Rethinking law schools

Law and Social Inquiry

Volumn 21, Issue 4, 1996, Pages 1007-1016

  Twining, William ^a  

^a UNIVERSITY COLLEGE LONDON   (United Kingdom)

Author keywords

[No Author keywords available]

Indexed keywords

EID: 10144241079     PISSN: 08976546     EISSN: None     Source Type: Journal    
DOI: 10.1086/492572     Document Type: Article

References (22)

1. See, for example, John Henry Schlegel, "Talkin' Dirty: Twining's Tower and Kalman's Strange Career," 21 Law & Soc. Inquiry 981, 985 n.5. There is no significant disagreement: my account of the Realist Movement was constructed to give a context to a study of Llewellyn's ideas. Subsequent research by others, including Schlegel, has told different, equally plausible, and generally illuminating stories about the history of Realism. I have argued, like Schlegel, that Realism is not a distinctive theory of law. However, Karl Llewellyn did have such a theory, but he explicitly stated that "realism" was only one strand in his jurisprudence. The distinction between "Realism" as a historical phenomenon (involving activity as much as ideas), and "realism" as a concept not confined to the United States or a particular period is significant. I have learned enormously from Schlegel's American Legal Realism and Empirical Social Science (Chapel Hill: University of North Carolina Press, 1995) ("Schlegel, American Legal Realism") and wish it had been available before I wrote. We may tell somewhat different stories, but I find very little of substance to disagree with either historically or philosophically.
2. See, for example, John Henry Schlegel, "Talkin' Dirty: Twining's Tower and Kalman's Strange Career," 21 Law & Soc. Inquiry 981, 985 n.5. There is no significant disagreement: my account of the Realist Movement was constructed to give a context to a study of Llewellyn's ideas. Subsequent research by others, including Schlegel, has told different, equally plausible, and generally illuminating stories about the history of Realism. I have argued, like Schlegel, that Realism is not a distinctive theory of law. However, Karl Llewellyn did have such a theory, but he explicitly stated that "realism" was only one strand in his jurisprudence. The distinction between "Realism" as a historical phenomenon (involving activity as much as ideas), and "realism" as a concept not confined to the United States or a particular period is significant. I have learned enormously from Schlegel's American Legal Realism and Empirical Social Science (Chapel Hill: University of North Carolina Press, 1995) ("Schlegel, American Legal Realism") and wish it had been available before I wrote. We may tell somewhat different stories, but I find very little of substance to disagree with either historically or philosophically.
3. See, for example, John Henry Schlegel, "Talkin' Dirty: Twining's Tower and Kalman's Strange Career," 21 Law & Soc. Inquiry 981, 985 n.5. There is no significant disagreement: my account of the Realist Movement was constructed to give a context to a study of Llewellyn's ideas. Subsequent research by others, including Schlegel, has told different, equally plausible, and generally illuminating stories about the history of Realism. I have argued, like Schlegel, that Realism is not a distinctive theory of law. However, Karl Llewellyn did have such a theory, but he explicitly stated that "realism" was only one strand in his jurisprudence. The distinction between "Realism" as a historical phenomenon (involving activity as much as ideas), and "realism" as a concept not confined to the United States or a particular period is significant. I have learned enormously from Schlegel's American Legal Realism and Empirical Social Science (Chapel Hill: University of North Carolina Press, 1995) ("Schlegel, American Legal Realism") and wish it had been available before I wrote. We may tell somewhat different stories, but I find very little of substance to disagree with either historically or philosophically.
4. I shall resist the temptation to nitpick, but there is one point that warrants reply. Schlegel takes me to task for vacillating about whether there is a core to the study of law and in the end for selling out to the idea that legal doctrine is that "core" (above at 608). In fact I think my position is almost identical to his as expressed in the last paragraph, bolstered by the argument he advanced in his incisive article on the MacCrate report ("Law and Endangered Species: Is Survival Alone Cause for Celebration?" 