientists, and even many skilled artisans.
The courtroom should be closed to practice for all but those who have established their right to represent clients before judges and juries. The late Chief Justice Berger was being charitable when he observed that there were “too many Piper Cub lawyers at the controls of 747 litigation.”
We should return to the English common law tradition which recognized a professional distinction between barristers and solicitors. The call to the bar for a barrister requires, in addition to demonstrated skills and supervised experience, acceptance by the peer group — the other barristers and judges — who have actually interacted with the fledgling barrister as they learned their craft.
We might also insist that judges be chosen for our lowest level Courts only from among credentialed barristers and that federal judges and appellate judges be chosen only from among sitting judges whose judicial temperament and scholarship can be examined from public records and the experiences of barristers and litigants who have appeared before them.