Monday, December 17, 2012

I've got a theory about that

The other day Scott Greenfield pointed out that law schools are failing their students. And he had the bar exam pass rates to prove it. He asked just what is being taught in law school these days.

The problem, according to Mr. Greenfield, is that the academy is out of touch. Law profs across this country are so caught up in their own esoteric research and scholarship that they have neglected to teach impressionable young minds how to be a lawyer.

There is no reason for the high failure rates when it comes to the bar exam. The problem can't be put solely at the feet of law students who have to pay to take an additional bar review course after three years of school in order to pass the test. The problem is either that the modern law school curriculum is not rigorous enough to prepare students for the exam or that law schools aren't weeding out the students who aren't cutting it (and won't cut it).

Over at Doug Berman's Sentencing Law and Policy, you can see firsthand the disconnect between the academy and the practice of law in the trenches. Richard Frase, a law prof at the University of Minnesota Law School, has just published a book called Just Sentencing: Principles and Procedures for a Workable System.

In a series of guest posts on Mr. Berman's blawg, Mr. Frase summarizes the arguments in his book. He likes to talk about sentencing theories. Such things as retributive justice, crime control and "just desserts." That is all well and good. It makes for a thick book and a heavily annotated law review article. But it bears little of no relevance to what goes on in the trenches.

No one in the criminal courthouse walks around espousing their sentencing theory. A prosecutor writes a number on the cover of the file and expects our client to accept it and thank him profusely. Now that number is generally just a starting point - and the defense attorney counters with a different number - or idea.

If we can't get the case dismissed we want the lowest number possible or a way of keeping our client out of prison. The prosecutor is bound by "office policy" and what the judge will accept. The negotiations are governed by which side has more to lose by going to trial. Instead of a book on sentencing theories, criminal defense lawyers would be much better off reading books on poker theory.

While sentencing theory might make for nice conversation at a cocktail party or a reception, it's application in real life is pretty much non-existent. Instead of being able to argue the finer points of restorative justice theory, a young attorney would be better served had he been taught how to investigate a case and how to spot weaknesses in them.

Scholarship is good, but law schools mustn't lose sight on the most important part of their mission - to teach a classroom of young men and women how to be a lawyer.

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