Sunday, November 27, 2011

The Scales and Arpeggios of Learning the Law

-- Posted by Neil H. Buchanan

In my post last Tuesday, adding to Professor Dorf's response to the now-infamous NYT article in which David Segal critiqued (nearly every aspect of) American law schools, I defended the "case method." I argued that the case method is as an essential part of learning and understanding the "practical" things that go into the actual practice of law, including writing and negotiating contracts. I also spent a bit of time discussing the value (and the process) of producing legal scholarship, but it is fair to say that the bulk of that post was devoted to a defense of the value of studying law through the careful reading of cases, as a means to learn and understand the principles of law.

In an email, a reader suggested that I had missed the real point of Segal's article, which might not have been a call for dropping the case method and "teaching black letter law" at all, but rather an argument that "a thorough, supple and deep understanding [of the substantive law, taught through the case method] may be a necessary condition, but it’s certainly not sufficient" to prepare students "to actually draft or negotiate a contract." In other words, Segal might have been saying that law schools should do MORE, not that anything they are currently doing is actually wrong on its own merits.

Reasonable minds can differ on whether Segal was actually making that more subtle point. I remain convinced that, although he made a few feints in the direction of constructive suggestions, the article was aimed at attacking the case method and advancing the idea that imparting "practical knowledge" requires that we stop having law students study the nuances of the law through reading old cases. Even if my take is wrong, however, the Times's editorial board added their two cents on Saturday (after I received the email noted above). In the process of offering some otherwise genuinely-useful thoughts on how to improve legal education, they explicitly attacked the case method, which they dismissed as "professors’ grilling of students about appellate cases."

Lest there be any doubt about their opinion of the case method, they added: "The case method has been the foundation of legal education for 140 years. Its premise was that students would learn legal reasoning by studying appellate rulings. That approach treated law as a form of science and as a source of truth. That vision was dated by the 1920s. It was a relic by the 1960s." Even if Segal's article was not an attack on the case method, therefore, we can certainly find high-profile opinion-makers affirmatively claiming that the case method should be abandoned.

Adding to my comments last week, therefore, I will take some time here to further defend the case method as not only useful, but logically unavoidable. I will then turn to the question that my email correspondent raised, regarding whether law schools should simply be doing more.

Suppose that someone told me that I could no longer use the case method. I could not, therefore, require that my students read and prepare to discuss decided cases, ready to be "grilled" on those cases in class. What would I do?

To use an example from the basic course in income tax law, suppose that I wanted to teach my students about the tax treatment of gifts. Of course, I would first (as I already do) have them read section 102 of the Internal Revenue Code, subsection (a) of which offers the General Rule: "Gross income does not include the value of property acquired by gift, bequest, devise, or inheritance." Nowhere does the section (or the Code) define "gift." Currently, therefore, I (and, I expect, most other tax professors) have the students read the Duberstein case, in which the U.S. Supreme Court offered the minimally helpful guidance that a gift, for income tax purposes, exists when the donor's intent arises from "detached and disinterested generosity," or from "affection, respect, admiration, charity, or like impulses." I then have the students read some subsequent cases that have struggled with the Supreme Court's dodgy language, showing where the holes remain in the doctrine. I follow that up with some examples applying this incomplete definition of "gift," forcing the students to think carefully about the state of the law.

Without having the students read Duberstein or any other cases, what would I do? I could simply tell them that the quoted language above is the definition of "gift." I could then go straight into a series of examples, to explore the limits of that definition. I could, for example, describe a situation in which Businessman A gives Businessman B an expensive car, in gratitude for the help that B has provided to A over the years. We could discuss whether this meets the "detached and disinterested generosity" and/or the "affection, etc." test. I would then enrich the analysis by adding the hypothetical fact that A has deducted the value of the car from his company's taxes as a business expense. Would that change the result?

Of course, all I am doing is describing the key facts of the Duberstein case itself. Maybe other professors are simply better at coming up with hypothetical facts than I am, but I cannot imagine discussing any legal concept relying only on made-up facts. If the actual cases that we see in real life are not "practical" applications of the law, what is?

