An eminent member of the bar, carrying all the intellectual prestige of one who has led a venerated Ivy League institution, trained in the time when lawyer-statesmen walked the earth like giants, stood before his audience. Change was afoot, and a valued tradition was about to be lost. This is what he said:
Lawyers . . . have become experts in some special technical field. They do not practise law. They do not handle the general, miscellaneous interests of society. They are not general counsellors of right and obligation. . . . Lawyers are specialists, like all other men around them. . . . [This] necessarily separates them from the dwindling body of general practitioners who used to be our statesmen.
The time: 1910. The speaker: Woodrow Wilson.
In this, as in so many things, Wilson may have been ahead of his time.
At the time Wilson spoke, a big commercial firm perhaps had ten lawyers, and specialization still fell along very rough transactional / court room lines. As the century progressed, the firms grew larger, and the areas of specialization were more finely cut. The rise of the big state and federal administrative agencies gave birth to new lines of specialization, with important lawyers spending their lives in a practice based around the SEC or the Department of Labor. Financial practice grew ever more complex, with international flows of capital and exotic new financing devices providing new cubbyholes for specialized practice. As time went on, the slices of the pie got cut finer and finer.
The rise of the in-house counsel helped drive the change. In-house lawyers were capable of handling general tasks and giving general advice. Outside lawyers were useful mainly as specialists, either able to handle matters more efficiently because of their focus or having an expertise not available in house. Beyond that, in-house lawyers resisted paying to teach someone a new field, and responded well to hiring pitches from someone who had successfully handled exactly the same kind of case or deal before. By the time I became a young partner at the last tenth of the century it was consensus wisdom that the only sure route to enough client business to thrive was to pick a growing specialty and stick with it.
By the time Anthony Kronman reprised Wilson’s complaint in 1993 in The Lost Lawyer, the shift from generalists to specialists had transformed American legal practice.
Today, not just specialization, but a very fine grained specialization, is the norm in big firms and in many small firms. A stroll through the biographies of lawyers posted on firm websites will, if you cast a discerning eye, reveal lawyers who’ve spent their careers being not just litigators, but lawyers who handle class actions involving allegedly defective pharmaceuticals, or deal lawyers who handle not just deals, but handle entity formation and contract negotiations for smaller western companies planning to do business in China. A glance at the yellow pages will show small firms that specialize in personal injury or consumer bankruptcy or immigration.
As Michael Ariens concluded in a rare law professor analysis of this deep change in how lawyers work, the trend toward specialization has led to a redefinition of what constitutes a real lawyer – Wilson could idealize the generalist, but today it is specialization that marks a lawyer as a professional.
There are a number of implications of this historical process.
One is that lawyers today are not interchangeable. Put differently, despite their common professional label and training, different lawyers today do not solve the same kinds of problems or meet the same kinds of needs on behalf of their clients. This is different from the era when Langdell was learning about what law was in his rural home town — a lawyer’s tasks might change by the client, but the client could get the same kinds of service from any of the lawyers in town. Today, specialist knowledge of the kind that in-house counsel are willing to pay for takes years to develop, and they would be likely to smell a rat if a class action product liability litigator proposed to advise them on ERISA plans or international tax. Individual clients may be less sophisticated, but an immigration specialist would have a similarly hard time shifting to plaintiff side toxic tort litigation.
Another implication has to do with the way lawyers, at least corporate lawyers, relate to their clients. Rob Rosen looked at this from the demand side a decade ago, and found even then, before corporate procurement departments became the gateway to corporate legal work, that corporations view lawyers as just another set of technical consultants.
This leads to another implication – if lawyers are simply providing narrow gauge consulting services, why can’t others who are not lawyers compete for the same consulting work? In the corporate world, this, again, is exactly what has happened – as Mitt Regan and Palmer Heenan showed, corporate legal departments are comfortable disaggregating legal work and using lawyers or non-lawyers according to circumstances. In time, as regulatory barriers come under more attack, more people will join Deborah Rhode and Herbert Kritzer in asking why narrowly trained specialists can’t handle narrow gauge consumer issues.
Yet another issue follows from those – if lawyers are technical consultants offering a wide variety of not-interchangeable expertise, dealing with clients who view them as consultants in the particularized expertise they offer, competing against other technical consultants who are not lawyers, in what sense is the practice of law in such a setting a single occupation, much less a single profession? While all lawyers have in their background law school and law admission and can claim the social and status benefits of being in an elite profession, does this matter to how they do their jobs? How many rely on general skills obtained before law school and expertise obtained after law school – say, in a narrow regulatory field – and rarely apply their formal legal training? Why not organize regulation and licensing by the actual narrow field of expertise, rather than by the somewhat unrealistic notion that generalist lawyers have expertise across all technical fields involving law? As Laurel Terry has pointed out, the notion of thinking in terms of legal service providers rather than lawyers is taking hold internationally, with, I believe, an inevitable rethinking of how professional and occupational boundaries are drawn.
