Erwin Chemerinsky, Law School Deans, Law Schools

Law School Dean Thinks Law School Is Important

It's not that Dean Chemerinsky is wrong, it's just that a consistent blind spot clouds his argument...

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Here’s a dog bites man story: a respected dean who just got a new law school off the ground thinks law school is super important. The presses have been appropriately stopped.

The New York Times is exploring the merits of expanding apprenticeship as an alternative to law school for prospective lawyers. Lat weighed in on the side of apprenticeships.

In a post entitled Going to Law School Is More Important Than Ever, Dean Erwin Chemerinsky countered those on Lat’s side by offering a full-throated defense of the law school model. It’s thoughtful, but ultimately succeeds only in exposing the problem with a legal system reliant on attending three-year institutions to produce attorneys….

It’s not that Dean Chemerinsky is wrong, it’s just that a consistent blind spot clouds his argument:

A century ago, the training of lawyers moved away from apprenticeships and into universities to provide standardized, in-depth education across an array of subjects. The law and the problems that it must address are obviously far more complex today, making law schools more important than ever.

The law is indeed more complex, but that’s why over the same period the industry has shifted away from generalization. And yet, his post is predicated on the idea that all lawyers must be, at some level, generalists. But let’s face facts: the intricacies of ERISA work have little bearing on the life of a litigator. Indeed, law school and the bar exam are the last vestiges of the notion that it behooves someone entering the profession to have some knowledge about every aspect of the law.

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And this speaks to the cost issue that Dean Chemerinsky never broaches: giving everyone the option of learning a little about everything is very expensive. To the extent we have a justice gap in this country, the seeds are planted when prospective lawyers get so in debt attending a school riddled with experts in subjects the lawyer will never practice that going into work that helps the indigent or otherwise underserved is simply not a financial option out of law school. This isn’t to say law school isn’t a great option, or even a “better” option intellectually, but apprenticeships at least open doors for more lawyers without the burden of debt.

Speaking of generalization, this suggestion may be exceptionally welcome to all those who just took the bar exam, but why aren’t lawyers licensed by practice area? Rather than forcing every lawyer in the state to memorize random facts about commercial paper that they will promptly forget once they leave the testing hall, construct one test that licenses litigators and requires specific knowledge of that area of law, another for trusts and estates lawyers, etc. The material on each could be more challenging because we would expect the person taking each component has taken the time to get deeper into each subject. Aspiring generalists can still subject themselves to the complete test if they want, but the consuming public would be better off with attorneys required to demonstrate deep knowledge of their practice area rather than superficial knowledge of everything under the sun.

Chemerinsky touches on the concept of specialization, and yet his argument in the context of law school rings a tad hollow.

In their second and third years, students take specialized courses in areas of their greatest interest and learn from experts in particular fields.

There’s no denying that the later years of law school afford students a great intellectual opportunity to study law from the ivory tower, but while international law was fascinating, it didn’t offer many professional advantages. Hell, I represented the United Nations and nothing in my international law course ever came up. The complexity of the practice that Chemerinsky identifies is just not addressed by the majority of 2L/3L courses. That said, law school is amazing for providing the opportunity to grapple with those topics academically, but it’s not really providing specialized professional training. Unless you’re going to be a professor.

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Apprenticeships also can train lawyers, but the education is likely to be much more uneven and depend on who is providing the training. Thoroughly training an apprentice in what is needed to be a lawyer is a daunting and expensive task and it is unlikely that many attorneys would undertake this responsibility.

That’s true of law schools as well. Arthur Miller is better at teaching you constitutional law than whoever teaches that at Bumblef**k Law School. That doesn’t mean students can’t get a good education at other law schools, but let’s not pretend that law school isn’t “uneven” and dependent “on who is providing the training.” More to the point, apprenticeship does still happen because law schools are incapable of teaching practice the way having a job working for an experienced partner does. First-year associates are expensive because their employers basically teach them how to do their jobs. Or it would be expensive if the cost wasn’t passed along to the consumer. It’s true that many attorneys would balk at having to take on apprentices, but that’s why some firms take on summers and first-years and some only hire lawyers with experience under their belts.

Again, Chemerinsky’s argument is a powerful case for why someone choosing between law school and an apprenticeship might want to go to law school, but it’s not doing much for why apprenticeships should be entirely off the table either alone or in combination with a different kind of law school.

Nor can apprenticeships provide the beneficial knowledge that comes from an interdisciplinary university education. Corporate lawyers are well served learning about economics and business. Criminal lawyers benefit from knowledge about psychology. Environmental lawyers gain from knowing about public policy.

So go to college. This has nothing to do with the merits of law school proper.

If you or a loved one were found to have cancer, would you want oncologists and surgeons who were educated at top universities and then were trained by experts, or ones who learned medicine entirely through apprenticeships? The answer is obvious and is no different for law than for medicine.

This is perhaps the worst analogy in the long and storied history of analogies. Actually medical school professors are experts because they are practicing doctors. That oncology rotation is an apprenticeship with the best oncologist around. The more apt analogy is:

If you or a loved one were found to have cancer, would you want oncologists and surgeons who spent three years learning, not so much medicine as much as the philosophy of medicine from brilliant academics most of whom gave up performing actual surgery, or ones who spent years shadowing one of the most respected surgeons in the country?

The answer is obvious and is no different for law than for medicine.

Do-It-Yourself Lawyers [New York Times]
Going to Law School Is More Important Than Ever [New York Times]
Apprenticeship Should Be an Option Instead of Law School [New York Times]

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