It is not just that abandoning the case method would ultimately be merely a cosmetic change, with the essence of the case method re-emerging in any well-taught course. There would also be a genuine loss from not having the students read important decisions. One of the most important aspects of Duberstein, for example, is that a reader of the Court's opinion cannot help but note that the court is trying to punt the issue, to guarantee that the Court will never have to deal with the question of gifts again. It does so by calling the determination of "gift" -- which is clearly a legal question, involving as it does an analysis of the meaning of a statute -- a question of fact, which allows the Court to declare that the trial courts' decisions must be granted extremely high deference. (Depending upon how one reads Duberstein, they might even be crafting something even more deferential than "clear error review.")

Studying the case, therefore, teaches the students not just how difficult it is to draw the line on defining a gift -- which in turn provides practical guidance, allowing future lawyers to advise their clients what to do and say to make clear when they mean to make a gift -- but something important about how lower courts (and, therefore, the IRS) will think about the likelihood of being reversed. It also, as an added bonus, tells students something important about the way the Supreme Court treats tax cases in general (which is to say, not very carefully, far too often).

I should add that there are many courses and subjects for which the case method is an inappropriate way to teach the material. For example, I do not use the case method when I teach Law and Economics, nor when I teach a Tax Policy Seminar. I do think, however, that the case method is so important to the teaching of much of the law school curriculum (especially the first-year curriculum, as well as gateway courses like basic tax and antitrust) that it is essential to beat back this know-nothing attack on the case method as "a relic."

These further thoughts on the case method, however, still do not address the question posed by my email correspondent: Even if both Segal and the editors of the Times are wrong to attack the case method, is it not still possible that the case method is insufficient as a teaching method? Should law schools not also prepare students by having them draft and negotiate contracts, and prepare actual tax returns, and cut plea deals, and write cease-and-desist letters, and execute deeds? The short answer to that question is, of course, yes. Yes, the more that we can do in terms of all of those things, the better. A slightly longer answer, however, requires careful thought about the necessary tradeoffs.

First, it is notable that we are having this discussion in a world in which people (such as the editors of the Times) suggest that law schools abandon three-year curricula in favor of "legal degrees based on two years of classes, followed by third-year apprenticeship programs." If the idea is to prepare the students for their apprenticeships by having them continue to study the substantive law through the case method, and also to have them do all of those "practical" things that they (supposedly) are not currently doing, before they begin their apprenticeships, then we are talking about a serious time crunch. Maybe we can do much more than we currently do, and do it in 2/3 of the time, but color me skeptical. To the extent that we can do more, however, then we should do more. (That is hardly a radical idea.)

Second, we should be very clear that many upper-level courses already provide what the critics suggest. The country's law schools, including the most elite among them, have poured resources into creating clinics, externships, and all manner of practical, hands-on courses. Certainly, for example, advanced tax classes and commercial law classes will have students looking at real tax returns, real "deals," real full-length contracts, etc. If a student knows that she wants to practice in the area of commercial transactions, she will certainly be well-served by taking the courses that will prepare her in the specifics of that area of law. She would probably not, however, spend her time taking a criminal procedure course or clinic that emphasizes plea-bargaining, nor a Trial Advocacy class that would prepare her for litigation -- unless she wants to cover more bases by preparing herself in as many of those areas as possible. That is what electives are for -- limited only by the student's interest and available credit hours.

Third, and finally, there is a very good argument that we as legal educators should err against offering too many of these supposedly hands-on courses. My objection is not just to the silly notion (suggested in Segal's article) that law schools fail their students by not teaching them which form to fill out -- surely one of the truest examples available of black-letter law that students can learn efficiently, on their own or in the first few weeks of practice, without paying tuition to read a manual on where to find the right form -- but also to the idea that students are inadequately trained if they have not "seen a whole contract," etc.

Consider a useful analogy. One of my friends growing up was a very good musician, at least by local standards, given his age. He loved jazz, and he wanted to become a jazz musician. He went to college, and signed up for courses in the Music Department. He quit after one semester, frustrated that they were making him study music theory, to study other styles of music before getting to jazz, and so on. He was not, in short, willing to learn the fundamentals, and he thought that his professors were wasting his time by forcing him to do anything other than play jazz and improvise.

My friend's professors, of course, understood the importance of learning fundamentals. One has to practice scales and arpeggios (and their analogues) a shockingly large number of times to become proficient in any musical style or instrument. There are building blocks that must first be mastered. Of course, one hopes that the training of people who will perform entire songs for a living will involve practice with entire songs. But what if it did not? Or what if the songs that one performs or writes while in school are far simpler than the jazz masterpieces (or, for another student, the high operas) that the student hopes to perform one day? Has the school failed, or cheated its enrollees, because its students are not graduating with the experience of having jammed with professional jazz musicians, or conducted a full symphony orchestra?

