Gellhorn, Walter

English

St. John's University School of Law

St. John's Law Review Volume 50 Number 3 Volume 50, Spring 1976, Number 3 Article 3 August 2012 Current Trends in Legal Education and the Legal Profession--An Academician's View Walter Gellhorn Follow this and additional works at: https://scholarship.law.stjohns.edu/lawreview Recommended Citation Gellhorn, Walter (1976) "Current Trends in Legal Education and the Legal Profession--An Academician's View," St. John's Law Review: Vol. 50 : No. 3 , Article 3. Available at: https://scholarship.law.stjohns.edu/lawreview/vol50/iss3/3 This Symposium is brought to you for free and open access by the Journals at St. John's Law Scholarship Repository. It has been accepted for inclusion in St. John's Law Review by an authorized editor of St. John's Law Scholarship Repository. For more information, please contact selbyc@stjohns.edu. CURRENT TRENDS IN LEGAL EDUCATIONAND THE LEGAL PROFESSIONAN ACADEMICIAN'S VIEWWALTER GELLHORN*The papers comprising this Symposium on Whither We AreDrifting (or, anyway, Should Be Drifting) offer a wide selection ofinformation, insight, and, occasionally, invective. I read all of themwith interest and some of them with admiration. That is to say, Iagreed with some more than with others. A well-designed sym-posium, as this one is, necessarily reflects differences in outlookand conclusions. Despite their differing views, however, all the dis-tinguished participants in this discussion shared a concerned en-thusiasm for legal education and an optimistic belief that it mightconceivably produce social benefit. None of the contributors forth-rightly denounced law schools for what they are doing, thoughsome thought they should do more or do it somewhat differently.As a law teacher, I take pleasure in the writings of those whobelieve organized instructional programs make for improved pro-fessional performance and, in the end, for a better society. At thesame time, I occasionally find myself fearful that teachers may beexpected to do too much in too short a period. One is aware, forexample, of widespread demands that the elementary and highschools expand their effectiveness by assuming all manner of tasksworth doing, but left undone by others: Pupils should be taughtreading, writing, mathematical and other skills, good citizenship,how to drive a motorcar, where babies come from, race relations,the perils of narcotics addiction, a world outlook, stenography, themenace of communism, proper dietary practices, pottery making,avoidance of venereal disease, consumerism, foreign languages,baton twirling, and how to beat the rules of football without beingcaught by the referee. If, in the end, schools' diffused effort pro-duces lesser accomplishment, most of us criticize the schools in-stead of wondering whether the demands made upon them wererealistic to begin with. Something of the same kind may happen tolaw schools if hopes of accomplishment mount too high.Some 50-odd years ago, Harlan Fiske Stone, then the dean ofthe Columbia law faculty, exclaimed that he had at long last de-signed the perfect law school curriculum. Its sole defect, he rue-* University Professor Emeritus, Columbia University School of Law. A.B., AmherstCollege, 1927; LL.B., Columbia University, 1931.436AN ACADEMICIAN'S VIEWfully added, was that its completion would necessitate 10 years ofstudy. Today, as was true in Dean Stone's time, only 84 weeks -not "3 years," as is usually said, but a mere year and eight-thirteenths- are devoted to the formal study of lawyering. Onehears complaints about how much remains to be done after lawschool graduation before a completely polished lawyer makes thelight of his countenance to shine upon the world. Instead, oneshould be hearing exclamations of wonderment that so much prog-ress has been achieved in so brief a period of study.Progress could not have been achieved if, as some of thesymposiasts seemingly believe, law teachers still endorsed the con-ception that law is a science whose principles are discernible en-tirely in judicial opinions. Rather, most teachers are of the Holmes-ian persuasion that the life of the law has been experience. Booksare indeed the main diet of law students; they are used, however,not so much as revelations of doctrine as recordations of experi-ence. The casebook in Contracts tells a story about what a client didand about what his lawyer did and about the consequences ofapproaching a problem in this way instead of that way. The Estatescasebook tells a story about what a lawyer did or failed to do in aneffort to effectuate a testator's desires. The Administrative Lawcasebook tells a story about the consequences of an administrator'sprocedural choice, thus stimulating a consideration of how theconsequences might have been altered, for better or for worse, hadsome other choice been made. So it is throughout the curriculum.Law schools are, in short, engaged in intensive study of experience.Must all experience, if it is to be effective, be had at first hand?I think not. I find much wisdom in folk sayings like "Learn fromthe mistakes of others; life is too short for you to make all of themyourself." Henry Ford had that same thought in mind when heasserted: "The school of experience is absolutely the best. The onlytrouble with it is that its graduates are too old to go to work." Lawschools compress into a very short period a vast amount of profes-sional experience which can be organized and appraised and com-pared with other experience; this enables young women and mento begin careers before they themselves have accumulated profes-sional experience episodically over a longer span of years. Ofcourse some lessons are learned lastingly and dramatically by directexperience, as is suggested by the adage: "A burnt child avoids thefire." How many sensible parents believe, however, that their chil-dren should be exposed to burns in order to discover the desirabil-ity of avoiding them in the future?ST. JOHN'S LAW REVIEWStill, law schools probably should bestir themselves to expandtheir students' encounters with pertinent experience. Most lawschools' curricula remain too focused upon what can be found inappellate courts' opinions, though the bulk of modern lawyering isnot reflected there. Hence, added pedagogic attention to relevantprofessional activity in other areas of life would no doubt enhancelaw students' skills and sensitivities. This may be done by