I love Project Runway, Work of Art, and Top Chef. Each of these shows uses a similar formula. Challenge ambitious, technically skilled, designers, artists, or chefs with creative tasks without enough time to thoughtfully complete them, forcing them to take shortcuts, and then judge their clothes, paintings, or dishes on their results not how they got there. Contestants get a mid-course critique from someone like Tim Gunn, Simon de Pury, or Tom Colicchio but mostly it’s taking the technical skills of the craft and then having the confidence to “make it work.” Mistakes that are made affect the way a dress falls, a sculpture engages, or a meal tastes. No one is evicted or jailed if a mistake is made. They are just “out.”
Elizabeth who has worked for SALT as my assistant for three years is now a full time graduate student getting a master’s degree in landscape architecture. She still works at SALT on Fridays, and last week over our fish tacos at “Bubba’s Burrito Bar” she described how her program works. As she described grad school, we shared an “ah ha” moment. Every week new projects get thrown at her without enough time or instruction as to technique—designing environments and building models to illustrate them. “It’s just like Project Runway!” Never enough time, feeling like she is winging everything, and relying on self-discovering new technical skills as she goes along.
There are some who believe this is the way we should teach law in the future because it is cheaper than the current models. It’s not so easy. Unlike tailoring, artistry, culinary arts, or landscape architecture, lawyering requires a true understanding of the structures of government and regulation; an ability to interact with people, technology, and systems, like bureaucracies and complex regulatory environments; and an ethical and professional value system that insists on rigor, integrity, and courage in the face of authority.
On November 19, David Segal wrote yet another critique of legal education in The New York Times. This time he lamented that students leave law school with $150,000 in debt without a clue as to how to practice law. No doubt that the current system for training lawyers and providing legal services to not just the rich, but to the moderate and lower-income clients is not working. It’s time for experimentation, but let’s be smart about it: who’s in control determines the experiment and who benefits.
When we left off my truncated version of the history of legal education with my last post “More History of the Regulation of Legal Education So That We Understand Where We Are and How We Got Here,” the ABA and the AALS were trying to transform the study of law into an academic program with the elite schools insisting that the practical aspects of training begin after graduation not while in school. Once again, I am heavily relying on Robert Steven’s Law School: Legal Education in America from the 1950s to the 1980s. Yale saw legal education as having a dual function, to teach law as a science and to consider as a part of that study how to improve the operation of law: to use a method of inquiry, i.e., the case book method, to train its students and to improve the law by “scientific and analytical study of existing laws, by comparative study of the jurisprudence of other countries, by criticism of defects and suggestion for improvement in the administration of law and in methods of legislation, and by relating law to other institutions of human society….”Report to the Dean, Yale Law School, 1919-20, 259.
Columbia Law School took a slightly different route. Dean Harlan Fiske Stone wrote in 1923 that he understood this concept of a sociological jurisprudence, but “we have failed to recognize as clearly as we might that law is nothing more than a form of social control intimately related to those social functions which are the subject matter of economics and the social sciences generally.” Columbia saw itself as a scholarly, research institution, involving “critical, constructive, creative work by both faculty and students rather than a regime devoted primarily to the acquisition of information.” Columbia had no interest in producing functioning lawyers who could immediately enter practice. Neither did Yale. Nor did Harvard, which was wedded to the Langdellian case book method. Each of these elite models was set up with the understanding that the large law firms where their graduates would find themselves eventually had the responsibility to apprentice them, teaching the actual practice in the first years. The rise of the legal realists in the 1930s brought with them a call for “lawyer schools,” where the art of legal practice would be taught and legal clinics would be an integral part of the curriculum. Law, according to Jerome Frank, could not be learned in a library, but in the halls of justice. Since its inception in 1974, SALT has always supported the integration of clinical education into law school curriculum.
The state university law schools imitated the elites, and the less prestigious law schools which continued to teach working class students and immigrants, at least white male ones, taught students to pass the bar exam, but no one wants to talk about these models. At first, neither the ABA nor the AALS was particularly effective in regulating law schools. In 1921, there was still not a single state that required graduation from law school as a prerequisite to sitting for the bar exam. However, by 1928, all states except for Indiana had at least a compulsory bar examination. By 1930, four states required attendance (although not necessarily graduation) at law school, and in the remaining states, law school or apprenticeship were the permitted alternatives. Law schools were a big business then as they are now. In 1921, there were 142 law schools operating in the United States, and by 1928, that number had grown to 173.
Yet what was going on in the less prestigious law schools should be our focus now (as discussed in the preceding post by Bob Seibel), because those schools fought against the elite model, opting instead for producing lawyers who could pass the bar exams as they became more strenuous under the influence of local bar associations and the ABA. As the ABA and AALS were striving to homogenize legal education, the dean of the largest law school in the nation, Suffolk Law School, and the dean of John Marshall Law School in Chicago fought especially hard at a 1929 meeting, accusing the ABA of creating a blacklist with its approved list and a boycott against the evening and more open bar. Many in leadership in the ABA and AALS believed that only a college education could force immigrant lawyers into acculturation of American values, so the move to homogenize legal education on the elite model did eventually won out. “Xenophobia, economic concerns, and professional vanity, coupled with a genuine concern for the public interest,” concludes Stevens, led to regulation and standardization.
As regulation made it more expensive to operate a law school, the number of law school students remained high: in 1928, before the stock market crash, there were over 46, 300 students studying law. That number dove in 1931, during the Depression, to just under 39, 500 but rose again in 1935 to almost 42,000. (There are close to 67,000 law school students in the class of 2014.) The number of law schools continued to rise as well: 173 in 1928, 182 in 1931, and 195, close to current figures, in 1935. The number of students enrolled in ABA approved law schools rose, during this period, so that by 1935, close to half of enrollments were in those sanctioned schools. A familiar discussion was held then, as now: too many lawyers, too many law schools. But Karl Llewellyn lamented against this common cry. “…the bar was not overcrowded; it was just restricting its services to more elite groups and ignoring the less affluent majority of the population.”
By the close of the 1930s, in 1938, there were 101 ABA-approved law schools with 63.7% of the national law school population with a decrease in the number of law school students, cheerfully announced.
This all sounds frightfully familiar.