October 30, 2007
"The Devastating Obsoleteness of Legal Education"
Posted by Gordon Smith

Earlier today, I discovered Lawrence Friedman's Contract Law in America: A Social and Economic Case Study, written while Friedman was at Wisconsin. It is a study of over 500 contract cases decided by the Wisconsin Supreme Court. This is a portion of the Preface:

Probably nothing has so crippled historical study of American law as the traumatic effect of some fifty jurisdictions. Nothing, that is, unless it is the devastating obsoleteness of legal education, which (except for some meager palliatives in upper-class seminars) tends to develop notions and habits of thought inimical to the study of law either as a branch of human behavior or as a chapter in the book of human ideas. Legal education, in general, seeks to teach students 'how to think and act like lawyers' and turns its back on imparting 'mere facts.' 'Mere facts' (if this means rote learning) should of course not be the prime goal of education; but overemphasis on skills training has severe drawbacks of its own. It substitutes manipulation of data for understanding of data. In general, the law schools fail to teach the legal system as a whole, let alone the legal system as part of society; they teach disjointed fragments of a fragment.

The publication date of the book is 1965, and the breadth of Friedman's indictment (touching all of legal education except a few upper-class seminars) suggests that "skills training" had a broader meaning for him than it has today.

What I really love about this passage, however, is Friedman's vision of the study of law "as a branch of human behavior or as a chapter in the book of human ideas." In an attempt to convey this idea to my first-year Contracts students, I placed the following aspirational statement at the front of my Contracts syllabus (some of the following is taken from the casebook for the course, Stewart Macaulay et al., Contracts: Law in Action):

This is an introductory course on the law of contracts. Note the italics. Despite the unqualified title of the course – "Contracts" – we are not much interested in the structure or content of contracts. This is not a course on contract negotiation or drafting, and we rarely read more than a short excerpt from any contract documents. We study the law of contracts, which encompasses the technical legal rules found in statutes, regulations, and judicial opinions that, among other things, prescribe the requirements of contract formation, provide certain bases for avoiding performance of contracts, and describe various legal and equitable remedies for breach of contract.

But there is more to our study than the mastery of legal rules. We are interested in the law in action. Knowing legal rules is like learning to play scales on a musical instrument. While playing scales may be an essential step in becoming a musician, mastering the scales is not the end goal. Similarly, while knowing legal rules is essential in becoming a lawyer, mastering those rules is not the end goal. We must become experts in understanding how legal rules express themselves in the lives of real people. This requires us to treat the study of law as more than a series of logical puzzles. In the final analysis, our goal is to develop a better understanding of human behavior.

This is a difficult aspiration to fulfill, and I know that I have not always done so. But it is a worthy goal. And it makes for more interesting classes, too.

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