BOOK REVIEWS
Introduction to the Study of Law, by E. WAYNE THODE, LEON LEBOWITZ, and LESTER J. MAZOR. Mineola, New York: The Foundation
Press, Inc., 1970. Pp. xxi, 357. $8.00.
Introduction to the Study of Law is designed as orientation materials to
be used by beginning law students during their first week of classes. Although the idea of a short orientation program for incoming law students
is not novel, Introduction is a refreshing approach to the problem of
acquainting the new students with the processes involved in the study of
law. The question of how well Introduction fills a need is best answered
by noting that, despite its late publication date, a number of schools
elected to use it during the fall of 1970/ and those with whom the reviewer has corresponded are enthusiastic about it. If the book fills a real
need, then the only questions remaining are how well it does so, and how
painful is the process for the student, the instructor, and the administrator.
Although Introduction resembles a case book for a substantive law
course, it contains relatively few cases in proportion to the amount of
textual material; enough to acquaint the student with the case book
method, yet few enough to allow him to get a feel of a particular problem. 2
The authors quite successfully pursue three objectives in the book: (1) to
give the student a better understanding of the legal profession and its role
in society; (2) to give the student an understanding of the approach to be
taken in the study of law; and (3) to enlighten the student on the goals
and methods of a legal education.
The first three chapters of the book are entirely textual, and rely quite
heavily on outstanding legal scholars to explore such diverse topics as the
case method, the lawyer'S role in society, the anatomy of a lawsuit, and
the secrets of successful law study. The material on the anatomy of a
lawsuit is especially helpful in giving the beginning student an overall
view of our adversary system of litigation. Chapter 4 is designed to enable
the student to become proficient in the briefing and synthesis of cases. The
cases in this chapter focus upon jurisdictional problems. In addition to
giving the student an understanding of the importance of jurisdiction to
our court systems, this selection of procedural cases eliminates the problems encountered in using cases from substantive law fields which either
1 Although the book was not available until July of 1970, 11 schools used the book
in the fall of that year.
, Several legal educators have suggested that orientation programs should be designed to frighten the timid into timely withdrawal from law school, preferably early
enough for the student to enroll in another field of study. This is not the authors' purpose. By limitip.g the number of cases, students have sufficient time to dominate the
material. This reinforces rather than undermines their confidence in their ability to
master the study of law.
Franklin, in his Biography of a Legal Dispute, elects to use the record of a single
case, unsupplemented by other cases, to accomplish much the same purpose. M. FRANKLIN, THE DYNAMICS OF AMERICAN LAW (1968). But the selection of several related
cases in Introduction to the Study of Law appears to have an advantage insofar as it
allows the instructor an opportunity to comment on briefing techniques.
686
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infringe upon an area that can be taught more effectively in a substantive
course, or jump from one area of substantive law to another, thereby
merely adding to the student's confusion.
Chapter 5 contains the complete record in Jekel v. Fireman's Fund
Insurance Company.3 The record covers about one-third of the book and
is intended to acquaint the student with legal terms and forms as they are
encountered in addition to making the student aware of some of the complexities of a lawsuit. The Jekel case has the added advantage of focusing
on a workman's compensation problem - an area with which very few
students are familiar. Thus, the choice of a procedural problem from the
field of modem legislation seems to be a good one. It was apparent, however, that there was a tendency on the part of the students, particularly
in terms of a first reading, to skim the record rather than analyze each
step involved in the case. Nevertheless, the record proved to be an excellent vehicle for class discussion. The concluding chapter contains a brief
discussion on synthesis and review for law school examinations. In short,
the authors effectively offer the new student a wealth of information and
skills designed to enable the student to proceed smoothly into the regular
law school curriculum.
Introduction to the Study of Law was used in a one week orientation
course in which the reviewer was involved this past fall at Texas· Tech
University School of Law. Of the 71 students responding to the question,
"Was the book useful from an orientation standpoint?", 58 indicated it
had been. The major complaint was the expenditure of $8.00 for a book
to be used for only one week. Conversations with students indicated no
objection to its length - a surprising reaction from first semester students
unaccustomed to law school reading assignments. To the reviewer's surprise, the two areas of the book which attracted the most student interest
were the portions on jurisdiction and professional responsibility.
