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Law Student Perspectives: The Elective Imbroglio of Law School Students

By Paris Gyparakis, City Bar Student Ambassador and Third Year Law School Student, Hofstra University

In what is now known as a highly competitive, hotbed of a legal market, law school students are faced with the daunting task of trying to structure their law school schedule in the most strategic way. Generally, once the student takes the “core courses,” most of which are required during the first-year, he or she is free to choose among a plethora of electives, from poverty law to private equity. The attractiveness of skills courses, marketed by the law schools as crucial to the “practice-ready” demands of law firms, clash with the lure of other upper-level theory courses, creating an apparent elective imbroglio. The question rings out incessantly: “theory or practice?”

This question, however, relates to a historical dichotomy of opinions on the educational philosophy of law schools, which has persisted since their inception.[1] Do law schools exist to prepare students for the practice of law, or within the larger missions of the academy in pursuit of knowledge?

In their study of American legal education, professors Gordon Gee and Donald Jackson articulated the repeated emergence of this exact issue: “the tension between ‘practical’ and ‘theoretical’ orientations in professional training.”[2] Critics of the current educational state, claim that the growing disjunction between legal education and the legal profession can be ascribed to tenured professors, so-called “ivory-tower dilettantes,” generally disdainful of the practice of law who produce abstract theoretical scholarship.[3] For Judge Edwards, these “impractical scholars,” emphasize abstract theory at the expense of practical scholarship and pedagogy.[4] However, as law schools face increased pressure from the bar and bench, they have tried to expand legal education by increasing the amount of skills class offered, as well as incorporating adjunct faculty to teach more specialty areas of law.[5] This, I argue, has resulted in the elective imbroglio, where a competitive job market, advice from practitioners, or wise practicality, attracts some students to skills electives and externships; while intellectual curiosity, or the desire to revel in liberal education one last time, attracts other students towards classes in Corporate Finance or Law and Economics.

I also argue that this difficulty is perpetrated, albeit unintentionally, by the law schools themselves, as their inconsistent positions about the role of legal education has mystified law students for decades. Some educators reject the idea that a law school education should include broad-based skills instruction on lawyering, postulating that a law school, under the auspices of the university, is not a trade school and should teach research-based theory and the policy underpinnings of legal doctrines.[6] According to Professor George L. Priest, professor of Law and Economics at Yale Law School, legal education should focus on “the application of the social sciences and social theory to criticize legal analysis and the legal system.” [7] Legal scholars, he claims, should not be “burdened by the mastery of the legal system’s details,” but, rather, should ponder “ideas relevant to the law.”[8]

Other educators, like Judge Edwards, believe that academicians contribute to their obligation to serve the system of justice by training their students to practice law in a competent and ethical manner.[9] As such, they are more likely to structure their course on the “doctrinal curriculum,” emphasizing case law and statute interpretation, as the means to deepen understanding of authoritative texts.[10] According to Judge Edwards, the “law-and-economics scholar,” being preoccupied with theory, will not give the necessary attention to cases and statutes needed to foster a true understanding of the legal regime.[11]

Consequently, if we accept Justice Frankfurter’s apothegm that “the law and the lawyers are what the law schools make them,” who else can law students blame for this state of confusion? Logically, we should espouse the more optimistic belief that educators will be able to perceive that theory and practice shall complement one another. However, considering that the educational orientation issue at the university level is nothing less than a gordian knot, it is incumbent upon us to strike our own balance between doctrine, theory, and practical skills, and take an inventory of our strengths and weaknesses to choose our electives wisely; never forgetting the treasured Latin adage of first-year contracts, caveat emptor, which is after all, the real reason we went to law school.

 

Footnotes

 

[1] See John O. Mudd, Beyond Rationalism: Performance-Referenced Legal Education, 36 J. Legal Educ. 189 (1986) (citing Frank I. Michelman, The Parts and the Whole: Non-Euclidean Curricular Geometry, 32 J. Legal Educ. 352; Robert Keeton, Teaching and Testing for Competence in Law Schools, 40 Md. L. Rev. 203, 210 (1981)).

[2] Gordon E. Gee & Donald W. Jackson, Bridging the Gap: Legal Education and Lawyer

Competency, 1977 B.Y.U. L. Rev. 695, 927.

[3] See e.g., Harry T. Edwards, The Growing Disjunction between Legal Education and the Legal Profession, 91 Mich. L. Rev. 34 (1992), Jerome Frank, A Plea for Lawyer-Schools, 56 Yale L.J. 1303 (1949).

[4] See Harry T. Edwards, The Growing Disjunction between Legal Education and the Legal Profession, 91 Mich. L. Rev. 34. (1992).

[5] See generally David A. Lander, Are Adjuncts a Benefit or a Detriment?, 33 U. Dayton L. Rev. 285 (2008).

[6] See Gary S. Laser, Educating for Professional Competence in the Twenty-First Century: Educational Reform at Chicago-Kent College of Law, 68 Chi.-Kent L. Rev. 243, 268 (1992).

[7] George L. Priest, The Increasing Division Between Legal Practice and Legal Education, 37 Buff. L. Rev. 681, 683 (1989).

[8] Id

[9] See supra, note 4.

[10] Id.

[11] Id. at 59, n.70 (“An ‘impractical’ scholar may use a contracts casebook, in a course entitled ‘Contracts,’ to teach law students about economic theory or literary theory instead of contract law.”)