What does this mean for legal education? Langdell’s method, and his sense of what was needed to be a lawyer, arose in a common law era of small firms and generalist lawyers, with virtually all lawyers using similar knowledge and skills. That’s not the world we live in, and not a world that’s likely to return. The daily work of lawyers today varies tremendously from lawyer to lawyer, with little interchangeability of expertise and skills, and normally draws on specialized knowledge that is not part of the standard or even advanced law school curriculum.
In such a world, can law schools prepare students to be ‘practice ready’ for a 100 different kinds of practices involving 100 different kinds of technical knowledge? What common threads unite the working days of these disparate legal service providers that can be addressed in an educational program? More on that in another post.
I wouldn't take any comment by Wilson on the legal profession too seriously. After graduating from law school, he moved to Atlanta to open up a practice. In his eighteen months there, he did not attract a single client, then gave up law and went to get a PhD in history. Kind of reminds you of certain modern day law professors.
I'm not sure I understand how lawyer specialization makes "Langdell's method" (itself a contested and uncertain concept) outdated. Why doesn't it make that method more timely than ever, as highly specialized practices make it difficult if not impossible for graduates to be "practice ready"?
It is outdated in the sense that the kind of general, common law practice Langdell was preparing students for no longer represents what most lawyers do.
That Langdell's method is outdated does not make it useless. Just as putting is a very important part of the game of golf, some form of legal analysis remains an important part of the work of most lawyers, at least for any lawyers who are not engaged in a wholly commoditized practice. I'm not going to argue that law schools should abandon the task of teaching students to think like a lawyer. Neither will I that abstraction and theory are unimportant to practicing law, because I learned in practice that those are very practical skills.
I am going to say that it makes sense to think about what lawyers do today as we think about how we ought to train lawyers and as we think about how our system of legal services should be structured. Looking at how specialization has replaced general practice for most lawyers is one part of that.
As for practice ready, that's not going to be the way I frame the objective, for some of the reasons you identify. More on that later.
I don't understand, btw, why "Langdell's method" is a contested or uncertain concept. I think the record is pretty clear that Langdell introduced and popularized the case method and the case book as a new pedagogical method. While those have evolved substantially over time, I think Langdell's method remains identifiable and remains distinct from either the lecture method or apprenticeship. To the extent you were talking about whether Langdell actually believed in a science of law, which people tend to see as related to his method, I tend to think he did and that it is, but I understand that questions have been raised and that the evidence of his ever discussing a science of law is scanty. I also can see a contrarian argument that American law teachers or American law case books no longer really follow Langdell's method, despite all the assertions that they do, but I don't see where it's unclear or contestable that Langdell had a method that has been widely adopted and adapted.
I think this is a very perceptive big-picture view, Prof. Campbell. As to Langdell, I agree with you. On the other hand I have ever been amused — partly because the quip is portable to other persons and situations — by my professor Grant Gilmore's description of Langell (and his method) as "An essentially stupid man who, early in his life, hit on one great idea to which, thereafter, he clung with all the tenacity of genius."
Ray, I now understand you mean "Langdell's method" to mean the case method, or perhaps more specifically, learning legal doctrine by studying appellate cases. I'm just not sure why that is outdated. What about the case method presupposes some sort of 'general practice' as opposed to a specialized one? As I see it, the case method has always been about one part of learning law, the part about understanding doctrine. Whether legal practice is specialized or not is a separate question, and I'm not sure what it has to do with the merits of the case method.
In any event, I gather that you have a broader argument that you're developing step by step here, and it's probably inappropriate of me to ask questions and seek clarification before the full argument has been presented. If so, my apologies.
Orin, I really appreciate your comments and questions, so please don't hold fire. It really helps to get questions.
I'm going to want to think about your comments, and I may change what I think as a result, but let me give it a whack now.
You are right, I believe, that the case method has always been about learning to think critically and learn how to derive law from cases, rather than covering the maximum amount of doctrine. That said, and I may be wrong about this, I think it was the goal of the 19th century Harvard Law to send students out with enough coverage of doctrine to allow them to function as common law lawyers. I think that's one of the reasons they lengthened the curriculum to three years. The spread of the required first year courses across core doctrinal categories, and the kinds of electives they had back then, seem to me to be directed at giving students the body of knowledge that professional lawyers needed to do their job. That they gave something up in terms of maximum coverage to promote critical thinking does not mean that Langdell and his peers viewed "thinking" without a sufficient grounding in applicable law to be enough. The kind of practice that 'enough' was measured against was the common law practice of the day. In that era, there wasn't a lot of law, there were not yet West reporters, there weren't a lot of treatises, and lawyers were expected to carry more of the law in their heads than we would expect today. In the kinds of general practices that were common then, the full range of the curriculum could matter to a normal practice.