From an instructor's standpoint, all who participated in offering the
classes felt that there was considerable advantage in utilizing the book.
From an administrative viewpoint, the book alleviates the necessity of
duplicating diverse and often overlapping materials frequently employed
by faculty members as part of an orientation program.4 One difficulty
encountered in using the book arose from the adoption of the team teaching method for the orientation course. It was difficult to allocate specific
sections of the text to instructors responsible for specific topics. Because
of this problem, the reviewer would prefer having one instructor guide a
section of the entering class through the entire book.
Introduction to the Study of Law provides law schools with an attractively packaged orientation program. It effectively fills a real need for students, instructors, and administrators. Hopefully, the next decade will see
the greater use by law schools of more books that are designed for less than
3214 F. Supp. 27 (W.D. Tex.), rev'd 318 F.2d 321 (5th Gir. 1963).
• The book was not intended to be used in a semester-long course, and it is doubtful
if the book would be as effective in such a course.
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a full semester's use. It is a refreshing break in the trend toward lengthy
course offerings which offer little flexibility in the law school curriculum.
JUSTIN
C.
SMITH
Associate Dean and Professor of Law
Texas Tech University, School of Law
Clinical Education and the Law School of the Future: Law students
in court. The Conference on Law Students in Court, Oct. 31 & Nov. 2,
1969, at the University of Chicago. EDMOND W. KITCH, Ed. Chicago:
University of Chicago Law School, 1970. Pp.265. $2.50 (Paperbound).
Because this reviewer is neither disinterested in nor dispassionate toward
the subject matter of this book, it is probably only fair that he indicate
at the outset, his pertinent passions and prejudices:
(1) The reviewer is one of those strange new animals called "clinical
professors of law."
(2) He teaches at a state university which is geographically remote
from the major population centers of the United States - although Salt
Lake City is large enough to present most of the current urban problems
affecting law schools.
(3) His views on legal education have been significantly influenced
by his fellow faculty members who are collectively committed to the general proposition that law teaching methods can and should be substantially modified to achieve certain educational objectives deemed vital to
an adequate legal education.
(4) The reviewer attended the conference from which the book
emerged and has recently attended a similar conference in Los Angeles on
clinical education and curriculum reform. Sadly, the latter conference
produced very little new thinking about clinical education and even less
about curriculum reform. Consequently, the book under review is not
entirely responsible for the feelings of frustration that foster this book
review.
One of the difficulties with the book is succinctly expressed in its subtitle, "Law students in court," which was also used in the brochures sent
out prior to the conference. This is a rather narrow category of clinical
activity. Yet much of the conference, as reflected in the book, seemed to
assume that clinical education simply (or at least primarily) means "law
students in court." Neither Professor Kitch nor anyone in the book
attempts to describe "the law school of the future." If that were an adequate definition of clinical education, the reviewer would not be interested
in being a clinical law teacher, nor would his faculty have created such a
position.
The main title of the book points to another difficulty. It is taken from
Professor Kitch's introductory essay, which opens with the question: "Will
clinical education occupy a significant place in the law school of the
future?" If one is unable to conceptualize the law school of the f1!ture,
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how can one possibly say intelligently whether clinical education will
occupy a significant place in it?
In answer to Professor Kitch's question, the reviewer would first pose
another question: What is likely to be the primary function[s] of the law
school of the future? The answer to that question presumably involves an
extrapolation from past and present legal education. It appears from the
questions he poses concerning clinical education that Professor Kitch's
view of the function of legal education lacks any significant, goal-oriented
analysis. He asserts that the central argument for clinical education in
law schools is contained in the rhetorical question: "How can law schools
prepare men for the practice of law without exposing them to that practice?" Professor Kitch refutes his "central argument" by exposing its
false premise: "that law schools prepare men to enter, unassisted, the
full-fledged practice of law." (Emphasis added). As Professor Kitch
validly observes, "[T]he premise of contemporary legal education has been
the reverse: that graduates of law schools become fully capable members
of the profession only through experience obtained after beginning practice." (Emphasis added). The lack of goal-oriented analysis of legal
education inheres in Professor Kitch's conclusion that "the argument for
clinical education is really part of a larger question which has been with
the profession for a long time: What formal training should be provided
to assist young lawyers to cross the gap between classroom instruction and
the actual practice of law?" (Emphasis added). That statement contains a tacit assumption that legal education may properly be equated
with classroom instruction.
