When I was at law school we were often explicitly told that the professor would not teach us the “black letter” law, for we were told that we were intelligent enough to find it and understand it ourselves. Rather, she would instead attempt to stretch our understandings and skills across the field – perhaps using content as the backdrop.
This did not mean we were not tested on the content come exam time. Similarly, we all knew that the Bar Exam waiting beyond the gates of the law school would also not let us just spin deep thoughts for answers. But, our professors seemed to be correct in that last minute reading of the substantive content usually sufficed quite well in the exams – and even in the Bar Exam (admittedly that last minute was across many months – filling the massive gaps in our substantive knowledge – e.g., I never studied commercial law or criminal procedure prior to the bar prep course).
But what about post law school? We did not really know what to expect from practice, but most of us found that once in practice, the work we most enjoyed and sought out was that for which there were no clear substantive law or answers. Finding the law was consigned to summer clerks/associates and to the paralegals. Once again, substantive content seemed not to be an important factor. Certainly, where it was the clients would not pay five hundred dollars an hour.
Of course, many readers will have early into this post criticized it as a reflection of an elite and privileged educational and practice background, not applicable to most law students or practitioners. That critique may have been true at one time. Though I would argue it was not entirely true even in the past.
BUT, I wonder if today the critique still has any validity. Content is today easily and instantly available from ever more sophisticated search algorithms (e.g. Google), devices (I-Phones) or from off-shore legal service providers (e.g. in India). True, knowing to ask a question, what that question should be and then how to structure the question may need some substantive context, but even then it is less critical than it used to be and may itself be derived from general inquiries. Furthermore, with law increasingly dynamic, today’s substantive content is tomorrow’s overruled law (by statute, regulations or judicial decision).
One may argue that the above is more applicable to the more/most sophisticated and complex aspects of our field than to perhaps the ordinary run-of-the-mill parts of practice (I do not use the word mundane, for the work can be both interesting and critical to society). Thus, when a family comes in to create a will, the solicitor should know the basics of will drafting (and tax). But, after doing one or two of those wills (or before, but in preparation for that sort of business) the intelligent solicitor will know the necessary content. Similarly, the barrister arguing in court must know the rules of evidence, but for an intelligent barrister that should not take long. In other words, intelligent practitioners will quickly and easily pick up the substantive law needed. So, once again, content is not a major part of the value added by the intelligent practitioner.
If the above is correct, then should there be a major rethink of the role of content in legal education? Many have already argued for less content, with greater focus on skills training and deeper analysis of the background of the content (socio-legal etc). But, should those moves go even further? Should content be relegated to a more consistent secondary or tertiary role in legal education – useful mainly for examples or testing the skills or analysis of the students? And especially for elite law schools, where the abilities of the students should be both taken for granted and respected?
Is content dead or dying? And not just for the elite or sophisticated practice? But for all?
By Colin Picker