Hole vs. Donut: A response to Darren Bush
They are possible in larger doses for people in the Justice Department or academia because they are in a rarified atmosphere; they don’t have clients and can afford “wasted meetings” that other lawyers could not. Yes, law school should prepare people for those relatively rare moments of intellectual debate, because they are important. But you have focused on the hole in Stracher’s piece rather than the doughnut. Most of the law is not intellectual debate. Instead, it is about fact development, transactional planning, and such matters—which require a lot of intellect, but are not developed very well by law school. They determine whether lawyers serve their clients well or poorly. You know this to be true. That is the point, and it’s one that is important enough to take seriously. And that’s why Peter Hoffman sent this article around.
Further, the concept that “articling” can supply what is missing was, indeed, daze of youth!
Perhaps a solution is in the rethinking of the law curriculum. Attempting to teach students both the basics for the intellectual exercise of law while simultaneously attempting to address the practical realities of the profession does not seem to be the best method of generating the best possible lawyers. While having access to internships, externships, clinics, and other practical experiences are useful, not having them as part of the core/required curriculum is somewhat of a travesty. I would propose the addition of an additional year of law school. During this fourth year, all potential graduates would be required to work through the law schools, under the supervision of faculty attorneys, to provide legal services to the public; essentially turning the clinic program into a requirement for the fourth year in order graduate.
I believe instituting a more fleshed out and carefully structured version of this idea would not only provide all law students with the practical experience necessary to be better lawyers, would save the law firms and public sector from having to provide so much on the job training, would raise the regard of the law profession in society in general, allow students to focus on the intellectual aspects of law in the beginning of their law school journey, and provide an additional income stream for the law schools. I don't know if there is something in the law school charters or a directive from the Bar which prevents lawschools from engaging in the practice of law commercially, but if those exist and could be changed, it would seem that the law schools would then be able to essentially take over the articling concept Professor Bush promulgated, without so many of the negatives. Further, working under dedicated faculty attorneys may well address the issues that Professor Crump has raised. Moreover, the students would be able to earn money practicing law, begin to pay off their loans, and still provide the law schools with an income stream.
Professor Crump utilizes a valuable analogue in harkening to the doughnut and its hole; however, he fails to acknowledge the hole is the core of the doughnut. (Its true value has been realized in the profits of the "Doughnut Hole" as a commodity in its own right). Although unlike doughnuts, the intellectual core of law school can't be so easily extracted without negatively affecting the whole. Law School could focus more on practical applications, but then when laws change, as they are bound to do, those students trained under such a curriculum are not in a position to understand the evolution of the progression or the underpinnings of the rules they inherit. Law Schools serve students well by teaching them to think in new ways. Thus, students trained by focusing on the intellectual core will ultimately have the foundation to be the scholars and practitioners who make, revise, and progress law to better serve societal needs. Doughnuts w/o their holes, like law students trained without theory, are left to be consumed or passed up.
Is this not the more bromidic argument that non-academic attorneys get into as to whether law is a profession or a trade? My point is, does it really matter? Whether you have your name stitched on the breast of your shirt or your initials embroidered on your french cuff, it matters little. The philosophy of the law is a wonderful thing. It is a joy to ponder and to argue. Ultimately, however, law is a means, in our capitalist society, of making a living for those who graduate from law school. A student trained in the art of legal philosophy and not trained in the practical practice of the trade is little more than a ne'er do well, a prodigal, bootless, banal, otiose, resultless, unsubstantial, a sluggard, or however you wish him or her to be labeled. The point is that one without the other leaves the newly minted law student bankrupt in the area of practice practicality. Nobody wants this. To suggest that "articling" is going to balance these two is just nonsensicle. Who would rather overturn the entire system of training lawyers than to simply harmonize our present law school curriculum to account for more practical training?
I refer you to my blog (http://www.susancartierliebel.typepad.com) which "encourages" those who have the desire, to open their own law practice right out of law school. Please read my articles under the title heading, "How Law Schools Fail the Entrepreneur."
Law Schools have obligations beyond teaching students how to think like lawyers. Before there were law schools, how did new lawyers learn their trade? And yes, law professors are offended by that term, but then, again, I'm offended at spending $100,000 presumably just to get on a cattle car with every other law student, shipped off to law firms because law school failed to teach me how to actually practice as a lawyer, a position I maintain they have an absolute responsibility to do with equal measure.
At Quinnipiac School of Law, Hamden, CT, I have been teaching a course on How to Hang a Shingle Right Out of Law School for seven years. And 20% of my students have very successfully done just that (with not even one grievance.) According to most professors, this would be akin to malpractice. Let's start giving students, the paying customer, what they really want.
http://www.susancartierliebel.typepad.com