Unless one is willing to examine critically our current law curricula,
there is little profit in discussing clinical education. A common disinclination to question the relevance or value of existing curricula is exemplified
in Professor Kitch's suggestion that the main value of clinical education
may be "to assist young lawyers to cross the gap between classroom instruction and the actual practice of law." While equating legal education with
classroom instruction has a substantial basis in fact, when one looks candidly at what is being done most of the time in most law schools today,
clearly there are other ways to impart legal education. The reviewer does
not mean to suggest that Professor KitcJ:1 is ignorant of alternative teaching-learning methods; to the contrary, Professor Kitch's essay explicitly
criticizes those who attack the case method of teaching as if it were the
only method in use, when in fact there are "other equally important educational ideas lying behind the organization of the contemporary law
school." The point the reviewer would make is that while every law
teacher is aware of alternatives to the predominant case method, very few
(and none in the book under review) are interested in evaluating the
effectiveness of the teaching methods we have all been accustomed to
using. For example, in commenting on Ralph Nader's assault on teaching techniques at Harvard Law School, Professor Kitch blandly states
that "[f]or many years the law curriculum appears to have been reason-
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ably successful." From whose standpoint? By what standards? Does
saying make it so?
Can anyone state precisely what it is that we have been "reasonably
successful" in doing? One thing we have apparently not been doing very
effectively is bolstering the self-esteem of law teachers. Professor Kitch
informs us of a halcyon period during the first half of the century, when
"American law teachers were confident of their pedagogic task." Small
wonder, where that task was merely "to transmit to students the body of
experience incorporated in the body of Anglo-American law about the
problems those students would face in the practice of law." In any event,
we may well mourn the passing of a time when "[l]aw teachers saw the
law as a rich body of experience capable of offering important insights sometimes, in their enthusiasm, they spoke of 'scientific principles' - on
important, fundamental problems."
All that is now gone, of course. Professor Kitch tells us that "[t]he
contemporary law teacher has lost his faith in this vision." Why? It
seems that some "contemporary American lawyers" entered the Garden
and successfully tempted the pristine law teachers with an exotic goodie
called "Neo-Realism." According to Professor Kitch, "[t]he central
reason for the collapse of faith in the role of the commentator-criticteacher in the law stems, in my view, from the implicit, seldom articulated
jurisprudence of many contemporary American lawyers. I label this jurisprudence Neo-Realism." Professor Kitch believes that Nee-Realism "challenges the significance of the traditional activities of law teachers and
indeed of the bar itself." He describes Neo-Realism as a three-fold proposition: (1) law is not a cultural but a behavioral phenomenon; (2)
opinions are at best rationalizations for decisions reached on other grounds
than the stated reasons; and (3) the successful practice of law is the art of
winning what one's client wants in controverted matters.
It may come as a shock to many contemporary American lawyers that
their implicit, seldom-articulated jurisprudence has gripped the minds of
law professors with such destructive force. Perhaps the reviewer is
acquainted with an especially skewed sample, but it has been his experience that law professors tend to view with skepticism (if not dO"wnright
disgust) the practicing bar's concept of jurisprudence.
Bar committees on the unauthorized practice of law will certainly be
interested to learn that "[s]ince the cultural conventions of the law do not
control the outcome of cases, the lawyer has no special competence in
counselling and planning, because knowledge of the legal culture carries
with it no special predictive power." For those many contemporary
American lawyers who celebrate the mystery of the Neo-Realistic trinity,
the only moral thing to do is to refund a whole lot of legal fees.
As for law teachers, Professor Kitch tells us that "Neo-Realism has
important consequences for the contemporary law school." For one thing,
"[t]he emphasis on the social science approach causes law teachers ...
to lose faith in their own ability to offer insight and understanding about
the law." (Why? Because "the typical American law teacher" is not a
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social scientist.) Even worse, "[c]ombined with the cynicism about judicial opinions, this sense of inadequacy gives the case method of instruction
a dominately [sic] negative cast." (Why? "The cases offer no wisdom.
