Prospective lawyers need to learn three things: First, legal doctrine, or what the law says; second, legal analysis, or how to reason about a legal issue; and third, legal practice, or how to apply legal doctrine and legal reasoning to the lawyers\u27 tasks of advising clients, drafting legal documents, representing clients before tribunals and governmental agencies, negotiating for clients, and so on.
The following essay is based on talks delivered in Tokyo las February as part of the symposium  Inside the American Law School: Its Essence, Its Reality, and Its Potential in Japan. 
Organized by Assistant Professor Mark D. West, who directs the Law Schools Japanese Legal Studies Program, in Cooperation with Japanese alumni of the Law School and Japanese bar learders, the symposium was the first of its kind. It was occasioned by Japan\u27s regorganization of its legal education system to establish graduate law schools based on the United States model by April 2004.
As West explained for Law Quadrangle Notes(Spring 2002, page 4), the conference came at an important time for Japanese legal education:  The basic accreditation standards for law schools were announced at the end of 2001, and the details of the system - things like costs and funding, teaching methods, curriculum, the admissions process, and so on - will be filed in over the coming months. The conference is timed to give Japanese policymakers information about our system as they debate and draft these important rules

Schneider, Carl E.

English

University of Michigan School of Law

Law Quadrangle (formerly Law Quad Notes) Volume 45 Number 2 Article 11 Summer 2002 Teaching Lawyers: American practice and Japanese Possibilities Carl E. Schneider University of Michigan Law School Follow this and additional works at: https://repository.law.umich.edu/lqnotes Recommended Citation Carl E. Schneider, Teaching Lawyers: American practice and Japanese Possibilities, 45 Law Quadrangle (formerly Law Quad Notes) - (2002). Available at: https://repository.law.umich.edu/lqnotes/vol45/iss2/11 This Article is brought to you for free and open access by University of Michigan Law School Scholarship Repository. It has been accepted for inclusion in Law Quadrangle (formerly Law Quad Notes) by an authorized editor of University of Michigan Law School Scholarship Repository. For more information, please contact mlaw.repository@umich.edu. Amuican j CP ~d Japanese ~ o s s i b l ~  Bv CARL E. SGHNE~DER , law7 My Jr, which m y  surprise )POY L: up m a point. Of course there are kgd doctrines every lawyer should how,  me M & g  block of law of all kink. But certainly in America and, I would argue, even in a code country, it is both. (1) inc~&~gly impossible to leam 11 rhe law you will need and (2) masingly unnecessary to leam all the al law you am. In America, of course, we have so many jurisdictions that no human being could read, much less leam, all the law-that floods our country. But even in Japan, your Diet, your courts, and your very imposing bureaucracy chum out new law at accelerating rates. And the practice of law in Japan is ever more international, so that knowledge of foreign legal systems, whch is already impressive, ust become even mote thorough. * At the same time, as I just suggested, lawyers find themselves using an hcreasmgly narrow range of law as practice inexorably becomes more specialized. Specialization is already far advanced in the United States and is proceeding with laser-like speed in Europe. As Japan expands its bar, that process must seize Japan. Not only is law pecializing rapidly and relentlessly, it will @ k g e  in ways we cannot imagine during I f  e 40 years of a lawyer's professional life. But of course the fact that it is increasingly impossible and increasingly unnecessary to teach students every legal doctrine does not mean we should teach them no doctrine at all. The question is, how to teach doctrine effectively. Here I must be frank about two things. First, at base, professors don't teach law - students leam it. They leam it by sitting alone in a room struggling to make sense of involuted and exfoliating doctrines, by rereading primary materials, by scrutinizing secondary sources, by searching for explanatory principles, by outlining sprawling topics, by memorizing crucial ideas. No amount of-professorial explanation can make this labor r messary; no professorial instruction to b e h e  that students bftm understand more deeply md $ermanently law rhey have puzzled out than law profkswrs have lucidly explained. In sum, professors carm be helpful, but they cannot leam things for other people. Second, I mmt be hnk about lectures. Normally, they are useless. They are a poor way to help people leam doetrine. At least where a field is not changng rapidly, lect&es are open to one c m b g  question - if you have somethmg to tell us, why not write it down and let us study it efficiently, carefully, and conveniently? True, a brilliant lecture is a thing of beauty and a joy forever. But the brutal truth is that few people can write b n b n t  lectures even occasionally, much less three times a week for 15 weeks. I attended a dstinguished univesity where professors in large courses lectured. I