As I noted above, I generally think that students who have interests in any particular area of the law should be given opportunities to practice (through clinics) or to simulate (through "skills courses") the full, real thing. It is quite possible that law schools are -- despite the strong trends in this direction over the past twenty years or so -- still not doing enough, or that the weakened economy has increased the amount of such courses and opportunities that we should be offering. If so, then the right response is to see how to change our offerings in a way that does not make law school even harder to afford. (Despite the generally lower salaries of clinical professors, and the even lower pay for adjuncts, these types of courses and experiential learning offerings are quite labor-intensive, and thus quite expensive.)

What we do not need is to take seriously people who insist that we must simply allow students who want to play jazz to sit down and start trying to play jazz. That is not how learning works, and no well-run profession would ever allow itself to become "practical" in a way that leaves its practitioners without the substantive knowledge and abilities to adapt, to learn new material, and to serve the broad needs of their clients.


Michael C. Dorf said...

Well put. Every now and then one reads in the lay press an account of a subject about which one is truly knowledgeable and is shocked at how ill-informed the typical journalist is. The experience ought to lead us to wonder whether everything we read in the news is badly garbled. We also might wonder whether the training of journalists ought to be totally revamped, and if we were truly arrogant, to express a confident opinion about exactly how journalists should be trained.

Note: Historically, the law coverage in the NY Times was a pleasant exception. Tony Lewis, Stuart Taylor, Linda Greenhouse, David Margolick, and now Adam Liptak, actually knew/know a lot about what they were/are covering. But they seem to have been marginalized for this latest crusade.

Paul Scott said...

"Every now and then one reads in the lay press an account of a subject about which one is truly knowledgeable and is shocked at how ill-informed the typical journalist is."

Almost universally my experience. There are a handful of good journalists out there covering my field that seem to get things, generally, right. But my experience of working in a field that is actually covered by the press has had the effect of making me not trust anything I read learn from journalists.

From dealing with them, I am not even sure it is really their fault. The press life of most stories is less than 1 day. These journalists are generally gathering facts and publishing within hours of the "story" breaking. I don't know why anyone would expect accuracy under those conditions.

Sam Rickless said...

"Maybe other professors are simply better at coming up with hypothetical facts than I am, but I cannot imagine discussing any legal concept relying only on made-up facts."

Surely you are being too modest, Neil, and also perhaps not as accurate here as in the rest of your excellent post. In order to provide good advice to a future client about gifts under the tax code, I need to know not only how SCOTUS has defined "gift" in the past, but I also need to think about the nature of gifts (at least for tax purposes). Duberstein is a good start, because it is a kind of hypothetical that tests our "gift" intuitions, and also one that happens to be a real case. But surely I will understand the nature of gifts better by considering my and others' intuitions about a variety of other hypotheticals. This will then put me in a much better position to represent/advise a future client in a case that no-one has yet thought of. Someone who has not been trained to think through these hypotheticals will be poorly prepared to take on the task of representing/advising a future client in a case that doesn't fit squarely in already existing legal boxes. As far as I'm concerned, the more (and the kookier) hypotheticals, the better.

CJColucci said...

I've been practising law almost 30 years now. And after all that time, the largest single component of my practice is reading cases -- some of them old -- teasing out their meaning, and explaining it to others orally or in writing.
The so-called "practical" or "real" stuff that takes up much of my remaining time can be complicated, but it has almost no intellectual content. One could learn it in a day or two of lunches with court clerks. My excellent paralegals know much of it better than I do, and probably better than most law professors, even proceduralists, who would be ill-suited to teach it.

Howard Wasserman said...

The problem with your emailer's interpretation is that no one in this discussion seriously thinks law schools shouldn't be doing some skills/practical stuff. So much so, that it isn't "news" worthy of The Times. They had to have been talking about something more.

Elon said...

It’s a commonplace among thinking educators that one of the best ways to evaluate teacher quality is by looking at the level of student engagement in a teacher’s classroom.* When I was a teacher, before I became a lawyer, I always thought it was remarkable how quickly and accurately you could judge the quality of instruction in a classroom by standing in the door of a classroom for a few minutes and watching the kids in it.

