Law in Contemporary Society

Teaching America's Leaders

-- By SamanthaWishman - 16 Feb 2012

As Justice O’Connor wrote in Grutter v. Bollinger when the Supreme Court upheld an affirmative action plan at Michigan Law School: "law schools represent the training ground for a large number of our Nation's leaders... Individuals with law degrees occupy roughly half the state governorships, more than half the seats in the United States Senate, and more than a third of the seats in the United States House of Representatives."

No doubt many of my classmates at Columbia will be successful. Collectively, they may very well influence the direction of the politics and the economy of our country. Since legal education must be more than the transfer of information-- it shapes attitudes and values and teaches methods of approaching and solving problems-- we have a profound national interest in what law schools teach our future leaders.

Law school is being attacked as too theoretical, not too practical, and basically un-altered since Langdell introduced the case method almost 140 years ago. David Segal’s November New York Times article, “After Law School, Associates Learn to Be Lawyers,” begins with a group of law school graduates unable to answer the question of how to execute a merger. Since law school doesn’t equip graduates to practice law, they must rely on employers to train them.

The Times followed up later that month with an editorial, “Legal Education Reform,” suggesting that classes focused on analyzing appellate decisions may not be an effective way to train lawyers. They call for law schools to add more clinics and courses that better prepare graduates to practice as: “advocates and counselors, negotiators and deal-shapers, and problem-solvers.”

Fifteen years ago, Lani Guinier also called for a re-evaluation of how we teach and how we evaluate law students in the 1997 book, Becoming Gentlemen. She was provoked not by a legal hiring crisis, but by a study conducted at the University of Pennsylvania Law School that found gender and race predict law school class ranking-- better than LSAT and GPA-- to such an extent that “by the end of the first year men are three times more likely than women to be in the top 10% of their law school class” (28). While the men and women entered the 1L class with equivalent credentials, women consistently spoke less in class and performed worse over the three years.

Dismissing the proposition that women are less capable of becoming great lawyers, Guinier looks to institutional failure. She argues that the case method, the Socratic method, the large lecture, the single exam, and the grading system do not “create a learning space for those students--many of them women-- who learn better through collaborative and non-adversarial methods” (13). Women interviewed for the study reported feeling alienated by an institution that has not fundamentally changed since becoming co-ed.

This year we read about another adversarial, all-male school that was loath to corrupt its teaching methods in the face of women. In U.S. v. Virginia (VMI), the U.S. brought suit to have women admitted to the most prestigious military academy in the country that fought tooth and nail to keep women out. Virginia argued that the “admission of women would downgrade VMI's stature, destroy the adversative system and, with it, even the school.” In contrast to the methods used at VMI, the school’s all-female counterpart, VWIL, “favored ‘a cooperative method which reinforces self-esteem.’” In what sound like tasks for a Girl Scout or DAR chapter, VWIL students would “take courses in leadership, complete an off-campus leadership externship, participate in community service projects, and assist in arranging a speaker series.”

The cooperative, hand-holding, female education described in VMI pales next to the tough, worth-bragging-about schooling the men receive. Even as Justice Ginsburg judges women admitted to VMI, it is with great reverence for the “pressures, hazards, and psychological bonding characteristic of VMI's adversative training.” Hazing has been thought to create stalwart pledges, but who is to say what value that may have and how it compares to the value of collaborative learning experiences?

In Becoming Gentleman, Guinier adeptly moves the conversation away from why women don’t thrive in competitive, adversarial law school classrooms, and asks what behavior does the current education reward? What skills are most needed by 21st century lawyers and how does the current education develop and evaluate those skills?

The types of lawyering necessary to succeed in the 21st century are not just the adversarial, quick-response thinking that the Socratic method hones. In this brave new world, the “female” weaknesses Guinier identifies that keep women from optimal performance in law school -- listening, collaboration, and consensus-building -- will be strengths.

As Justice O’Connor told us, the dominance of lawyers running the country is even more striking when measuring the influence of highly selective schools. Graduates from law schools like Columbia account “for 25 of the 100 United States Senators, 74 United States Courts of Appeals judges, and nearly 200 of the more than 600 United States District Court judges.”

We live in a country where the total assets of the top 400 people equal the assets of the bottom 140 million people, where 46.2 million people live in poverty, and where the imbalance between college completion by rich and poor students has grown over 50% since the 1980s. With a government deeply divided, with a population deeply divided, and a nation at war, a cooperative, compassionate, legal education should be imperative.

The New York Times published an article, “A Regime’s Tight Grip on AIDS,” asking why HIV has been so well contained in Cuba. One reason: “Socialist education teaches Cubans to feel responsible for one another.” What does law school teach us?

This wasn't exactly the next draft I thought you might write, but it's a thoughtful effort in a different direction. Much as I like Lani's ideas, right now I'm much more interested in yours, and I'm therefore a little disappointed to find so much of her and so little of you here.

Let's stipulate that the question, how we should educate America's most privileged and possibly most gifted law students, is at the center of this inquiry. The references to Grutter and to Lani's book suggest that a secondary focus on matters of bias and diversity may also be present, but—as I've mentioned before—it's hard to manage two ideas in this space, so let's stick to the primary issue.

If I understand you correctly, your point is that these future leaders of the society should be taught to collaborate, should be skilled active listeners, and should know how to seek and advance consensus. Because that's what society in the 21st century is going to need. I'm not sure why the 20th century didn't need those skills in its leaders, or whether we really don't also need people who are quick on their feet, strong in argument, eloquent, etc. Rather than trying to explain why any of these virtues isn't needed, or why the required virtues for leaders have somehow changed, let's stick to your positive case that these are important virtues for leaders. They are also particularly useful skills for negotiators, including the sorts of deal-makers who are found in large law firms serving the interests of the financial services industries. This institution is sharply specialized in providing units of personnel to such law firms. Why doesn't that result in an instructional system tailored in such a useful direction? If you ruminate on that for a bit, I think you'll find yourself impelled productively.

I also think, however, that the actual virtues required of leaders might go beyond the set identified. Courage, for example, I think is important, as you know. How does one teach that? Resourcefulness, self-direction, good judgment, capacity for self-criticism, tension-reducing humane humor, eloquence to move people in numbers, and both magnetism and tactfulness to move individuals in face-to-face settings—how are these to be taught in law school, where future leaders are being bred who would be so much more valuable to society with these virtues aboard.

Another question you might ponder: to what extent do you want to teach "leaders," who will wind up using their efforts in existing institutions, and how much do you want to invest in training iconoclasts, who will prune institutions, or visionaries, who will invent modalities of social change and adaptation that don't exist in present institutional form?

Really, after all, it's about people, as every social process and institution is. If one took teaching seriously, one would choose students carefully, train them individually, with attention to their learning styles, powers, goals, and weaknesses. One would take "advising" and "teaching" as inextricably interrelated activities, associated in a process we now tend to call "mentoring."

But we can't do that and train so many "leaders" who never actually lead anything, but do give the grindings of the faces of the poor in contribution to the law school.



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r10 - 22 Jan 2013 - 20:10:50 - IanSullivan
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