The debate over American legal education: theory v. practice.

The New York Times on Sunday published a front-page critique of American legal education entitled “What They Don’t Teach Law Students: Lawyering”. The main criticism seemed to be that “Law schools have long emphasized the theoretical over the useful,” resulting in law school graduates who still need their employers to teach them how to “draft a certificate of merger and file it with the secretary of state.”

This criticism is reflective of a longstanding debate in American legal education over how much emphasis to place on legal theory over the nuts and bolts of legal practice. That debate has been aggravated in the last few years by what the Times describes as “a historic decline in hiring.” The legal services market has shrunk for three consecutive years, the Times reports, and the top 250 law firms have lost nearly 10,000 jobs since 2008.

American law schools have responded to that debate by offering more clinical opportunities for law students to work with practicing lawyers to help real clients, and transactional offerings that try to teach legal theory by having students role play through typical legal transactions. The merits and challenges of these additions to the legal curriculum have been for many years hotly debated among law faculty.

As someone who has been a law professor for more than 30 years, you might assume that I am among the traditionalists in legal education, and you would be right. Law school does not seem to me the right place to try to teach legal practice because there are so many different specialties in the law, each of which can take years to master. And as the Times itself asks, “If newcomers in medicine, finance, and other fields are trained, in large part, by their employers, why shouldn’t the same be true in law?”

What American law schools have always done well is to make students think about the underlying theory of laws, why laws exist, and what purpose laws serve. Law school is probably the only time in the lives of most lawyers that they have the time and opportunity to consider those theoretical concerns, the understanding of which makes them more effective and successful advocates. More than anything else, I believe, a deep understanding of the law is what law students need, and what employers really want in the lawyers they hire. That’s why employers rely on student grades in the traditional law school courses as the primary factor in hiring.

But what about the law school graduates who can’t now find jobs? One law school critic observes that, “They can’t hang a shingle and start on their own. Many of them are now asking their schools, ‘Why didn’t you teach me how to practice law?'”

That, it seems to me, is a different issue, and a function of the rapid increase in the number of American law schools and the number of law school graduates they are producing every year. There are now 200 law schools in the United States, some only recently opened, producing about 45,000 new American lawyers every year. The Times reports an 11.5 percent drop in law school applications this year, but still no empty seats in any of those 200 law schools.

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