As a law student, I was similarly struck by how universal and omnipresent the signs of failed instruction were in law classrooms. More students were playing minesweeper, solitaire or free cell, instant messaging, or otherwise zoned out than were even passively engaged with the instruction in the classroom (and this at a certain be-ivied law school with no internet in its classrooms). Thus, it’s hard for me to reconcile smarter-than-I law professors’ (whose good intentions have never seemed anything but clear to me) theoretical exonerations of law school pedagogy with what in my observation is that pedagogy’s unequivocal and near-universal failure in practice.
I do have my theories. The unoriginal one is that law schools, and by extension law professors, have no incentive to teach well and that good teaching isn’t valued as a result. The second, is that law professors have little experience and next to no training as teachers.** In four years as full time teacher, I spent more hours in front of a classroom than a law professor does in an entire career: this was enough to stop being a bad teacher, if not actually get good . The notion that becoming a good teacher takes years and thousands of classroom hours is uncontroversial as applied to K-12 teachers, but becomes unthinkable in law school (and the academy generally), and this dissonance seems wrongheaded to me. As Professor Dorf points out in his November 21 posting, you guys DO spend thousands of hours mastering a valuable discipline: writing and thinking as legal scholars. This, however, isn’t the same thing as excelling in legal education. Thus, while like you I would quarrel with some of the specifics of the article in the Times, its conclusion seems to me a valid one: quality of instruction at law schools suffers due to the focus on legal scholarship.

* For a digestible, if slightly fatuous, recitation of this point, see this Malcom Gladwell article in the New Yorker about football players and classroom teachers.
**Isn’t sending professors who want to teach into a classroom with minimal instruction on how to teach not unlike telling “students who want to play jazz to sit down and start trying to play jazz?”

Neil H. Buchanan said...

Many good comments here. I'm with Sam Rickless re "the more hypos, the better." Elon is right that much law teaching is quite bad, and most university-level teaching is done by people who are neither trained nor rewarded for good teaching. (I was one of the lucky few Ph.D. students, because Harvard actually had a 2-day seminar each year for new teachers. The very idea that two days is enough to teach us to be teachers is comical, but even that was actually an outlier. Most Teaching Assistants at American universities are just thrown into the classroom.)

If the argument is that "law teachers are often (or even usually) quite bad at teaching," then I'm with you. But that is not in any way tied to the case method, or the other points made in Segal's piece (or the NYT editorial). Bad teachers can mess up "skills training" and "practical" stuff as much as they mess up quasi-Socratic case method teaching.

Elon said...

I agree with you that bad teaching is bad teaching, socratic or otherwise. The more interesting question, I think, is whether good teaching matters more than a good modality of instruction. In other words, to get improved results for law students, is the right lever to be pulling "socratic versus applied" rather than "good teaching versus bad teaching?" I think it's the second, which leads me to the conclusion that Segal's attack on the case method is beside the point, but that so is any defense thereof.

But if you take seriously the proposition that a substantial portion of instruction in law schools is bad, doesn't that inexorably lead to the conclusion that something should change, and probably in a big way? Law students aren't just a law school's customers, they're its students, which seems to me to be a bigger and more morally charged relationship. I don't see much of evidence of law schools engaging in meaningful and urgent reflection about what their instruction should look like (socratic or otherwise), and "let's add a few more clinics," doesn't cut it at this point. Thus, I can't help but view the recent series of Times articles as anything other than a positive development overall. At least cages are getting rattled.

Neil H. Buchanan said...

In response to Elon's most recent comment, I do agree that the proper subject of debate is good vs. bad teaching. It does not, however, follow that a defense of the case method is irrelevant. If Segal and the Times's editors are taken seriously, a lot of effort will go into changing law school instruction in a way that will, at best, achieve nothing positive. As I've argued, getting rid of the case method would actually do harm. So, if we're going to improve matters, we have to know what NOT to do, as well as what to do.

As to the bigger question of whether "rattling the cages" is in itself a positive, I can only say that I think the cages have been rattling for the last few years. Maybe the high-profile stuff in the Times adds something, but whatever that extra something is must overcome the damage that the content of the Times's coverage has done.

I agree that law schools should always (and especially now) be thinking and acting to improve the education that we provide, but I don't think it's accurate to say that we've merely added a few clinics. We could and should do more, but let's not lose sight of how much things have changed (especially in terms of "practical" offerings) in the last few decades.

The challenge is to find what will really help. Deriding the teaching of old cases, and denigrating legal scholarship, takes us in the wrong direction and wastes time and energy.