The point is to show how silly the judge was ....") Is it surprising, then,
that "[t]he law teacher no longer attempts the harder job of offering a
positive synthesis of the material- as Langdell and his successors so
clearly did"? With the dark shadow of Neo-Realism hovering over us,
who would care to dispute the statement that "Neo-Realism denies pride
in the professional craft because the test of excellence is winning"? And
yet can we not at least revel in winning? No. Professor Kitch brings us
sharply back to reality: "But winning can quickly become a hollow game,
and frustrated lawyers now demand that winning be given meaning by
being for the 'right side.''' Things have indeed come to a pretty pass
when American lawyers have so lost their faith that they begin to care
about whose side they're on! And "[t]hus Ralph Nader, pied-piper like,
leads eager law students ... on behalf of causes he deems right." Keeping
track of the evil consequences of Neo-Realism is roughly like reading a
suicide note written on a mobius strip.
By now it should be abundantly clear to the reader that the reviewer
has some misgivings about Neo-Realism. No, let us speak frankly. NeoRealism is nonsense. The only reason the reviewer has spent so much time
with it is perhaps because of an irrational fear that Professor Kitch's general reputation for rationality may lure some unsuspecting reader into
giving credence to Neo-Realism. That would be unfortunate because
Professor Kitch tells us that "Neo-Realism is receptive to the idea of
clinical education." Rapt in a Neo-Realistic vision, Professor Kitch gives
us the following perspective on clinical education:
Instead of looking fonvard to a life as little more than a research
assistant to the social scientist, the true student of the law, the law
teacher has a new activity, uniquely his own. Since the art of practice
is winning, and winning is done by winning, the students can be exposed to the heart of the matter immediately. And even more exciting,
the clinical programs can be structured to represent virtuous clientsmost often the poor. Little worry that the programs may inflict on
others -landlords and corporations - frivolous, complex litigation
which would not be brought if it were not being conducted for the
education and sometimes even the entertainment of law students.
Professor Kitch hastens to add that his picture is "overdrawn," a "caricature." Agreed. Then why engage in such gross distortions?
Professor Kitch feels it is necessary to point out the dangers inherent in
involving law faculty and students in real problems under circumstances
where they will necessarily have to commit themselves to one side of a
dispute. Yet Professor Kitch disapproves of two proposals for clinical
activity - a study of water pollution at Lake Tahoe, and a task force
investigation of a public policy or agency - on the ground that "[t]hese
are not lawyer tasks, whatever their social importance, as they involve at
best a highly tenuous relationship between the student and any identifiable
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client." The reviewer thinks that Professor Kitch's concern is entirely
misplaced. If one considers what "lawyer tasks" have traditionally been,
there is nothing more lawyerlike than assuming an advocate's role on one
side of a real dispute. If one considers that lawyers of the future may
increasingly assume roles in which the lawyer does not act primarily on
behalf of any identifiable client, it is simply not true that the two proposals do not involve "lawyer tasks." In fact, lawyers are presently engaged in pollution studies and agency investigations. It seems that "lawyer tasks" should comprehend what lawyers actually do. And if what
lawyers are actually doing is broader than a law professor's notion of
"lawyer tasks," it is possible that the law professor needs to re-examine
his own function.
Professor Kitch states that "clinical education has become a broad and
loosely. defined concept seen as responsive to many of the frustrations of
the contemporary law school." The reviewer agrees - but for quite different reasons than those which Professor Kitch apparently has in mind.
Professor Kitch seems to feel that clinical education is presently responsive
to a felt need on the part of academicians to be in "contact with real
problems in the interest of 'right'," to be in "harmony with Neo-Realism"
- or, in popular jargon, to be where it's at. The reviewer sees clinical
education as responsive to a different kind of frustration: a sharp discontent on the part of law teachers and students with law curricula which
remain (despite the criticism of Professor Meyers in his 1968 A.A.L.S.
Curriculum Report) inexcusably redundant in terms of teaching method.
