Mentoring law students and advising people considering law school about the pros and cons of attending are responsibilities most lawyers embrace willingly. We lawyers know it comes with the territory, along with providing friends and relatives basic legal information to help them begin to navigate a problem.
Some law schools go a step further and match practitioners to students. These practitioners become mentors who help students see inside certain practice areas, focus their career goals, understand the importance of legal ethics, and develop a more professional acumen before they graduate.
I have served as a mentor in one such law school program for twelve years. I meet informally for coffees or lunches with quite a few prospective and current law students each year, and I periodically serve as an adjunct professor of law. I genuinely enjoy the conversations and am interested in how my counsel about law school and practice compares to that of other lawyers.
Naturally, my interest was piqued when I saw The Law of Law School, co-written by American University law professor Andrew Guthrie Ferguson and public interest lawyer Jonathan Yusef Newton. Artfully packaged as a dusty hornbook, I was hoping to find something unique in the plentiful world of books, guides, and resources that describe the law school experience and offer advice on how to prepare for practice.
The book is a helpful resource for understanding the first-semester experience and how a student can put in place good habits early in law school. It provides a good set of tools for successfully navigating the process of study, outlining, and exams, and it gives a brief nod toward using that experience to rightfully focus one’s time in law school.
But the book is ultimately a disappointment. The helpful overview of successful techniques and strategies lacks a coherent explanation as to why they are the foundation of a successful legal practice. And the helpful advice is shrouded in a general cynicism about the substance and enterprise of the law.
Start with “Why?”
Assisting law students in road-mapping their way toward their goals is especially important because many law schools do not work hard to help students understand why they are there and how to make the most out of the experience. The economic downturn of 2008 and subsequent decline in law school enrollment forced many schools to make positive changes and not take students for granted, but the product remains largely the same. A certain mystique remains in hiding the ball, and, as the authors note, the law sometimes has a vocabulary all its own.
In many law schools, one is supposed to learn the process of exam preparation and the full school experience by osmosis. There is a bit of a herd mentality about 1L success, career planning and expectations, clerkships, interviews, and so on.
Because of those challenges, it is important that students remember why they went to law school, what their concrete professional aspirations are, and how law school will help get them there—and succeed. The latter means knowing what law school is and is not.
The Law of Law School succeeds at least in demystifying the overwhelming quality of the first-year experience—in which one is given an enormous amount of information to digest in the casebooks—and highlighting where there is a need to develop practices and habits to make the best use of the material to perform well on exams.
Packaged as a collection of 100 concise rules with pithy commentary, the book makes good suggestions such as “prepare for class like an appellate argument” (and defines that term); read hornbooks, study aids, and supplements for context; ask “why?” for each case to understand the rationale; use IRAC; make a checklist for each day; start outlining immediately; and so on. This is standard but solid advice upon entering law school.
And indeed, strong exam performance opens more doors when one enters practice. It matters enormously and is the cornerstone of law school success.
But students also need to consider why the traditional curriculum is structured the way it is and how it is meant to help them become successful practitioners. Successful exam preparation is the foundation for “thinking like a lawyer,” which is a common phrase people hear during 1L year. But it is not clear how often the concept is taken to heart.
Thinking like a lawyer means growing in one’s ability to acquire legal tools and to put them in your toolbox, and then to apply them when needed. Thinking like a lawyer makes one into a problem solver who creates beneficial outcomes for the client.
Therefore, when thinking about the “law of law school,” how we frame the issue matters. A person must ask: am I attending law school simply to receive information needed to pass the bar exam and to be admitted to practice law? Or am I preparing to be a successful attorney—a person trained to use legal materials to solve problems for clients?
Why am I here? Am I laying bricks, or am I building the cathedral?
If a person frames the task of obtaining a legal education through the lens of becoming a successful problem solver, then he or she understands the objective of law school.
Why 1L Matters
Any insider’s take on the law school experience should lead with the reality that successful attorneys are problem solvers. The “law” can always be found and regurgitated in a memo or a brief. And there are plenty of lawyers who can tell you what you CANNOT do based on the law.
But the successful lawyer helps clients get out of legal conflicts or enables clients to accomplish their objectives while keeping them out of trouble. They identify what the clients CAN do.
Again, The Law of Law School offers a helpful collection of tips for exam success during the 1L year. It does not, however, sufficiently explain why these principles and practices are the pathway to success in the law, and thus does not live up to its title. (By the way, a better, more comprehensive text for incoming law students is Robert H. Miller’s Law School Confidential, which covers everything from exams to recruiting season, law review competitions to obtaining judicial clerkships, and preparing to graduate and take the bar exam—along with helpful overviews of key themes of the major substantive areas of law).