remember clearly only two courses, and in most courses I discovered a dreadful truth we all know but are too polite to speak - lectures are often boring, and the student who listens is constantly tempted to slip into sleep. Worse, the professor who lectures is constantly tempted to slip into indolence. Once you write lecture notes, it's easy to re-use them eternally. Whatever m i r y  your lectures may have had, they lose, and whatever interest in teaching you may have had, you lose. Let me say a final frank word about teaching substance. If that's all you want to do, you don't need a law school. In every system I know well, a commercial enterprise has arisen for teadung students enough substance to allow them to pass a bar exam. American students grind through a few weeks after law school at a commercial school that crams enough information into them that they can pass their state's bar exam. German students skip professors' lectures and pay someone they literally call a "repeater" to stuff enough law into them to get them through the Staatsexmm. And as you know better than I, Japanese students also seek'commercial help in learning the law. Indeed, same of your bmgoshi never even studied law in the university. of the third thing students need they are to become lawyen - legal analysis, or how to read a legal d to reason about a leg1 issue, and to formulate a legal arpjummt. I substance of law cannot be mwght dficlently through lectuns. But these way one might eqect. Professiomls apply abstract leamirig to look at a novel p~oblem, and a - solution comes d o  their minds. It appears because professionals, having seen thousands of problem, have developed a file cabinet of typical patterns associated with typical solutiom. They scan these pattern so fast that they do nor ' k m  what they are doing. The best example comes from studies of chess mast&. ~ h e v  look at s board and a j I& plausible m&e presents itself in their minds. They rhen examine lo~cally what their file of pnaems suggests ire likely to be weak aspects of the move. But 85 - - I&. percent of the rime, the Eust mow that I&- occurs to the expert is the move rhe expert nlike!3. So our problem is to teach students how to reason in a way that relies crucially on a kind of intuition. Lectures ' I won't work. First, professionals do not h o w  how they reason, so they cannot , describe the process well enough to allow . the novice to learn it. Second, the only , 'I way to build up a file of patterns is experience your master would permit you. 'Ilus, however, is clumsy and expensive, and today American law give students practice in Eventually, they began 1undm-g on the cabin boy. Soon afterward, they were rescued, brought home, and (to heir documents through what we modestly surprise) c h a r d  with murder. d the Socratic method. In the classic It seemed, however, h t  there was version of the fom, the Socratic professor more to thh facts than this and that assigns students a text - a statute, a case, sornetfnng more was, somehow, a contract, or what have you. The impo&t. Professor Allen seemed p r o h r  asks students a series of unsurprised we had not grasped this, but *? ; 'First, fa& matter. carefully. Second, ev matters. Read everyt \ . \ - I  he was remorseless. He eventually ' wrenched every sigdtcant fact out of the taught by example two momentous aquire a sense of the h d s  of questions lessons. First, facts matter. Read them 1 they should learn to ask (at fim carefully. Second, everydung matters. / deliberately, eventually by second nature). Read everythmg carefully. Really carefdlly. The professor asks students another kind After Professor Allen had finally gotten of question as well. These are questions us to tell him just how rnany cans of about students' responses to the first set of turnips had been on board the lifeboat questions. These latter questions are (two), he plowed on with question after authority, he inquired, had the court ., designed to help students criticize their question about the procedural history of consulted? We scoured the opinion for ' initial responses, to teach them the the case. It had not occurred to us to care statutes and precedents, but Professor I Allen wearied not until we had uncovered every one. Then, well, then he wanted to must be read carefully. court's rebuttal of contrary authority really Professor Allen then asked someone to convincing? describe the issue the court sought to Then Professor Allen asked whether the court's reasoning was sound. We encounter sill lively in my mind after a not enough, we then had to consrruct a not dissatisfy him too painfully. Having defined the issue, Professor consonant with justice. Then Professor Allen suddenly shifted ground and asked a series of questions Professor Allen proffered help. What - - my knd, and I o d m n p  appa&dy na in-bk buttbrewas (80 the qustions I expected. In sha, r without rahmg it, I had been seduced &to 25egi"ing to thmk like a lawyer. I had hewn to read more carefully and &tica1$. 1 had begun to ask the questions R kwym ask. I had begun to ~ u p p i r s  m.me kinds of answers and pursue others. I ~ I i h y l k y o u c a n x e f r o m ~  account, rhe Socmtic method does whatt. I lectures cannot - it demands b t  srudents do what they mast need to do - I pmake some aspens of the lawyds d t .  