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September 11, 2013

Legal education for non-lawyers: Why?

by Dan Rodriguez

I will have much more to say on the “how” question.  And, over the course of the next few weeks, I look forward to sharing with readers some of the exciting information about our new Master of Science in Law program for Scientists, Engineers, and Medical Professionals — what I have come to calling LAW-STEM as a shorthand.

But let me help in setting the table by focusing on the “why” question:

Start with some assumptions that the law school world takes for granted:  We are in the business of training lawyers.  We train students for careers not “in the law” but “as lawyers.”  The difference in these phrases is a salient one, for the principal reason that the guilds that control access to the profession of lawyering, the state bar examiners, mandate (for the most part) that a license is required to “practice law” and, further, that a JD degree from an ABA-accredited law school (again, for the most part) is required to sit for the bar.

Herewith a central mantra of our profession: Law schools train would-be lawyers; and only lawyers practice law.

But the project of educating folks in law for the careers they will undertake is much broader than the project of training lawyers.  Legal education is critical for many endeavors in both the business world in the public sector.  Consider just three examples of many:

  • a director of human resources at a large company develops and implements policies for employees.  They rely, to be sure, upon lawyers within the company and outside to give them targeted legal advice and, where things go south, to represent them in the relevant tribunals.  But the judgment they exercise daily in their interaction with employees, with supervisors, and in the construction of generally applicable policies is, in no small part, legal judgment.  They benefit greatly from foundational knowledge in employment law, contracts, freedom of expression, and agency law (among other subjects);
  • A grant administrator in a large public university works closely with faculty, senior-level administrators, and state and federal agencies on the configuration and implementation of grants.  The stakes in the successful administration of these programs are quite high for the university and its faculty and students.  There are, of course, myriad rules and regulations; there are also relevant administrative, civil, and even criminal laws that pertain to the administration of these grants.  Again, lawyers in the general counsel’s office will provide counseling and representation; but the daily work of the grant administrator will benefit from foundational knowledge of administrative law, contract law, and other salient subjects;
  • An engineer develops a new idea and sets out, as a would-be entrepreneur, to develop a company to carry out her goals.  In doing so, she must create both a business plan and also a legal strategy.  This strategy will involve issues of intellectual property law, corporate law, and, perhaps down the road, human resources/employment law.  Yes, this entrepreneur is well-advised to seek out a “real” lawyer, but the judgment of how — or even whether — to press ahead with this creative initiative will profit from some foundational, and even applied, knowledge of legal rules and concepts.

I want to embroider on this “and concepts” point for a sec.  As we know from the work we do with law students, it is ordinarily not sufficient to simply “look up” the law.  We want our students to have foundational, core knowledge upon which to build with a structure of key competencies, specific legal information, and a strategy for researching and communicating the law and pertinent legal rules.  In short, we expect our law students to develop not only, or even especially, mechanical skills, but analytical skills.  And we expect that these skills will be built on a coherent edifice of foundational knowledge.

We should want roughly the same for those individuals who will benefit from specialized legal knowledge — as in the three examples above.  “A little knowledge is a dangerous thing,” as the saying goes.  It will be important to see legal training for non-lawyers in the somewhat wider context of imparting foundational knowledge and core legal concepts, not simply gesturing toward rulebooks, not simply giving them the quick and dirty description of applicable statutes, regulations, and caselaw.

So, to come back to the “why” question:  Legal education can and ought to be broadened to include a wider audience than just the training of lawyers.  We should think about the project and promise of contemporary legal education as about educating individuals in law and legal concepts so as to enable them to thrive in spaces where law matters greatly, but where they do not aspire to “practice law” in the guild-constructed sense in which this phrase is typically deployed.

Thus far I have elided the deeper question of whether and to what extent we should rethink this wall between “practicing law” and non-lawyers deploying legal skills in concrete situations.  This is a hard, complex question for sure.  But, while this law persists, we should reflect upon whether legal educators should think about our functions, roles, and projects as so narrowly drawn.

In another post, I want to broaden this discussion even further, by describing the ways in which democraticizing legal education can have some social benefits.  Here, I am just making the practical point that educating non-lawyers is valuable for the non-lawyers.

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