Preliminary Note: Each semester, at the end of my Constitutional Law class, a two-semester sequence, with Constitutional Law I: Structure and Governance in the spring of the first year, and Constitutional Law II: Individual Rights in the fall of the second year, I reserve about 10 to 15 minutes to give a brief lecture. The content, which varies, is designed to encourage my students to think deeply about the choices they are making and their future careers. What follows is the lecture I gave yesterday to my first-year law students at the end of Constitutional Law I.
Constitutional Law I Final Lecture
Delivered on April 22, 2019
In the time that remains, I want to encourage you to demand more from your legal education. What does it mean to do that? This year, I requested to be on the law school’s curriculum committee. Along with many law schools in recent years, we are reevaluating what matters most in a law school education, and in doing so, we are also being introspective about our capacity, and limitations, in delivering on the commitments we make.
What I’m about to say is a bit oversimplified; my objective is to set up opposing positions. There are obviously gradations, with many faculty occupying positions in between. Even so, within the legal education literature, there is a general division across two camps:
(1) One group views law school as a venue for practical skills, or practice-ready, training. Those in this camp believe that the most important legal training involves teaching clearly identified lawyering skills. These include how to draft specific types of documents, such as memoranda to senior lawyers, correspondence with opposing counsel, and myriad pleadings, e.g., complaints, answers, motions, briefs, and interrogatories. Adherents to skills-based lawyer training do not oppose teaching theory, but they tend to maintain that theory must be justified on instrumental grounds, meaning that it should be closely connected to some practice-driven payoff. For those in this camp, graded exercises—papers and exams—although necessary sorting devices, are pedagogically beneficial only when related, in predictable ways, to what lawyers are apt to encounter in practice.
(2) A second group is firmly committed to higher level abstraction and to more rigorous theoretical training. In reciprocal fashion, this group is not opposed to skills training. Those committed to theory understand that it is impossible to provide robust analytical frameworks without a meaningful context. This necessarily relates to law as it is practiced, and as legal rules affect the world around us. Instead, this group embraces analytical rigor and theoretical ambition as their own vital lawyering skills. According to those broadly embracing this perspective, lawyers need these skills alternatively to lazar-in or pan-out as appropriate and to engage in essential higher reasoning, to synthesize complex materials, and to encapsulate those materials in comprehensive, yet comprehensible, theoretical accounts that are persuasive to a partner, client, judge, agency, and even members of the scholarly community or public. For adherents to this view, the emphasis of legal education should be less about teaching how to practice law, and more on teaching how to think as excellent lawyers.
You have all sat through an entire course with me now, and so you certainly have a sense of where, over this admittedly oversimplified division, I generally come down. Historically, Maryland Carey Law has embraced a strong commitment to bridging, perhaps eschewing, this very divide. And yet, even a theory-to-practice framing risks miscomprehending the vital importance of theory for its own sake, simply to gain deeper understandings and not for an immediate practical application.
Despite my having a specific view, I think it is important to spend these final class moments discussing this with you. At the end of the day, it is you, not I, nor my colleagues, who are the ultimate architects of your legal education. You will each decide which set of goals you most highly value, and which steps you must take to accomplish them. That’s part of being a professional student. Ending your 1L year is a big deal. Until now, for the most part, we chose your curriculum. And now, you will. You will select most of your classes, your clinic, your paper topics, your co-curricular activities, your internships, your summer positions, and the list goes on and on.
Two personal anecdotes:
The year before I entered law school, I was a legal assistant at a well-known firm. The legal assistant I was replacing and I had each deferred our law school admissions, and my counterpart was considering whether to forego attending Harvard Law School. At his final lunch with the partner in charge of the legal assistant program and me, he asked if it bothered the partner that lawyers tended to divide up the pie after various relationships soured or a tragedy occurred, all without benefitting society as a whole by instead growing the pie. The partner responded that, at a certain point in one’s career, one stops asking such philosophical questions and instead focuses on the work. I’m not great at this, but my best guess is that today I’m about ten to fifteen years older than that partner was at the time. I hope none of you find yourselves uninterested in thinking about the deeper questions concerning why you do what you do. I also hope that if, in several years, an aspiring lawyer asks you such a question, you will do better. As for me, I’d say the problem is a mistaken premise. Even litigators, known for fighting over the pie, contribute through a complex process that helps provide certainty respecting legal rules. In doing so, they lower the cost of our complex interactions, making it easier to avoid problematic litigation. Through this dynamic feedback loop, litigators, along with transaction lawyers, help grow the pie.
Four years before that lunch, I was a college sophomore, and frustrated political science major, planning to apply to law school. I perceived no core methodology, just a lot of reading on disparate topics. I also hadn’t enjoyed the introductory micro-/macro-economics sequence. On the advice of a freshman who I was supposed to be advising—not the other way around—I enrolled in intermediate micro-economics. Suddenly it clicked. This was a methodology that I could appreciate and build on, that would allow me to gain a deeper understanding of the world, and that would provide a basis for interesting and challenging questions.
I’m certainly not suggesting any of you shift your focus to economics, not that that’s a bad thing! I am suggesting the importance of having a focus. Focus requires ambition coupled with discipline. First ask yourself: What do I love about the law? And then identify what you want, or more to the point, what you demand from your law school education. Then commit yourselves to obtaining it. Bind yourselves to the proverbial mast, even if, or perhaps especially if, this requires harder courses, a more intense focus on writing or public speaking, or greater attention to anything that might not come naturally to you. Figure that out as early as possible, and then work through it. Each of you has the capacity to do so. And if you cannot come up with an answer to the initial question—what do I love about the law?—that’s okay. But seriously consider whether this path is the right one for you, and, if not, perhaps, it’s time to find your passion elsewhere.
Even beyond legal education, law professors tend to subdivide into two types: those who specialize based on subject matter, and those who specialize based on methodology. Although I have been teaching and writing in Constitutional Law for twenty-seven years, I classify myself as the latter. That’s largely because the former requires a mnemonic capacity well beyond mine. Theoretical framings help me to integrate, to pull together, and certainly most importantly, to teach. Out there in practice, lawyers likewise tend to subdivide into those specializing in substantive subject areas, for example, labor law, environmental law, tax law, trusts and estates; and those specializing in practice types, for example litigators, transactional lawyers, regulatory lawyers, with those in the latter grouping also transcending specific doctrinal boundaries.
The earlier you figure out what excites you, and the kind of lawyer you wish to be, the better suited you are to taking control of your legal education. Along the way, please do not make the mistake of thinking that detours—courses, writing projects, or other pursuits that lack an obvious practice-based payoff (or in my case, an early choice of undergraduate major)—were a waste of your time or energy. Think of this more like going to the gym; great lawyers need to work out all muscle groups, not merely the ones they will eventually use the most. Digging deeply into something for its own sake is always worthwhile, and almost always educational, even if the educational value is figuring out why it’s not for you.
Please also remember: there is a difference between legal education and lawyering. Medical students learn a lot before earning their MD, except how to practice medicine. For that they need an internship, residency, and, for many, a fellowship. Your early career will be your internship, residency, and fellowship. The best JD programs provide the tools needed to start that later legal education. And yes, the educational process, done right, is hard. It is also deeply rewarding.
Those who insist that their legal education precisely forecast their post JD education, or their practice more generally, aren’t asking enough of their law school training. Demand more than that. You are entitled to it. You are entitled, more than anything, to learn how to think like an excellent lawyer.
As always, I welcome your comments.
[Special thanks to my terrific colleagues, Richard Boldt, Bob Condlin, and Deb Eisenberg for their thoughtful comments on earlier drafts.]