It is true, as Professor Kitch points out, that law teachers utilize
various teaching methods "such as the lecture method or the problem
method." However, it is also true that most courses in most law schools
are taught by the case method. While the case method certainly "varies
widely in practice," Professor Kitch properly observes that its "common
theme is that it involves the teaching of students in fairly large classes by
a single teacher drawing on material supposedly read in advance of class."
It strikes the reviewer as being very nearly a criminal violation of the
thirteenth amendment to require graduate-level students to submit to
three years of confinement on those terms.
The reviewer cannot agree that Professor Meyers' criticism of prevailing law curricula is effectively answered by Professor Kitch's comment
that the criticism "sounds very much like bad teaching - narrow, dogmatic, and unproductive." No matter how brilliant the professor may be,
the case method has certain irreducible deficiencies: it is an inefficient
method of transmitting knowledge; it seldom permits the professor to
ascertain whether individual students are grasping the concepts sought to
be developed (and not infrequently fails to realistically inform the professor of the general progress of the class) ; it ignores the fact that different
people may learn the same thing in different ways and at different rates;
and it rarely involves students in the kind of careful, sustained, in-depth
analysis of a problem that the reviewer believes is essential to an adequate
legal education. All of these shortcomings have been well-known to law
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professors and students for many years. That, in the reviewer's opinion,
is the most frustrating aspect of legal education: law faculties have failed
to act rationally to implement reforms which they know should be made
and which they know how to accomplish. In light of this paralysis of the
will, it is understandable (if ironic) that the most prized educational
experience in law schools to date is provided by our law reviews - where
our brightest students are freed to teach themselves and each other, with
minimal intervention by law professors.
Teachers are not superfluous after the first year of law school. An adequate legal education should develop in each graduate a modicum of
knowledge, skills, and attitudes. Beyond this, no single law professor or
law faculty is likely to succeed in precisely delineating functions or goals
for all schools. It should be recognized that all institutions are not alike
- there are, for example, legitimate distinctions between state-supported
institutions and private ones. However, when a goal-oriented, functional
analysis of legal education is made with reference to any particular law
curriculum, the reviewer believes that the result will always be highly
useful in making an intelligent allocation of scarce teaching resources.
(Even if a law school's educational goal is as narrowly conceived as one
of producing a potentially successful Wall Street lawyer, few law schools
have ample teaching resources to do that job effectively in three years) .
Professor Kitch states that "[t]he objectives served by clinical education
fall in four categories: skills training, provision of legal service, education
about the society, and the development of professional responsibility." At
the risk of sounding like a YSA pamphleteer, the reviewer suggests that
Professor Kitch is not using a correct analysis. If one attempts to rationalize many of the clinical programs which law schools have recently engrafted onto their existing curricula, one may well arrive at Professor
Kitch's statement of "objectives." On the other hand, if one starts with a
statement of objectives of legal education and then attempts to assess the
relative merits of the clinical method against alternative methods of reaching those objectives, quite a different result is reached. For example, in
terms of educational objectives, there is no reason even to talk about
"provision of legal service." If it is useful in teaching students to employ
the clinical method with real clients, then legal services will necessarily
be provided. However, that is an incidental result rather than an objective. Of course, the provision of legal services to needy clients might be
justified educationally in terms of the development of professional responsibility on the part of the students providing the services, but that is
another matter.
In the concluding paragraph of his essay, Professor Kitch states that
"for those involved in the process of decision making about clinical education, the issues of the moment are credit for students and faculty status
for clinical teachers." (Emphasis added). The reviewer agrees that those
matters are worthy of consideration, but it is patently absurd to suggest
that "credit for students" and "faculty status for clinical teachers" are
"the issues of the moment." If those matters are uppermost in the minds
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of faculties concerned with curriculum revision, legal education is in much
worse shape than the reviewer had thought.
Another contributor to the book, Professor Stolz, approaches the subject in terms of clinical method, rather than clinical programs. Mter
noting that "skills training seems now to be a dominant function of legal
education," Professor Stolz concludes that "thinking about what lawyers
do rather than what the law is or ought to be has led legal education back
to thinking about clinical education in a somewhat more favorable light."
