Tuesday, September 26, 2006
Why law school is dysfunctional
--- Part I of a however many parts I want to write series ---
At the highest level of abstraction, law school is dysfunctional because law students are dysfunctional. Law students are a self selected group of risk averse (read, calculatedly neurotic) , competitive overachievers. That's the highest level of abstraction. However, like almost all generalities, it reveals almost nothing concrete. So the search for an explanation continues ...
To understand why law school is the way it is, the first place to start is the first place law students start -- the first year class. From kindegarten to college, the classroom has been a place of instruction. Teachers teach material to students. Students do homework which reinforces material. Students study material. Somewhere along the line, students master material. Students take tests and get grades.
Law school does not follow this paradigm of "teaching". There is no "teaching" going on in a doctrinal law school class to speak of ... at least not in the way most people would understand it. Law school professors do not teach, they ask questions. All sorts of questions. Some questions require students to remember minute details, others demand that students know which details are important and which are unimportant. How do you know what kind of answer the question requires? That's a silly question itself, isn't it? That's just a taste. The obvious question is almost never asked in law school, because in a room full of overachievers, everybody already knows the answer to the obvious question. AND, everybody knows that asking the question everybody already knows the answer to is no way to distinguish the good law students from the merely very good law students.
This phenomenon needs to be parsed out a little more. Normally, when you read something -- an article or whatever -- the main points are the most important things to remember. The smaller details are not so important. However, reading for law school like that is the path to ruin. Everybody already knows the main idea, or, more accurately, it is assumed that everybody. So there's no reason to ask about it. What happens is that the small things, the unimportant things, have now become the important things. The same goes for the exam. 100% of the class understands the main ideas. Then there are the subtler points of the law -- maybe 75% of the class has got a good grip on them. Then there are the real persnicketedy lawyerly points of law -- there's only a few of these, but only 33% of the class gets them. SO, if you want to make hey on a law school exam, and to do that you have to not only do well, you have to do better than your classmates, you have to go after the minor points and know them well.
The small things become the important things.
Which brings me to what I started. Law school instruction is not really instruction at all, and the amount of class time in which students learn "what the law is" is pretty small. For a first year class, almost every single person buys a review book that tells him the law. Because literally every person does this, professors get reasonably good answers on their exams. And by reasonably good I mean that they get grades which they can easily fit into a nice curve. Because law students by their nature will do whatever it takes to master the material and learn the law on their own, the fact that the instruction they are receiving has failed them so miserably remains hidden.
I submit to you that if the entire market of commercial review books were to be somehow consumed by a disaster that wiped it off the face of the earth, the case law system of law school instruction would end within five years.
Maybe the case law system is the problem. To learn the substantive law, reading cases is certainly NOT the most efficient way. To learn legal reasoning -- which is code for learning how to make lawyer type sounds and sentences and nothing more -- then maybe the case system is not so bad. I mentioned legal reasoning. What is it? Who knows. I joke that it's making lawyer sounds, but I think that there is some truth to that.
It's like pornography, I can't define it, but I know it when I see it. I know it exists, because I do it. At first it was unnatural, but now it requires a lot less effort to use a lot of words to say as little as possible. I do know that a big part of legal reasoning is being comfortable making hair-line distinctions even if they lead you to a result that [seems to a non-lawyer] to be patently ridiculous. When you can say to yourself without any sort of cognative dissonance things like -- "yeah, defendant is liable for [whatever tort], but the remedy should be nothing" -- you're there man, you are there.
To understand why law school is the way it is, the first place to start is the first place law students start -- the first year class. From kindegarten to college, the classroom has been a place of instruction. Teachers teach material to students. Students do homework which reinforces material. Students study material. Somewhere along the line, students master material. Students take tests and get grades.
Law school does not follow this paradigm of "teaching". There is no "teaching" going on in a doctrinal law school class to speak of ... at least not in the way most people would understand it. Law school professors do not teach, they ask questions. All sorts of questions. Some questions require students to remember minute details, others demand that students know which details are important and which are unimportant. How do you know what kind of answer the question requires? That's a silly question itself, isn't it? That's just a taste. The obvious question is almost never asked in law school, because in a room full of overachievers, everybody already knows the answer to the obvious question. AND, everybody knows that asking the question everybody already knows the answer to is no way to distinguish the good law students from the merely very good law students.
This phenomenon needs to be parsed out a little more. Normally, when you read something -- an article or whatever -- the main points are the most important things to remember. The smaller details are not so important. However, reading for law school like that is the path to ruin. Everybody already knows the main idea, or, more accurately, it is assumed that everybody. So there's no reason to ask about it. What happens is that the small things, the unimportant things, have now become the important things. The same goes for the exam. 100% of the class understands the main ideas. Then there are the subtler points of the law -- maybe 75% of the class has got a good grip on them. Then there are the real persnicketedy lawyerly points of law -- there's only a few of these, but only 33% of the class gets them. SO, if you want to make hey on a law school exam, and to do that you have to not only do well, you have to do better than your classmates, you have to go after the minor points and know them well.
The small things become the important things.
Which brings me to what I started. Law school instruction is not really instruction at all, and the amount of class time in which students learn "what the law is" is pretty small. For a first year class, almost every single person buys a review book that tells him the law. Because literally every person does this, professors get reasonably good answers on their exams. And by reasonably good I mean that they get grades which they can easily fit into a nice curve. Because law students by their nature will do whatever it takes to master the material and learn the law on their own, the fact that the instruction they are receiving has failed them so miserably remains hidden.
I submit to you that if the entire market of commercial review books were to be somehow consumed by a disaster that wiped it off the face of the earth, the case law system of law school instruction would end within five years.
Maybe the case law system is the problem. To learn the substantive law, reading cases is certainly NOT the most efficient way. To learn legal reasoning -- which is code for learning how to make lawyer type sounds and sentences and nothing more -- then maybe the case system is not so bad. I mentioned legal reasoning. What is it? Who knows. I joke that it's making lawyer sounds, but I think that there is some truth to that.
It's like pornography, I can't define it, but I know it when I see it. I know it exists, because I do it. At first it was unnatural, but now it requires a lot less effort to use a lot of words to say as little as possible. I do know that a big part of legal reasoning is being comfortable making hair-line distinctions even if they lead you to a result that [seems to a non-lawyer] to be patently ridiculous. When you can say to yourself without any sort of cognative dissonance things like -- "yeah, defendant is liable for [whatever tort], but the remedy should be nothing" -- you're there man, you are there.
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