28 Ind. L.J. 391 (1995). I would restate the argument as follows: Rules do not delimit, define, or differentiate the discipline of law, but they are indeed necessary and central to the study of law as they are in all normative disciplines (such as logic, ethics, and mathematics) and in disciplines which describe and interpret human behavior, such as anthropology, sociology, psychology, or linguistics. However, one way of looking at rules is as responses to problems, in which case rules are a poor startingpoint for study, hence my emphasis on "The Way of the Baffled Medic"-("Prescribe First, Diagnose Later, If at All"). I agree with Schlegel that the study of problems is anterior to the study of rules, that rules are only one kind of a number of responses to problems, and that "there is nothing particularly legal about problem-solving" (Schlegel, American Legal Realism 409). Like Schlegel I do not think that "the point of legal education is the justification of legal doctrine" (at 999), and I agree that there is a need "to decenter doctrine in order to look seriously at the system" (id.). Indeed, I agree with the whole tenor of his last paragraph and his article on MacCrate. However, my idea of rules is much wider than what he calls "doctrine." This may be a source of misunderstanding; and to say that something is necessary and central is different from saying that it is either sufficient or distinctive.
5. I shall resist the temptation to nitpick, but there is one point that warrants reply. Schlegel takes me to task for vacillating about whether there is a core to the study of law and in the end for selling out to the idea that legal doctrine is that "core" (above at 608). In fact I think my position is almost identical to his as expressed in the last paragraph, bolstered by the argument he advanced in his incisive article on the MacCrate report ("Law and Endangered Species: Is Survival Alone Cause for Celebration?" 28 Ind. L.J. 391 (1995). I would restate the argument as follows: Rules do not delimit, define, or differentiate the discipline of law, but they are indeed necessary and central to the study of law as they are in all normative disciplines (such as logic, ethics, and mathematics) and in disciplines which describe and interpret human behavior, such as anthropology, sociology, psychology, or linguistics. However, one way of looking at rules is as responses to problems, in which case rules are a poor startingpoint for study, hence my emphasis on "The Way of the Baffled Medic"-("Prescribe First, Diagnose Later, If at All"). I agree with Schlegel that the study of problems is anterior to the study of rules, that rules are only one kind of a number of responses to problems, and that "there is nothing particularly legal about problem-solving" (Schlegel, American Legal Realism 409). Like Schlegel I do not think that "the point of legal education is the justification of legal doctrine" (at 999), and I agree that there is a need "to decenter doctrine in order to look seriously at the system" (id.). Indeed, I agree with the whole tenor of his last paragraph and his article on MacCrate. However, my idea of rules is much wider than what he calls "doctrine." This may be a source of misunderstanding; and to say that something is necessary and central is different from saying that it is either sufficient or distinctive.
6. Schlegel treats the chapter on the law library (ch. 5) as of little interest for his purposes. However, part of the point of that chapter was to treat the law library as a symbol or symptom of the ways in which academic law deals selectively with only parts of legal life. It explores the wide range of materials relating to law that are absent from or underrepresented in English law libraries, including accounts of famous trials, journalistic works, legal novels and plays, and original documents such as wills, contracts, and leases. A similar point is developed in William Twining & Emma Quick, eds., Legal Records in the Commonwealth (Aldershot: Dartmouth Publishing Co., 1994), in relation to archivists' narrow conception of "legal records," which in many countries has traditionally been confined almost entirely to court records and land registry records. American law libraries may be less vulnerable to strong versions of this criticism, but the emphasis on appellate courts and the upper reaches of the system is well documented. The general criticism is that the institutionalized discipline of law deals with only parts of lawyers' action and even a smaller proportion of the broader notion of "the law in action."
7. This theme is further developed in my "What Are Law Schools for?" Law in Context: Enlarging a Disdpline ch. 15 (Oxford: Oxford University Press, forthcoming 1997) ("Twining, 'What Are Law Schools for?'"). This is a book of essays, some of which complement or gloss Blackstone's Tower.