variousmeans, including clinical programs (preferably those which are wellstructured rather than purely happenstantial), simulation, draftingexercises, and problem solving.Some say that nobody should be allowed to become a practic-ing lawyer unless he has first completed a set of prescribed courseswhich will have enlightened him about lawyers' work. This is not anewly asserted proposition. Twenty-odd years ago a clamorousdemand was made, for example, that demonstrated ability to com-plete a title search should be a prerequisite to admission to the bar,and in at least one state nobody could sit for the bar examinationunless he had completed a 3-hour, 1-semester course in mortgageson real property. I hazard the guess that many of the distin-guished, effective, and materially successful contributors to thisSymposium never in their lives had occasion to search title, and Isuspect that their careers could have advanced fruitfully withoutclose study of mortgages. Yet, had the counsels of well-meaningand experienced practitioners been heeded in the past, these ablepeople might have been encumbered by superfluous programs ofinstruction or, lacking those programs, have been deemed unqual-ified. One of the papers in the present collection expresses beliefthat every private practitioner's daily work is affected to somedegree by pension reform laws, the movement toward a uniformprobate code, no-fault automobile insurance, the 1975 tax lawrevision, "truth in lending" regulations, and controls over securitiesissuance. For many practitioners these are no doubt matters ofmoment. Without a great deal of effort, however, I have been ableto think of some whose daily work they do not touch. In short,attempting to define in an authoritative way What Every GoodLawyer Should Know is a risky undertaking.Even were the proposition of universal need more clearlysupportable than I deem it to be, law schools would be ill advised toattempt to meet it. "Information keeps no better than fish," thephilosopher Whitehead tells us. Today's "truth in lending" regula-tion may be amended tomorrow; the pension reform of 1975 mayhave to be forgotten before the end of 1976; and a lawyer would ill[Vol. 50:436AN ACADEMICIAN'S VIEWserve his clients if he rested on his recollection of what he hadheard in a course about the revenue law in effect while he was stilla student. Legal education is not designed to give information. Itdoes sharpen awareness of the need to know, and it certainlyshould enhance ability to learn what is needed, when it is needed.But it cannot provide students a cupboard inexhaustibly full ofgoodies to be withdrawn as may be required during professionalcareers lasting some 40 years. Continuing legal education mayjustifiably be deemed a means of replenishing the cupboard,though assuredly it is not the sole means, or even necessarily themost effective means, of a conscientious, energetic lawyer's keepingabreast of developments.Advocates of compulsory courses in law school or afterwardare, in my belief, unrealistically optimistic about the consequencesof having had a course. Every law teacher knows that his words dentthe brains of only a minor fraction of those who purport to studyin a course under his direction. Every lawyer, if he can look backupon his own student days unsentimentally, knows that he himselfwas among the unreached majority in various courses in which heenrolled, perhaps especially those in which he was forced to enroll.Requiring all students to complete specified courses in order torepresent parties in litigation will not, in my belief, assure thecompetence which judges and high-minded attorneys hope willbecome characteristic of trial lawyers. An empirical study mightvery possibly show that most of the assertedly incompetent triallawyers in New York did in fact take all or nearly all the courseswhich are now proposed to be made obligatory. And I will wagerthat most of the incompetent trial judges (of whom a few do exist, Ihave been told) took similar courses, later fortified by active prac-tice in courtrooms.Is the moral, then, that what occurs in legal education is of nomoment? That is certainly not my conclusion. My suggestions pointin other directions. First, the qualities of the law students whoultimately become this country's lawyers are so diverse and thestudents' responses to educational stimuli so varied that a pre-scribed program will not produce a standardized result, no matterhow earnestly it be desired. Second, the tasks of the modern legalprofession are so variegated that any attempt to define what is"practical training" must err on the side of artificial narrowness orboundless prolongation of schooling. A course which bears oneconomic relations with developing nations may, for some hard-headed practitioners, be intensely practical, as may be a course in1976]ST. JOHN'S LAW REVIEWChinese Communist Law; not long ago a lively market arose forthose who had studied Near and Middle Eastern Legal Institutions,a course not likely to appear in most listings of what is "practical."Conversely, a "practical" course in trial advocacy may prove to behighly "theoretical" if the professional demands upon the personwho took it do not lead to the courtroom. Predicting what aneophyte lawyer will need is rarely possible because few can foretellwith reasonable assurance the nature of a law student's futureresponsibilities.Finally, law school is meant to prepare a student for profes-sional life, not for the first moment of a professional life. Mentalequipment must be built to withstand decades of hard wear andtear; a good foundation must be laid for beginning the building ofmethodological skills, a building process which will continuethroughout a career and, at the end, will rarely have been broughtto perfect completion. To suppose that lawyers can be produced byan educational assembly line is chimerical. What the best kind oflegal education does produce is a young person who has seen whatlawyers do, that is, has noted and thought about their experience innumerous settings, and is ready to begin the constant self-polishingwhich leads to being an experienced, able, and worthy leader of thebar.

Current Trends in Legal Education and the Legal Profession--An Academician\u27s View

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Current Trends in Legal Education and the Legal Profession--An Academician\u27s View

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