Thinking Like a Professional

[The following is the text of my remarks earlier today to members of the first-year class at the session "Understanding the Law School Classroom: Preparation, Note Taking and Class Participation."]

    My colleague Naomi Mezey has a talk for first-year students that she calls “The Seven Stages of the First Year.”  The first stage--the one you’re in now--is “Total Confusion.”  I’d like to try to explain why the first weeks of law school are so confusing and what you can do to advance to Professor Mezey’s next stage, “Provisional Understanding.”

    Let’s start with the sources of confusion.  I think they fall under three headings, which I’ll state as questions.  First, what is it that we study when we study law?  Second, how do we study when we study law?  Third, where are the rules?

    So, what is it that we study when we study law?  It turns out that the “law” in law school is not one thing but many things.  Here are five possible meanings of the word.  First, law is a language, with its own vocabulary and grammar.  Second, it is a body--really, a galaxy--of legal rules.  Third, it is a set of institutions--courts, of course, but also legislatures, administrative agencies, private or quasi-public systems of arbitration and mediation.  Fourth, law is a profession, with its own organizations, norms, and conventions.  Fifth, it is a scholarly discipline, jurisprudence, which has been influenced by other scholarly disciplines, like history, sociology, economics, literature, and psychology.

    Now you might think that it would make sense to have professors take up the law in each of these various meanings in its own class or series of classes.  We could break up each field of law into its constituent parts and methodically guide you from the most basic to the most sophisticated in a linear and cumulative way.  We wouldn’t double back, and what you learned in one class would be the foundation you built upon in the next.

    But that’s where the “how do we study when we study law” question comes in.  I don’t want to argue that the law-school curriculum isn’t cumulative in any sense of the word.  That was true, once.  For a large part of the nineteenth century, classes were not segregated into first and subsequent years; law school was a merry-go-round that student could jump on or off at any point.  After 1870, however, under the influence of Harvard’s law dean Christopher Columbus Langdell a required first-year curriculum was established.  This included the common-law trilogy of property, contract and tort, in which students learned the default rules of a legal system, rules that, as they learned in their upper-level classes, might sometimes be changed or supplemented in various by statute to deal with particular social or economic problems.  It also had courses in civil and criminal procedure and legal research and writing to prepare students for more trial practice and clinics.

    But the first-year curriculum is not cumulative or linear when you consider the five meanings of law.  In any class, at any minute, the professor might make a point about one of them, then drop it and move on to another.  To make matters worse, particularly in these first weeks of classes you don’t yet have the experience to know which is which--to know when the professor is making a point about the reach of legal rule, for example, or when she’s talking about its social significance.

    So how we study law is not a methodical, linear and cumulative process.  It’s an immersion experience.  We chuck you in the water, which turns out to be less like a swimming pool than the raging ocean at the start of “The Bourne Identity.”  (Okay, maybe that's overly dramatic.)  You start splashing around, and as you do fragments of law, in its various guises, float past.  My suggestion is that you grab hold of the pieces you think you understand and lash them together to form a raft that keeps you afloat.  Don’t worry that your raft doesn’t look exactly like your neighbor’s raft, because we’ve purposely selected a first-year class with people with different backgrounds in it.  These different experiences and talents mean that you won’t all recognize the same bits of flotsam and jetsam at the same time.

    Well, I suggested that the question, “Where are the rules?” as the third source of confusion in the first weeks of law school.  Many of you are in law school because you’ve observed that lawyers have a great deal of power in our society, that they make people do things or not do things by the exercise of their authority.  You’re here to get what they had, which you imagine is some fixed body of knowledge, some book of spells.  You’ve put down your money and showed up, and now your professors won’t show you the book of spells, and it’s very frustrating.

    Most of us will expect you to be able to say the right incantations on the final exam, and we’ll grade you on how well you do that.  But for many of us, I think, performance on the exam is only a proxy, and not always a very accurate one, for your progress in a more general transformation in the first year.

    You’ve probably all heard that the first year of law school is not about learning blackletter law; it’s about learning to think like a lawyer.  I think it would be better to say, it’s about learning to think like a professional.  Because it turns out that society grants professionals autonomy and authority not just because they understand a body of knowledge but because they have made an informed commitment to take responsibility for how they use it.  They know that their clients can go to jail or be financially or emotionally ruined because of what they advise, and they realize that what they advise is not, or not just, what they think is right, but that it is likely to be what the relevant decisionmaker thinks is the law.

    I think most of your professors assume that classrooms have been fairly passive places for you, where your job has been to write down what you’ve been told so that you can reproduce it accurately later.  If we conducted the law-school classroom that way, we’d fail at our most important job as first-year teachers, which is to instill in you a professional mindset, an understanding that you’re responsible not just for what you think and believe, but for the consequences that follow for others as a result of your advice.  At the most fundamental level, then, what we’re about is the inculcation of a habit, and not conveying information, and this means we want to make the classroom a very active place, where you practice making claims about the law and consider their consequences, a dry run for your career as a professional.

    Well, if that is the most important thing that happens in law school, what should you be doing or not doing for class?  Three things come to mind.  First, you should not be alarmed if you go through a whole class without ever hearing something that you think you should write down. Chances are, you’ve just had a class that was devoted to “thinking like a professional”; there will be other ones when the professor finally opens the book of spells and gives you something you’ll need on the exam.

    Second, you should be prepared.  Most of your professors prefer to spend as little time as possible verifying that you know what we think you should know from the reading.  Especially after the first weeks, I’m afraid many of us--I include myself--tend to slight having students state aloud what they should know to get on to the much more interesting activity of seeing what you can do with what you know.  To prepare for that kind of a classroom experience, it’s not enough to do the reading, which might have sufficed when you were an undergraduate.  You have to go further and think about the implications and possible contradictions in your reading.

    Third, you have to attend.  By attend I don’t just mean showing up, although I know sometimes even that can be a challenge.  I mean attend in the sense of “to give attention to” or “to apply or direct oneself."  I’m saying you should to pay attention--observe very closely--what transpires in class.

    Here I think the most obvious and controversial issue to discuss is computers in the classroom.  Not too long ago that issue provoked a very sharp exchange among the members of the faculty, so I know I can’t present you with anything like a consensual view.  The issue is also hard for me because like most members of the faculty my own experience of the law-school classroom was very much a matter a pen and paper; even personal desktop computers were still a year or two in the future when I graduated.  Because you’ve used computers in class for some time, you may experience it very differently than I did, and in ways I don’t understand.

    So rather than be dogmatic, I think I’ll just give you a caveat.  If the law-school classroom was simply a matter of readings from the book of spells, then perhaps it would be possible to take notes and surf the web at the same time.  But if it’s about acquiring a habit of thought, it requires your undivided attention.

    So good luck with the remaining weeks of Total Confusion.  May you all proceed to Provisional Understanding as quickly as possible.

Comments

[Dan Ernst]

I owe the point about the nonlinear, noncumulative nature of legal education to John Henry Schlegel's "Those Weren’t 'The Good Old Days,' Just the Old Days: Laura Kalman on Yale Law School in the Sixties," Law and Social Inquiry 32 (2007): 841–868.