One of the oldest platitudes in American legal education is that the central task of the law school is to teach the student to "think like a lawyer." This belief is captured vividly by the words of the famous Prof. Kingsfield, who, although a novelistic creation, is merely echoing conventional legal academic discourse on the subject: "You teach yourselves the law, but I train your minds. You come in here with a skull full of mush; you leave thinking like a lawyer."
Kingsfield is a parody (I guess), but anyone who has spent much time in legal academia has heard something similar repeated on many occasions. Here is a criticism of Brian Tamanaha's call for greater differentiation in legal education, in the form of academically versus vocationally oriented law schools:
More than teaching students what to think, the law professor must—like the old adage about teaching a man to fish so he can feed himself for a lifetime—teach students how to think. Whether the client is a corporation whose counsel would’ve emerged from one of Tamanaha’s elite, three-year programs or an average Joe whose lawyer was herded through a cut-rate, two-year school, all clients need and deserve a lawyer who thinks as well as she can.
And here is an argument that the traditional law school class focused on the parsing of appellate court decisions teaches skills that are critical to the practice of law:
Reading, writing, and reasoning skills, which are covered by the conventional law school curriculum, are the sine qua non of being an attorney: one cannot be an effective attorney if one cannot read, write, and reason . . . Perhaps reading, writing, and reasoning skills are still given too much space in the law school curriculum. But I do not think so, for two reasons. First, I still encounter third-year students who have not picked up these requisite skills on the eve of graduation. For them, there is not too much of the conventional courses that teach how to read cases, how to interpret statutes, how to see that one doctrinal line dovetails or is in tension with another doctrinal line, and so forth – there is too little of it. Second, if one graduates practiced in the art of figuring out what the law is, one can pretty much figure out how to take a deposition. But the reverse is not true: if one has practice taking a deposition, but lacks the skills to be able to figure out what the law is, the next deposition in an even slightly different area of law will be a disaster.
These sorts of arguments are no less puzzling for being so commonplace. Consider some questions:
*How plausible is it that law professors teach adults who have enjoyed the benefits of a minimum of 17 years of formal education before beginning law school “how to think?”
*What does it mean to teach students to think, or to reason? Does it mean teaching students logic, or rhetoric, or what exactly?
*Does the traditional law school classroom experience improve students’ basic reasoning skills? If so, how does it accomplish this?
*What does it mean to teach people to think like lawyers? How is thinking like a lawyer different from ordinary thinking?
*Why is the modal law professor in the contemporary American law school, that is, someone who is now years or decades removed from a very brief encounter, if any, with a very narrow slice of the very diverse world of legal practice(s), well-positioned to train people to think like lawyers, given his or her extremely limited first-hand exposure to that experience?
*Does legal education produce significant improvements in reading and writing skills? If so, how? Is the claim here that legal academics teach people how to read and write like lawyers? Again, how are these skills different than reading and writing in general, and why are law professors, given their backgrounds, qualified to impart these skills?
*More generally, how is it that law professors are particularly qualified to teach anybody anything? It’s one of the curiosities of the American educational system that, as one ascends in the hierarchy of teaching, one needs less formal training in being a teacher. Elementary and secondary school teachers are required to study educational theory and to undergo formal apprenticeships. Most university faculty have no formal training in education per se, but at least they usually acquire practical experience in teaching as graduate students, before they become full-fledged faculty members. By contrast, it’s not unusual for legal academics to have literally no teaching background of any kind before they are unleashed on their students.
What law professors are good at is mimicking the professors they had in law school. That is, they (we) are more or less good at giving the impression that we know what we’re talking about when we talk about law. This is accomplished mainly by donning various sorts of authoritative personae, which, while not often quite as florid as that employed by the egregious Prof. Kingsfield, are, like his, prone to being punctured by even a modicum of critical inquiry.
I don’t mean to exaggerate: law professors may often do a fine job of teaching their students a certain vocabulary, certain stylized forms of argument, certain rhetorical devices, certain modes of professional acculturation, and so forth. But if we teach students “how to think” (let alone “how to think like lawyers”) I remain unaware of how this impressive-sounding feat is accomplished – or indeed even what it means.