An open letter to those considering law school...
"Why become a lawyer"? As the recent decline in law school enrollment numbers suggest, this question has been unsatisfactorily answered for the last few years.
But, it is the wrong question. The question all future law students should ask is: "What does being a lawyer mean?"
Being a lawyer should "mean" something -- to society, to the profession, to your sense of purpose in life.
And, as someone who has watched generations of lawyers find meaning in law, I can state with certainty that this country needs architects of change in a world undergoing change. It needs dreamers and risk-takers equipped and committed to use the law to help shape new institutions, utilize new technologies to radically expand access to justice, enlist our communities as partners to create alternatives to prisons and training schools for juveniles. It needs persons, valued for thinking outside the box and dedicated to bridge the chasms of race, class, gender, national origin, language and the "isms" that divide this nation.
I can also state, that the modern law school is failing to provide the inspiration to meet those challenges. So, as you consider the question of what does being a lawyer mean, ask yourself whether the law school you choose will provide that meaning.
From fifty years of work transforming law to benefit those without power or access to legal services, I respectfully suggest you consider the following five questions before choosing a law school:
1. In law school, will the question of "What is justice?" be taught with the same rigor as "What is law?"
At my law school, the very first class students take is titled Law and Justice. And we ask another question: What do you know about injustice? Each and every student shares the essay he or she wrote in their admissions application: "Describe an instance of injustice to which you were personally subjected, or that you personally witnessed. What did you do then? And in retrospect, what would you do now?"
So we get educated by the students. More specifically, I get educated by my students -- because I teach that course. And we believe the profession is enriched by the addition of a stream of graduates who actually know something about injustice. And since the course is called Law and Justice, I put myself on the line to share the definition of justice, which my father taught me. He didn't think human beings could grasp what justice was. It was too general, too vague, too abstract, too ideal and absolute. But he believed, and I believe, we are born with an innate capacity to recognize and respond to injustice, to disparities of treatment or outcome that are so unjustified as to be simply unacceptable, intolerable. As a starting point in your legal careers, I ask my students to adopt as a provisional definition the one that my father, the legal philosopher, Edmond Cahn, taught me: "Justice means the active process of remedying or preventing what would arouse the sense of injustice." It is a question that no law school or lawyer should ignore.
2. Does the curriculum and grading system of the law school speak to lawyering competence with clients?
Many law schools are designed merely to evaluate student test taking competence. But, the practice of law is not a series of formal tests, but a series of interactions with human beings. Many of those human beings have vast needs, more complex than could ever be distilled on an exam. These are the learning experiences of good lawyers. Only through repeated, clinical experience can a student begin seeing the law through the eyes of a client. Every student at my law school completes 700-plus hours of clinical work -- two, full, seven credit clinics -- with live clients, learning the law like lawyers. This clinical spirit forms the core of the curriculum, because it offers a true connection to real people and real law.
In addition, law students should be graded on the complexity they will face in practice. In the law school curriculum we designed -- we decided that a simple, overall grade told us nothing, so that every clinical professor has to make a separate assessment of competence in problem solving, practice management, professional responsibility, communication (oral and written) as well as legal analysis. And the grading system is based upon risk to the consumer, the client: What degree and intensity of supervision is needed to protect the client from malpractice, and to assure appropriate level of competence in representation?
3. What grounding will law school offer to equip you with to respond to entire systems that perpetuate injustice?
How do we deal with whole legal systems that are failing? As a lawyer, you are entering a legal system that has deep inadequacies with serving poor communities, has ingrained class discrimination and, by design, was constructed to maintain the status quo. In law school, you will be taught "systems management," not systems change. You will be taught to exploit a system already designed to keep money and power in the hands of the few.
Law schools don't teach systems change well. Even in clinical programs, when law schools provide opportunity to represent individuals -- the cases are often randomly selected casualties, road kill of broken systems. Take special education litigation -- maybe a clinic will secure an IEP (Individual Education Plan) for one student, or a dozen students -- but suppose, as in Washington D.C., there is not a single public elementary school in the lowest income Wards that has 50 percent of the third graders entering fourth grade able to read at a third grade level. A single IEP cannot change a system that is fundamentally broken.
The answer is to require that every clinical instructor in the LLM program take a course in System Change. Yes, required, because effective remedy requires system change strategies with traction and staying power. System change is different from problem solving. Problem solving is what one does on behalf of a client. System change is what is needed to advance a vision of the world we want to create, and the world we want to leave for those who come after us.
4. How does your law school deal with the pervasive racial disparity that permeates virtually every public system (child welfare, academic achievement, school dropouts, juvenile justice, substance abuse, foster care, corrections and health care)? Perhaps equally important, does the law school, itself, reflect those problems?