I This alone justifies the Socratic method, I partbmlary when the only practical I alternative is the lecture. Bwt that method ,, .. I has other, apeably ~ ~ c t i c a 1 ,  advantages. I/ Let me again be fmnk3karniq is hard. It I hurts. People postpone it as long as they I dare. nq skim rea* they slap dsss. 1 Bur students who h o w  they might be i eked questions in class hiiM an incentive I I to prepre regukrly. Even off its peak, ! then, the kcratic method- stimulates / students in the way Dr. Smud Johnson I wryly descrikd: "Depend upon it, Sir. / whenamanbwsheistobehangedin ! dortnigkt, it concentrates tus mind wonderfully." Catholic doctrine speaks of occasions for the S m t i c  method imposes regular C X ~ ~ ~ D I L S  for learning. I The Socratic method not oay gives Ctudents regular incentives to work, it Rewards thun for it. Because tbe method tsks studentsm lem by doing, because it \ :omcts arm and r m &  bights, emuse it ckdlenga students to react and fleet, hause it more deeply engaps R a&' minds,ds a d J  because -it dmws I-. -1+meisa iGmtem~tcn  d u t g p l t l y u W ~ 1 ~ h  5waticmabod-j-d- - ~ t i t ~ t r h e ~ ~ a f  dcl-? k. h fact it b'dWfS S N ~  m ~ ~ 1 ~ ~ a a c t l y b ~ i t g i v a  them an incentive fix kmdngit - the d & m k  i t h p ~ m g f r n i m d  pank5patin.g in h. And it gives the professor a of how well thg c h  is progmsiq. Another question I am frecydy asked d w a y s ~ e s ~ - h o w m ~  Sm6C ntew be u5ed m teach Smdients who do not know the h ? T b i s n o t  a prablen, and, to be honest, I am not sure why it should be. You don't have to know €!vm to c3ixXlS w-. Most legal issues q u h  h m g  a set of texts, and these tam a n  be presented for the smdat's r e a h  before the dixusim. The Socratic method U p s  stuEEents ask the right guestions dbout what they are ream. The less experienced and learned students are, the less sophistiate the ~ECLESOQ.. But students must stm somewhere whatever method p h ~  use, and their r m d e ~ d b g  is dwajrs sumcia1 a k t .  The Socmtic m&od moves novices t o ~ d , ~ ~  f e r  than any alternative, yet it em ddlenge even the most advanced smdehts to confront the moist advanced problems Japanese audiences dm SU- to me that kratic t a m  isso ckflicudt thaa profkssofs will resist using it md use: it badly. Good S8cxa& teaching is d o u s .  Every moment poses fresh @go@d problems, problems that vary h m  student to student d day to day and year to year. The profksm is like a sheepdog: He must walk into elas the master of all tZze relevant mated, knowing his g d  and his road to it, flexile enow to map up any pedago@cal opportunities that present themselves. He must pose seadung questions that nudge students toward pductive mposes, 1Wqn aggessiyely EO studknts' m e = ,  q2eiddy sense when rr;qTIJirs gifts at least is mre. The r d  rigomus qwsio~ls, the proksmr goes fw I' t o w a t . d ~ g s t u d e n t s m ~ a r r d t o  i makeoncmcaeadmirsion: %matic 1 I think like a lawyer. Yet perhaps I should , lau* You can't just rely on last lecture notes. On the other M, Socratie , t a r s g  repays the inyes-. It prrsmts rich and opportunities. It @viw p h m  toww p m h ~ y l ~ t h  h~k on &B of moment. Of corme the p m h  can k anticipate the available analytic approache. But Z have nat m u e s  the s ~ z p ~ t s  p m f k d  by their ar-u for them h ha, mdenzsS m: studerr& and myself. - E EbUp, I often .hear that while Smxtic , tea* m y  work in w9 it m w m  fd in Japan. This a p p n g ~ h t  m y  rests on h e  b W  that h t i c  teaching is  vehicles for ciimxsioa and stmiems find c r v s e s m o r e m ~ e t o d m h  II statutes, which cen be re&aY compl-! and imprsod. & ~ t  my-kgd ~&IXII&~ am su&k1ny be + &rahay. What is mose, judicial opinkm are inmasingly pmmhent in Japanese utd stimuhting hypothetical cases am To be sure, Japanese and German two casebooks that writing them is if the faculty exercises its authority to establish &om the students' arrival that Another reason people suspect Somatic your students. There are people of real t e a h g  is less suited to Japan than intelligence who will never learn to think with an aptitude for the kind of reasoning the Socratic method teaches. This makes life delightfully easier for both students and professors. Second - and here again students an essential incentive to take divided between doctors and patients and, class eously ,  an incentive German and more largeb'~ of the role of a ~ t o n o m ~  in American culture. He is currently writing a preferable because it so far surpasses the in virtues, Let me be frank with you one last time. 1 do not promise you a rose , garden. There are days when my students want the cup of my questions to pass from their lips There are days I am discouraged by my failure to inspire my students with my love for my subject and to bring them to the level of .L,- 1.: , , - T - ' "  . - 

Teaching Lawyers: American practice and Japanese Possibilities

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Teaching Lawyers: American practice and Japanese Possibilities

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