The End of Content? For All?

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

Advertisements

7 thoughts on “The End of Content? For All?

  1. Alex Steel says:

    It’s all content. Whether it’s a Marxist critique of Locke, the intricacies of fees in tail, the joys of tax imputation, three hours of how to do internet searches for case-law, or how to write a job CV – its all content. How deeply the students have to engage with it, and build some sort of neural pathway to be able to work it out again in five years times varies wildly.
    I think we might be discussing the amount of detail necessary to achieve a learning outcome. And I think the answer there depends on the learning outcome. There’s some pretty fair criticisms that can be made over the mismatch between the two in some visions of legal education. But I think detailed examination of hard legal doctrines, and statutory formulations (with their rules of interpretation) on a repeated basis through a curriculum does give a graduate a critical thinking edge that overviews and ignored lectures don’t.

    Like

  2. Lyria Bennett Moses says:

    My two cents. The word “content” can perhaps be divided into what I would call structural/fundamental content and what I would call “Halsbury’s” content. The latter is stuff that you can find in less than 10 minutes with Halsbury’s or Google or what have you. So the difference between the required content of a mortgagee default notice and the nature of a mortgage (say). I think only the former should be included in teaching, with the latter referenced in a footnote somewhere in the readings (or at least where to find it). Trying to focus on skills without a content focus is also unhelpful (my opinion) outside confined contexts.

    Like

  3. The practice of law is in the process of being dis-aggregated, and the pieces are being shopped to the lowest-cost providers. The rote aspects of practice now can be done online, and algorithms are getting more adept — and capturing more market share — by the day. The highest-end work — and the work least easily outsourced — is problem solving when there are no clear answers.

    Like

  4. I am not suggesting content-free teaching, but rather the further diminishment of content – so that, among other things, curriculum arguments based around “covering the content” begin to recede.

    As an aside – while we did not actually learn much content, in my Trusts & Estates class (an elective I only picked based on the quality of professor – John Langbein) we did actually draft some wills. It was fun, but the primary lesson we learned was, I think, about identifying contingencies.

    Like

    • Prue vines says:

      I know you are not arguing for a content free zone. And I agree that it isn’t just about sucking up information. What I think we need to do is have ways of working out which content really should be taught and which content we can safely leave to students to work out for themselves. I think this is why in torts we don’t bother with occupational health and safety law because it is largely statutory and fairly simple; but we do wrestle with vicarious liability and non-delegable duty etc because those are harder and if we leave it to people to teach themselves they will get it wrong and cause harm. When we have worked out how to free up some space by dividing the content up that way then we can do some really great work on thinking, analysis, criticism etc

      Like

      • Your good points raises for me the issue of the difference between legal concepts and legal substantive content. It seems to me that concepts are a subset of content, the essential subset that must be taught. Vicarious liability would seem to me to be such a concept. Perhaps it is that courses need to be stripped down to the basic and essential concepts and the remainder of the time spent working on analysis and skills. Maybe that is what you have already done in Torts. But, I fear many law courses taught around the world spend an inordinate time teaching the non-essential content and worrying about coverage of that material – to the detriment of the more important teaching of analysis and skills. And worse yet – those courses teach the students that learning the law is about learning non-essential substantive content.

        Like

  5. Prue vines says:

    Dear Colin,

    Possibly predictably, I have to disagree with your characterisation of writing a will, especially as most law students never do it and we now find lawyers in the profession creating time bombs in wills all over the place. This is because the doctrinal content of the law of wills ( common law, legislation, equity, canon law) is extremely complex and not very forgiving – you can’t work on principle; you have to apply the rules, and if you get it wrong, your client does not get the outcome they instructed you to achieve.

    So I think this is a good example of what is wrong with the view of the lecturer. Doctrinal content can be easy to learn by yourself or hard to learn by yourself, not matter how clever you are. Some doctrines are easy to learn; others have everyone, students, academics, judges all wrestling with them trying to work them out. A lecturer should facilitate the learning of the content and hopefully develop students’ understanding of not just the bare bones of it, but also the nuances and subtlties that make the difference between a decent argument and a rich and profound and compelling one. And yes, then we also have to talk about the relationship between this and justice, society etc etc.

    IF we allow teaching to be content free we will really run into trouble, As I am fond of saying, humans are like water – they run down to the lowest point unless you stop them . We need to be the dams that stop them. At the time they are often irritated by being challenged and pushed, but they also often afterwards are pleased that it happened!

    Like

Leave a comment on this post

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out / Change )

Twitter picture

You are commenting using your Twitter account. Log Out / Change )

Facebook photo

You are commenting using your Facebook account. Log Out / Change )

Google+ photo

You are commenting using your Google+ account. Log Out / Change )

Connecting to %s