Law schools' focus on case-law makes the law & lawyers elitist, undemocratic, bad at their most important job
Larry Gaughan, an elder statesman of family law and mediation in Northern Virginia, recently reflected on the legal profession's excessive focus on case-law, and the attitude that law isn't real until it has been applied in a published appeals court case. Besides the way it poisons lawyers' ability to help their clients, which he so eloquently illustrates, I think there's even more:
- It makes young lawyers ridiculously elitist and contentious -- they model themselves on bow-tied Supreme Court Justices hurling pompous insults at each other and at the people involved in their cases, and not on real lawyers working in the trial courts, lawyers who work to resolve disputes before they become trials, and lawyers who try to draft contracts and statutes so well that people won't even have legal disputes about them, and won't have to go to lawyers to know what they mean.
- It's anti-democratic: As Larry points out, major new legislation in our field -- even something as basic as letting divorce courts divide property -- is often not understood, and not really recognized, until there is case law saying what it means. And Virginia's appeals courts sometimes take the attitude that revising the details of divorce-related law is only their business, and when the legislature tries to meddle in it or to undo the effects of an appeals court decision, they seem to do their best to frustrate the legislature's aims or use the new statutes to reach absurd and unintended results, as if to say, 'see what a mess you make when you meddle in the affairs of divorce courts!' In Constitutional law, the Third Amendment and, until recent decades, the Second Amendment, are often described as a dead letter because there were no court case opinions 'making them real.'
"In 1890 American law schools began to switch to the study of appellate cases as the primary means of legal education. ... Given that so few law graduates now wind up as litigators, that approach makes less sense with every passing year. Almost by its very nature, the case system teaches us to look backwards and to think of law as litigation. ...
"The case system made more sense when most law graduates wound up as lawyers whose practices included litigation. Even [for them], law schools were not great in teaching statutory interpretation. I remember vividly the problems many Virginia lawyers had in figuring out how to interpret the new equitable distribution statute as first enacted in 1982. To many lawyers, the new statute really only started to have meaning after the appellate cases started to come into play. ...
"We must recognize that most legal disputes are not resolved by courts, that statutes have meaning even before courts interpret them, and that more law school graduates will pursue careers that require some knowledge of the legal framework, but also the ability to quickly learn and assimilate other kinds of expertise."
Like most lawyers, I have good and bad recollections of my own legal education. I remember the popular law professor who taught commercial law courses, and the skepticism about another professor who taught criminal procedure. The former taught us “the law” from uniform statues that were already in the process of major revisions. The latter was a theorist whose courses accurately predicted every one of the major reforms of the Warren court.
-- Mediator and lawyer Larry Gaughan in "An Improper Focus for Legal Education", The Divorce Agreement Newsletter, No. 53 – July 6, 2016