How diverse is your law school? How can one teach the importance of changing the face of law, without a diverse student body and faculty? Race, gender, age, sexual-orientation, experience, must be lived in practice, not just taught in principle.
In the scramble for higher rankings, based on higher and higher LSATs, schools sacrifice practical thinking, diversity and depth for prestige. Did you know that the LSAT does not even purport to predict lawyering competence? It only predicts test taking capacity. Worse, there is extensive documentation of the racial and ethnic disparities in standardized testing performance, and its effect on admission to law school. How can we champion diversity in society, if we fail in law schools?
And, how should we champion diversity beyond the gates of the law school? How can we overcome the legacy of weakened anti-discrimination rulings of the Supreme Court on affirmative action and other issues? For example, for nearly four decades, the intent requirement set forth in Washington v. Davis, 426 U.S. 229 (1976) has thwarted efforts by lawyers for civil rights groups to dismantle systems that produce those disparities.
Recently, the Kellogg Foundation invested in a Racial Justice Initiative by my law school and TimeBanks U.S.A. that undertook a new way to turn that requirement into a source of leverage. It builds upon language in City of Canton v. Harris, 489 U.S. 378 (1989): Intent can be inferred when government policymakers decide among alternatives to follow an injurious course of action, demonstrating a deliberate indifference to rights protected by the United States Constitution and federal laws. The really radical idea is this: Can we compel officials to make use of knowledge -- knowledge about alternatives that work, that are less expensive and that reduce disparity when current practice generates disparities?
The approach that my law school and TimeBanks U.S.A. developed involves a Public Notice Forum that puts officials on formal notice of two things: The disparity produced by present practice, and the existence of alternatives that have been validated would save money and reduce disparity. Once on notice, going back to business as usual amounts to an intentional decision to reject making use of knowledge of what works, saves money and reduces disparity.
That means your legal education about remedies needs to extend beyond damages and specific performance, to knowledge about the vast array of projects, innovations, and creative alternatives that have emerged and will continue to emerge. Universities are repositories of such knowledge gleaned from foundations, government research and extensive academic research. The question for your legal education needs to be: Is the law school you choose associated with a university that is merely a mausoleum for the storage and burial of that knowledge?
5. Have you considered whether the legal delivery system -- a system which feeds on debt-ridden recent law graduates desperate to pay off law school loans -- perpetuates injustice?
I don't know of many lawyers who can afford a lawyer, let alone ordinary people. Who is benefiting from the law school market of young lawyers? The extremely wealthy, big money corporate interests, and the law schools who can justify charging four times the tuition of what other law schools charge by servicing those big money interests.
Isn't it time we look at what we ourselves are producing and ask: What can be done to reconfigure the legal system itself to produce justice. States report that in family law, domestic violence, land-lord tenant and small claims matters, 65 percent to 98 percent of cases involve at last one unrepresented litigant. Efforts to establish a right to counsel in civil cases (Civil Gideon) have been rejected as too costly. So-called unbundled legal services (providing just initial counseling) has proven ineffectual. Confronting this reality, new clinically based scholarship is now advancing what is characterized as a demand side approach, that would call on trial courts to start making serious efforts to assist the unrepresented in preserving and advancing the merits of their cases.
But, really, we need radical system change -- change that will not come from those law schools with vested interest in the status quo. It begins with low cost law schools which allow graduates to pursue their passion without excessive debt. It envisions change that includes new models for law practice, new forms of legal insurance, new ways to co-pay for legal services with community service and more extensive development of law-help software systems to supply the alchemy needed to transform the law's rights and duties, powers and privileges into equal justice. My own efforts have been to utilize co-production: enlisting the clients of legal service programs as co-producers of justice. So TimeBanks U.S.A. is now partnering with my law school to provide legal services to homeless veterans in return for them helping other veterans get their benefits and secure housing. Similar efforts are being developed to provide legal help for the elderly in return for their undertaking to pay it forward.
Finally, just remember to take seriously the mission of the schools you are considering. At the end of three years, you will not only learn to "think like a lawyer," but you will think like the type of lawyer your school intended. I have had the rare fortune of creating a law school with the mission I envision. I know that our graduates are committed to public service and have learned the competencies of lawyering through rigorous clinical practice with real people in need of legal services. But each law school is different, and you will become connected with that law school for life. So consider carefully.
The choice is yours. Tens of thousands of people have stood in your shoes and asked the wrong question. Ask the right one. What does it mean to become a lawyer? If you answer that question -- and see the potential meaning that exists in law and law school -- you will have an answer you can live with.