8. This theme is further developed in my "What Are Law Schools for?" Law in Context: Enlarging a Disdpline ch. 15 (Oxford: Oxford University Press, forthcoming 1997) ("Twining, 'What Are Law Schools for?'"). This is a book of essays, some of which complement or gloss Blackstone's Tower.
9. The Lord Chancellor's Advisory Committee on Legal Education and Conduct (AC-LEC) has emphasized repeatedly that the vocational stage should involve more depth and intellectual rigor than in the past: "We see intellectual rigour as a requirement of all elements of legal education and training." First Report on Legal Education and Training 23 n.3 (London, 1996) ("ACLEC, First Report"). This is likely to be one point of controversy in debates on the report.
10. The Lord Chancellor's Advisory Committee on Legal Education and Conduct (AC-LEC) has emphasized repeatedly that the vocational stage should involve more depth and intellectual rigor than in the past: "We see intellectual rigour as a requirement of all elements of legal education and training." First Report on Legal Education and Training 23 n.3 (London, 1996) ("ACLEC, First Report"). This is likely to be one point of controversy in debates on the report.
11. In one institution it was recently discovered that 60% of faculty teaching time was being invested in teaching postgraduates who at that stage constituted 40% of "the student load." This was thought to be disproportionate, but the reason for its occurrence is significant: faculty found more outlets for their interests at postgraduate level.
12. Cf. his notes 7 and 8, which suggest that I ignore the Continental European model exemplified by Leiden and Milan with their huge intakes of first-year undergraduate students. Whilst the phenomenon of mass undergraduate legal education is not particularly appealing, in my experience the fourth- and fifth-year, maitrise, and other postgraduate programs in many Continental European universities have much to commend them.
13. Similarly, the economic problems of our law schools and law students is rightly causing concern (see ACLEC, First Report), but in spite of this, academic law in England is livelier and more diverse than it ever was. This can in part be credited to selective borrowing of American ideas, but other factors are involved, including, expansion, membership of the European Union and of the Commonwealth, and the advantages of living in a small country.
14. This was written before I heard Richard Lempert do a brilliant deconstruction of the U.S. News & World Report methodology at the Law and Society Conference in Glasgow in July 1996. His critique was from the point of view of a social scientist but within the framework of assumptions of the professional primary school model.
15. "Informal" in this context includes matters learned from first-hand experience (e.g., getting married, being arrested, negotiating a loan, entering into a contract), from newspapers, television, novels, and other popular media, from first-hand observation, from barroom conversation, and from gossip. A fascinating chapter on "Legal Miseducation" deals at length with the influence of the media in purveying inaccurate, misleading, or sensationalized information and of the portrayal of foreign practices that have no local relevance (such as depictions on local television of atypical American courtroom scenes either live, as in the O. J. Simpson case, or in fictional form). Institutionalized apprenticeship, however casual, organized work experience placements or "stages," public lectures, law in schools, moot competitions, and even bibulous events that are part of continuing professional development are treated in the report as "formal."
16. Legal Education in Xanadu is still classified as "secret"; accordingly, citation according to Blue Book directives is prohibited.
17. The report assigns a key leadership role to university law schools in the total system of legal education in training of law teachers, mentoring other institutions and programs, and generally stimulating imaginative and appropriate approaches to legal education for nonlawyers.
18. For further leaks from the report see Twining, "What Are Law Schools for?" (cited in note 4).
19. See, however, Robert Stevens, Law School (Chapel Hill: University of North Carolina Press, 1983), passim, e.g., 63, 71-72.
20. See ACLEC, First Report ch. 3 (cited in note 5); R. Dhavan, N. Kibble, & W. Twining, eds., Access to Legal Education and the Legal Profession 10-13, 281-86 (London: Butterworths, 1989).
21. See ACLEC, First Report ch. 3 (cited in note 5); R. Dhavan, N. Kibble, & W. Twining, eds., Access to Legal Education and the Legal Profession 10-13, 281-86 (London: Butterworths, 1989).
22. One recent example, among many, is Mary Ann Glendon, A Nation under Lawyers ch. 10 (New York: Farrar, Straus & Giroux, 1994).