Sometime after that, as the sheer quantity of law exploded with the rise of the administrative state and the growth of statutory law, the idea that you could really learn enough law to practice went away. We still keep the spread of first year common law courses, although I think it's common for many lawyers in practice to feel that much of the substantive law they learned had no bearing in practice. I think – and again I could be wrong – that the first year curriculum derives from Langdell and his colleagues thought was the body of law needed for a common law lawyer, and I think we're ripe for rethinking what modern lawyers really need to know. If it's not the law – if we just teach torts and property cases to teach a mode of thinking – I think we might want to step back and ask if those are the best vehicles for that.
I think in a world of specialization there's a question about whether, at least in some specialties, you really need a base in all the common law doctrinal silos or even to think like a lawyer in order to get the job done. Certainly, tax accountants compete for tax work without a law degree. Herbert Kritzer has done empirical work looking at areas where non-lawyer specialists are allowed to compete, and found that it's not a big hurdle to learn the rules that matter to a narrow context, and that non-lawyer specialists deliver as good a service as a lawyer. In terms of structuring the legal system, we may be overeducating people who end up being technicians.
Beyond knowing law, how to find law, and how to think critically about law, there are skills and competencies that mark successful lawyers, and law schools today often neither teach nor filter for those competencies. I think some of those competencies are different from the competencies a common law lawyer would have needed, in part because the work of a specialized technician is different from that of a common law lawyer. I have some thoughts on what those competencies might be, and some thoughts on how law schools could address those in a way appropriate to academic institutions but that will take more development later.
Thanks, Ray. Two quick thoughts:
1) What's the evidence you're relying on for what the goals were of curricular reform in the 1870s at Harvard? Just looking at the Harvard Law School catalogs of the period, (which you can find here: http://pds.lib.harvard.edu/pds/view/9045568?n=2&imagesize=1200&jp2Res=.5&printThumbnails=no) the courses don't appear to have any practice component at all. They were just classes in the major areas of law, not about practice or "general practice." If you have been studying the history and there's evidence that the original curriculum was actually practice-oriented, and based on a common practice concept, then that's very interesting and certainly worth blogging about.
2) If your focus is really about whether the traditional 1L curriculum is the best background for legal study, then that's a separate question and one that is certainly debated frequently in law schools. On that topic, I would say two things. First, the 1L curriculum today has similar labels to that in Langdell's day, but I think is very very different in content. For example, criminal law today is mostly statutory; civil procedure is a mix of statutory and con law; contracts often has a large dose of the UCC. That's really different from what it was in Langdell's day. Second, I think the traditional 1L curriculum ends up being about building blocks. Contracts is the building block for courses in business law; criminal law for classes in criminal law and procedure; etc. There are certainly ways in which we could fiddle with the curriculum, but the basic idea of questioning whether the 1L curriculum needs to be updated is one that is very frequently asked and considered in law schools, I think.
Orin, on the second point, I agree. I think the modern curriculum derives from what Langdell put in place, but the coverage, the casebooks, and the classroom style often are quite different. I also agree that for quite a long while people have been thinking about how to improve the curriculum, and a lot of that thought has been both practical and insightful, and in schools high and low has led to meaningful improvements. I don't think those incremental improvements have solved the fundamental training problem, and I think there are things to think about that haven't been, so far as I can tell, enough of a part of the discussion. I do think I want to be careful about my natural tendency toward hyperbole.
On the first point I have some reading and thinking to do. Thank you for the link. Given that one of the defenses of the lecture method was that it provided students with a complete overview of the doctrine young lawyers needed to practice, I had assumed that Harvard aimed to provide, if not as much, at least enough doctrine to provide a command of the specialized professional knowledge that marked lawyers, but let me think about that as I do some more reading.
Ray,
I'd like to make one small point that is sometimes overlooked. The case method that we teach our students in the first year is not only useful for litigators. In fact, transactional lawyers need exactly those same skills. First year students learn to draw out a rule of law from a case; the professor then tests (and hopefully students learn to do the same) whether that rule works by posing a series of hypotheticals. Drafting a contract for a transaction works the same way. The lawyer comes up with a rule of law – a contract provision – that attempts to solve a problem. Smart lawyers then think of numerous hypotheticals to test whether the proposed rule of law actually works. This may be one of the reasons that successful transactional lawyers are quite often students who do well in law school.
Douglas, I think the problem is that many of the professors themselves who are teaching these first year courses frequently lack a truly nuanced understanding of how law and fact patterns interact. In retrospect, after practicing I can retrospectively see where those professors, many of whom had been teaching for decades but never seriously practiced, really didn't understand the law as it is practiced.