I confess, the title of this post is not wholly mine. But the source is not Claire Danes; it’s adapted from an article and lecture given by legal realist Karl Llewellyn in 1935, “On What Is Wrong with So-Called Legal Education,” which was published in Columbia Law Review that year.

Everything Old Is New Again

Llewellyn’s dissatisfaction with legal education in 1935 is palpable in this talk. What strikes me is how many of his indictments of and challenges to legal education I still find valid today. Just a few of his insights that could be applied to today’s law school experience (overlooking, for the moment, his assumptions about gender):

“Not rules, but doing, is what we seek to train men for. Rules our men need. Rules do in part control or shape, do in still greater part set limits to, their doing. But the thing remains the doing.” Why does so much of what we call legal education still happen with heads buried in books? That’s not what most lawyers do. And it’s certainly not what they’re going to do once AI becomes a fact of everyday life.

Hiding in Plain Sight

And there’s another ready model, has been since at least 1935:

“A second line of semi-analogy lies in the care the medics exercise with regard to clinical service and to internship. They have a longer theoretical training than ours. But they insist on ordered practical experience, before their graduates are certified to the helpless layman. Is medicine then more complicated than law? I say no. It is only that the standards for the law are lower.”

Law schools could be structured this way: One year of theory, doctrine, research, and writing; one year of simulation and application, and one year of supervised experiential learning in a real-world setting. There’s room for variety and a few specialized electives along the way.

But most law schools don’t do this - why not? Llewellyn has an answer for that too: The legal academy’s “eyes and efforts have been fixed, and still are fixed, not on what can be done in a school in three years, but purblindly on what our predecessors, or ourselves, happen to have been doing.”

crisis = opportunity

I know it’s easy to take pot shots at legal education when you aren’t the one who has to make the wheels turn. There’ve been a lot of great improvements in legal education since Llewellyn’s day - legal realism, law clinics, and summer job placement programs among them. And then there’s the higher education budget crisis and ABA standards and COVID disruptions. I’ve lived through it, and I’m as guilty as any professor of doing things the same old way (and not even always the best of those same old ways).

But encountering Llewellyn’s 88-year-old rant today kind of stopped me in my tracks. We’re at another crossroads in legal education, and in higher education generally. Why not seize the crisis as an opportunity - to debate what can be done instead of just what we have been doing?

As Llewellyn said, “ground-clearing may require to be stump-pulling, if it is to give us an acre that yields more, and yet costs less to plough.”