Substantive courses are about learning to think like a lawyer. Few can memorize the particulars of every case beyond just the basics. Where one succeeds is in learning the ability to construct a mental framework or map of any substantive area of law and then to apply it to actual legal problems. It is in that process that the substantive courses in the 1L year are most helpful.
The Law of Law School could have done a better job of drawing out why the journey through the 1L curriculum matters. But that is not its most glaring flaw.
Cynicism is a Dead End
Multiple times throughout this guide, the authors remind readers that “[t]hroughout history, the law articulated in legal opinions has served the interests of a select few at the expense of the disempowered majority.” What is considered “reasonable” and “objective” in the casebooks is often from the vantage point of “white men with significant socioeconomic power.”
Further, “[a]ny student honestly reflecting on the evolution of U.S. law will see it as embedded with structural inequality; ignorant of racial, gender, and other societal experiences; and silent about the experiences of the vast majority of the population.” Students are advised to do outside reading on “structural inequity.” Finally, “students might feel erased—that their existence is not completely represented in the assumptions underlying the decisions that constitute ‘the law’—and they would be right.”
That injustice is present in American life and legal history is plainly true. In cases such as Dred Scott, Korematsu, Buck v. Bell, and Roe v. Wade, we clearly see reflected the narrow, patrician views of generations of a certain class of white men who allowed their discrimination, greed, and lust for power and profit to be reflected in their judicial opinions. What is humbling is that, in some of those cases, the Justices believed they were doing good.
But is that the full story of the Anglo-American common-law tradition? Is that what most opinions in the casebooks really reflect? Were the “white men” who wrote them incapable of producing just results? How relevant is the judge’s identity to determining whether a porter owed a duty to Ms. Palsgraf; to determining the difference in value of the working hand and a hairy hand; or to determining whether Captain Stephens could claim a defense of necessity when he killed a cabin boy in his lifeboat? It’s not totally irrelevant, but many historic opinions in the casebooks are there precisely because they reflect thoughtful reasoning and enlightened judgment.
Such statements by the authors have the cumulative effect of further conditioning the incoming student to embrace a hermeneutics of suspicion: an interpretive lens that assumes legal rules and the cases from which they come are the story of injustice. But not every case is Dred Scott. And Dred Scott is in the casebook precisely because it reflects both a failure of legal reasoning and a moral failing from which we can learn.
Rather than acclimating themselves to the process of common-law reasoning—and how the judges in the casebooks sought to reason by analogy in a way that nurtured justice, equity, and socially beneficial outcomes—students continue to be politicized and to look for power dynamics. They learn to suspect that the legal decision-making process is an imposition of the will rather than the pursuit of an ordinance of reason.
But students are then robbed in some way of the opportunity to come to appreciate the incremental way in which the path of the law is forged through reasoned deliberation by imperfect men and women.
Employing that reasoning process (“thinking like a lawyer”) is how future lawyers will succeed, especially in litigation, but it is also how law develops in cases and controversies outside the legislative process. That heritage is decidedly not the sole possession of white men but belongs to our common tradition.
Is America more diverse than in the past? Yes. Should that be considered in the law school curriculum and the casebooks? Yes. But the canon of classic cases, both the triumphs and the mistakes, is a heritage from which all students can learn, irrespective of the sex or racial identity of the judges who wrote the opinions.
Whatever one’s viewpoint, winning in court requires creative thinking and problem solving that respects the complexity of issues, is conducted with a dose of humility, and understands the possibilities and limitations of the legal process. The hope is that the 1L year teaches students to think through all sides of an issue and prevents future lawyers from indulging in simplistic constructions of reality. Wrestling with the cases and the arguments of the parties underscores the complexity of life and that there is usually more to the story and better arguments for a position than appear at first. The reality that moral reasoning is sometimes a complex process is an important rule to internalize for law, politics, and life more generally.
In other words, far from being “theoretical,” the substantive courses of 1L year are eminently practical and provide the foundation for a successful practice as a legal problem solver. Unfortunately, The Law of Law School, with all its helpful rules for exam preparation, focuses too little on the ultimate “why” behind the purpose of the 1L year and its connection to practice. It breeds cynicism about the case materials that are the foundation of thinking like a lawyer, rather than helping students understand how those cases can help them succeed as problem-solving practitioners in the future.