April 21, 2010
Minding Our Own Business: In Praise of Doctrine
Posted by Bob Lawless

Because I am coming late to the forum, I won't rehash many of the fine points that already have been made. The market will reward law schools who do a better job of training lawyers in transactional work as well as in fundamental skills from "adjacent" disciplines like economics, finance, accounting, and statistics. In recent years, however, I have become increasingly concerned that our students are leaving law school with less and less knowledge about basic legal doctrines, by which I mean the rules judges and lawyers expressly state they are using when resolving legal claims. My concern over doctrinal training may be a little bit of a heretical position given the overall theme of this forum, but knowing legal doctrine is much of a practical skill as any that have mentioned in the forum.

There are at least three reasons why I think students are leaving law school with less knowledge about legal doctrine than their recent predecessors. First, I am counseling more students who come to me not having taken fundamental classes in areas like administrative law, business organizations, and commercial law (to name a few). Not every student, of course, can take every class, but my sense is that there is a greater tendency for core courses to be skipped than was true even ten years ago. Second, in my classrooms, students seem to be displaying a greater ignorance of doctrines or rules they should have learned in other courses. Third, when students talk to me about the bar exam, there seems to be more gaps between what they took in law school and what gets covered on the bar exam. As someone who cares a lot about making sure we get our facts right, I am sorry to say that I don't have any solid measures to prove I'm right. My reaction is based just on what I have seen.

If I'm right, why does it matter that students perhaps leave law school without a solid ground in various legal doctrines? Effective lawyering requires many different skills, but knowing the rules of the game is surely one of them. A student who knows how to draft a merger agreement but does not understand the difference between an asset sale and a corporate merger--an example that comes from a very recent experience--is surely just as dangerous as one cannot draft the document at all. Moreover, teaching doctrine is one thing that law schools can actually do pretty well.

The danger with this point is to be misheard. To paraphrase Gordon from an earlier post, I trust no one is questioning my bona fides on the importance of interdisciplinary work and on the importance of getting that perspective into a classroom. And, I am not contending we need fewer clinical or simulation experiences for students. My own courses feature pedagogical experiences as arguing motions and drafting security agreements. As with many things, I am more complaint than solution. There may be some self-correction. I sense there is a small amount of pressure from employers for students to take more traditional law school courses, which in turn will end up pressuring the students to demand that their law schools give them a basic knowledge set before leaving law school.

But, if law faculty are honest with themselves, course offerings are just part of the issue. In the classes we do offer, we teach less doctrine than we used to because we are increasingly removed from the professional lives of lawyers. When we cover cases, we often ask the students how they would have ruled instead of focusing on what the court actually did rule. Complex statutes perhaps don't get the time they deserve because they're difficult to teach or intellectually uninteresting. At an individual level, there is perhaps one suggestion I would make to any law faculty member. If you don't already do so, try to attend or, better yet, get on the program for a CLE or another professional meeting for practicing attorneys. And, try to do it annually if not more regularly. Stay for the whole event and listen to the problems the attorneys discuss and then bring that discussion back into your classroom. (And, I bet the non-academics reading this post will be surprised to learn how many law professors are not already doing this.)

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