To. that conclusion Professor Stolz adds a final caveat concerning the
ethical implications of recognizing attitudinal development as an educational objective:
Perhaps including clinical exposure in legal education will improve the
law school's capacity to reach the deeper motivations of its students and
thus to influence their careers. Probably that is the hardest thing for
institutionalized education to accomplish, and one of the riskiest for it
to attempt self-consciously. Somehow there has emerged an ethic of the
profession, by no means universally honored, but nonetheless a widelyshared tradition of independence, courage and honesty. Nobody
planned that fragile conception, at best a rudimentary code of behavior,
no one can be sure what will happen if we attempt to build on to it
such things as dedication to the cause of racial equality or the elimination of poverty.
The reviewer agrees that we all ought ceaselessly to minimize the
natural tendency of teachers to exploit their dominant relationship to students by forcing their value judgments upon the students. Behavior modification is a scary business. Nevertheless, we have traditionally engaged in
a variety of teaching techniques well calculated to change the behavior
of law students, and it is difficult to see how matters are going to be made
worse by becoming self-conscious about it or by employing a technique
which may (although it certainly need not) bring students into direct
contact with problems of race and poverty.
With regard to the interests of students, the reviewer was impressed
by what the student contributors had to say about the conference. In a
paper entitled Report of the Student Participants, the authors opened
their discussion with the observation that "[w]hile the faculty and administrators participating in the Conference addressed themselves almost
without exception to discussion of the question of whether clinical education in law school was a useful undertaking, students present had
crossed that threshold, and were ready to consider the question how clinical experience could be improved, expanded, and tied in even more closely
with both classroom learning and society." The reviewer shared their
impatience at the general failure of the conference participants to get
beyond the preliminary question of whether clinical legal education is
useful (an impatience which was escalated into near rage at the recent
conference in Los Angeles where, a year after the Chicago conference,
closing sessions of the proceedings were devoted to such questions as: Is
clinical education really possible?) Among a number of cogent comments
made by the students, the reviewer would single out their statement that
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"[i]n addition to the training in practical skills, participants in clinical
programs can grow in self-confidence and gradually come to think of
themselves, not just as students of the law, but as lawyers."
The reviewer has come increasingly to believe that the clinical method
- the essence of which is a one-to-one tutorial relationship between student and teacher - is most significant from the standpoint of educational
psychology. Leaving aside the relatively few law students who are on law
reviews, an excessively large number of law students suffer from a lack of
self-esteem. Young men and women who have been conditioned from
childhood to measure success in terms of letter grades, and who have
always succeeded by those standards, are suddenly confronted with failure
in law school. By "failure" the reviewer does not refer to those students
who actually fail or drop out, but rather to these students who graduate
from law school with mediocre grades. With the ever-increasing competition for admission to law schools, it is inevitable that such "failures" can
only increase in number and intensity so long as law schools persist in their
present policies of grading and ranking. In the reviewer's opinion, one
means of ameliorating the presently destructive effects of traditional law
curricula is to introduce more student-oriented teaching methods such as
the clinical method. The reader may properly be skeptical of personal
testimonials, but the reviewer has seen remarkable changes in both attitude and performance on the part of marginal students who have been
cast in a clinical setting and for the first time feel what it is to be a lawyer.
The educational significance of assuming a career role is illuminated by a
look at medical education. The book under review contains a very interesting paper by two medical educators, Dr. William Creger and Dr.
Robert Glaser, entitled Clinical Teaching in Medicine: Its Relevance for
Legal Education. The paper should be read carefully by anyone concerned with clinical education.
Clearly the most rigorous and useful portion of the book is John Ferren's
paper on Goals, Models and Prospects for Clinical-Legal Education.
Mr. Ferren (who has since left teaching for private practice at great loss
to the teaching profession) wrote his paper from the vantage point of
Director of the Legal Services Program at Harvard Law School. The
reviewer wishes that Mr. Ferren had chosen to broaden his scope of analysis somewhat. Nevertheless, Mr. Ferren's paper stands as the best statement to date on the subject of clinical education in law schools. Rather
than attempting to summarize what Mr. Ferren has so ably done, the
reviewer simply recommends that the paper be read carefully and filed
for permanent reference.
RICHARD L. YOUNG
Associate Professor of Law
University of Utah
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