University of Houston Law Center Faculty Blog

Dear David, 

Of course the DOJ had clients.  We called them “the people.”

I suppose my quibble is about what I view to be a false dichotomy between intellectual endeavors and practice endeavors.  For example, in my line of work, fact development is not done in a vacuum.  Rather, law and facts are developed in a congruous fashion in light of the policies behind the law and the consequences of alternative outcomes.  I thought that this is what we were teaching in law school.  Teaching proper fact development is crucial to that process.  And of course one should not ignore the practical realities, such as: that clients are troublesome; the difficulty of being a repeat player before an administrative agency when you have a demanding client; dealing with difficult counsel; and administrative and judicial processes, to name a few (i.e., the impediments to and structures for good policy).  And you are right that transactional planning and dealing with clients are important skills to be communicated, and I do take them seriously (you are welcome to visit my antitrust class to confirm my seriousness).  But again, to me these are not either/or propositions wherein we teach x at the expense of y. 

But to the extent that Stracher is correct and that we in the academy are somehow behaving badly, perhaps the blame should not lie within just academe.  Maybe the blame lies with the Bar.  The articling system could be viewed as a barrier to entry.  So, too, can the bar.  It serves no practical purpose, except to teach one how to commit malpractice (e.g., I can’t consult the statute in a UCC question, so I’ll tell you what I think the law is.)  So we perhaps teach the law and the intellectual issues to a greater degree because the Bar tells us to do so (although I have the luxury of not teaching a single bar course).  Erecting the entry barrier and then shoving students through it serves as a powerful signal as to what the Bar views as important.  Thus, if the Bar values things such as an understanding of economics and client relations, it has a lousy way of showing it.

Despite Bar protestations to the contrary, another issue is that realms of law are highly specialized.  It would be impossible for a law school to provide on the job training that would prepare students for all possible realms of practice.  Thus, we are back bellying up to the Bar, who are not inclined to supervise every law student we have. 

Also, take note of law firm hiring practices.  The top law firms boast of hiring the top 10%, regardless of course selection.  They value law review over clinics and clerkships over other experiences.  The people who pay the overhead for this place, the students, read that signal loud and clear, and yet we are to blame for the output.  I believe ours is a derived demand, a function of the signals that the Bar sends to our students. 

In short (a good closing after a long soliloquy), I reject this notion that there is a distinction between the intellect and the practical.  And to the extent that lawyers are frustrated with what we are doing with our students given limited resources, they need to look no further than to themselves for the answer. 

Best, Darren

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Darren, the Stracher piece is a mild call for a corrective to a skewed educational system. Yes, there are occasions for intellectual debate in the law. But they are rare, compared to other things.

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!

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I read Stracher’s piece this morning, and was devastated to discover that being a lawyer is not about intellectual debate. 

I guess it explains a lot of wasted meetings at Justice.  It also explains why I incessantly get calls asking me to file amicus briefs—lawyers don’t engage in intellectual debate, they instead run to the halls of academe to provide it!   (link to Stracher’s piece)

With respect to the proposal of postgraduate work (also known as the articling process), in the daze of my youth I wrote a piece entitled “why have a bar exam?” calling for the abolishment of the bar exam.  For some reason the Utah Bar J. refused to publish it.  One proposal I considered was the articling process.  This is what I wrote:

            A final alternative [to the bar exam, which I advocate abolishing] could be a return to the articling process.   In the days of yesteryear, depending upon how far back one goes, budding lawyers studied for a year or more under the supervision of a more experienced attorney either just after leaving the farm, high school, college, or after graduating from a law school.   These more experienced attorneys would work closely with the new lawyer, and would determine the new lawyer’s competency to practice law after a year.   This articling method could work in Utah as well.   New attorneys could apprentice either as a clerk for a judge, an associate in a law firm, or even in a government position.  Their immediate supervisor(s) would write a letter to the Bar at the end of the year, commenting on the applicant’s ability to practice law.  

            There are two problems with this method, however.  First, the articling system could be abused by senior attorneys, who could use it to force the candidate to be an indentured servant with the explicit sanction of the bar (rather than do so implicitly by the present practice of imposing indentured servitude by the device of calling the candidate an “associate”).  Moreover, the training is likely to range from outstanding to wholly inadequate, or the useless by using the candidate as a runner for the supervising attorney or as office help in operating the copying machines, keeping the office clean and making sure the coffee is hot.   There is even the risk that the candidate might be called an “intern,” and we all know what can happen to and by persons called interns.  While a complaint process might be established to curb abuse and maintain some minimal level of competence of those who would train the young, the hassle of the bar doing so may be more than it is worth.

            A second concern is that articling could result in a law firm not adequately training the candidate or simply passing along the incompetent to prey upon the public.  It may be too much trouble to provide adequate training or to insure the less than competent do not become members of the legal profession.  While the firm will likely not employ the unworthy candidate after the period of articling, some poor member of the public may well employ the candidate to their regret.  On the other hand, the truly creative and independent candidate might find themselves at odds with the firm where they spend their year of servitude.  Such a circumstance might deprive the public of a lawyer who will make a difference because the establishment does not often appreciate those who do make a difference.

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