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August 12, 2013

ABA Task Force Report comments

by Dan Rodriguez

from veteran legal educator, Dean Joseph Tomain:

“A core assumption of WP [ABA Task Force Working Paper]  is that legal education is caught in a fundamental tension between training lawyers as a public good (i.e. serving society) and training them for private practice (i.e. private gain.) (p. 5-6).  “Training,” not “education,” I add, is the WP word choice.  This emphasis on training is reinforced by the WP definitions of law, legal services providers, and legal education:

Law is the fundamental form of social ordering and dispute resolution in reasonably organized societies . . . .

Given this understanding of law, we will refer to a law services provider… As a person who is skilled in knowledge and application of law. A legal education program is a program of education in law or law-related fields that: (a) is designed to develop knowledge or skills in law or law-related field; and (b) prepares individuals to be law services providers.” (P. 4).

There are two things to be said about these definitions. First, they are consistent. Second, they are narrow. Law is a fundamental form of social ordering and it is a fundamental mechanism for dispute resolution. However, law is not procedural only.   Law has substance. That substance must be directed to some good. To paraphrase Augustine, unjust laws may not be laws at all.  Skills training will not empower us to make those distinctions.  Obviously, the jurisprudential debates about the separation or connection between law and justice are not settled and they are ongoing. However, it is the ongoingness of the debates that is central to a full legal education and is core to the traditional academic law school model.

Let me make a quick and rough distinction between education and training. I can train a reasonably intelligent eighth-grader to draft a non-compete clause in 10 or 15 minutes.  I cannot, however, educate them about market definition, information asymmetries, or public policies regarding employment in different sectors of the economy.  One might quickly ask: Why would someone who knows how to draft such a clause need to know about economics and market dynamics? The answer is as simple as it is obvious. They need to know the context so that they can critically assess a non-compete clause or draft one in another situation for another client.  Without the scholarly work in law and economics or jurisprudence or behavior psychology or other disciplines, the ability to analyze and criticize rules and principles of law is made more difficult if not impossible.

By focusing its analysis on training rather than education, the WP assumes some of its own conclusions.  Most particularly, the WP strongly advocates heterogeneity in legal education, which I believe is a very good and important recommendation.  The WP also advocates the need for law schools to be more responsive to the needs and demands of a changing legal profession.  This is an idea that has some attraction but the depth and extent of how far law schools should go in responding to the needs of the market or the legal profession other than educating lawyers under the standard model is precisely the issue for debate.   That assumption should not generate all of the WP recommendations as it does.”

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