Legal Commentary

Lesley's post below offers an old chestnut of a topic: advice to 1L's.  A good topic, especially because they will soon enough face advice, usually of a different order, from 2L's and 3L's, and we have but a brief window in which to either confirm that advice or inoculate them from it.  I gave a similar talk last week, and here are a few of my general thoughts.

1) It's Not Undergrad Part 2.  I don't mean by this that law school is harder than your undergrad degree; it is for some, and not for others.  Nor do I mean that the strategies that got you through your undergrad degree won't work as well in law school, though that may be true for many students.  I mean that it is important to keep in mind that you are receiving something different from a general liberal arts or science education at law school: you are receiving a professional education.  In general terms, that means you will become acculturated into a set of professional norms, values, and skills.  In specific terms, that means that in three years and one bar exam you will be a responsible party: responsible for the welfare of a client, responsible for your errors and omissions, responsible for making your profession honorable and working for reform where you deem it appropriate, and, oh yeah, subject to professional discipline and even criminal charges.  A fair number of law students, in my view, come to law school thinking of the purpose of law school as ultimately being no different from getting a second undergraduate degree.  Although we can argue over what, exactly, law school is, I don't think we should be too cute about it.  You are here to become a professional, and you should take it seriously -- among other reasons, because doing so can add a sense of value, purpose, meaning, and enjoyment to your time here.  Like me, and like Learned Hand (see Gunther's biography), you may not be sure exactly why you came to law school, or perhaps you came because you weren't sure what else to do.  So be it; but you're here now, and you will like it more if you take it seriously.

2) Work; Don't Strategize. 

This is where the 2L/3L advice goes most seriously wrong.  1L's will get lots of advice about how to strategize their way to success.  Much of this advice involves shortcuts.  Use outlines and don't bother with the reading; learn how a particular professor thinks and what he or she wants on the exam; and so on.  They're about how to get the best possible grades with the least possible effort.  I can understand this advice, and I can understand the importance people place on grades. But aside from my opinion that most of these shortcuts aren't as effective for actual success/grades as doing the work of reading and thinking about everything (quicker, yes, but not as effective), they're called shortcuts for a reason: they omit a great deal.  However well or poorly law school teaches you how to be a lawyer, the shortcuts are even worse as professional training; and, again, you are actually going to be a legal professional in three short years.  Wouldn't it be helpful to start learning now what that means?  Wouldn't you like to know whether you actually enjoy doing what lawyers do?  Don't you want some greater return for your (substantial) tuition money than grades alone?  If so, learn the materials and learn the skills; they will ultimately work well in any and every class, despite the ready availability of commercial outlines and the quirks of individual professors.  Keep one last thing in mind: lots of lawyers get good grades and still have dead-end careers, and some lawyers who didn't do well in law school still manage to become innovative and involved lawyers with fulfilling and remunerative careers.  Short-cuts may get you the grades -- although, just as often, they don't -- but they probably won't get you the skills and passions that will help you to become a good or great lawyer.

3) Legal Writing is Not a Course.  Well, OK, it is a course.  But it's not just a course.  Don't make the mistake of thinking that it is something separate and apart from your substantive courses -- or worse, that it is less important than them.  Effective legal writing is effective legal practice -- both because good legal writing is good legal analysis, and because most of what you do as a lawyer will involve communicating clearly to others, either in written or oral form and regardless of whether you're communicating with an adversary, a client, or someone on the other side of a corporate transaction. Moreover, mastering good legal writing is the best "strategy" there is for mastering your substantive exams: a great legal exam, in my view, is just a great legal memo written under unusual time pressure.  So treat legal writing as one of your most important courses, whether or not it's pass/fail, and do your best to internalize the form of the legal memo so that you can use it on your exams.

4) Learn, Don't Transcribe.  Back when I was a mere seedling, we "took notes."  You know, with pens.  We didn't record or transcribe everything we heard in law school, especially if it came from the prof.  And it's a good thing, since not everything professors say is wise or true and not everything students say isn't.  Bring your laptop, by all means (I'm not going to get into that debate!).  But don't let it dominate your time in class.  Listen to what's going on, take the most pertinent notes, summarize, and participate.  Be an active learner, not a dolt who happens to have a large text file.

5) Screw Up -- It's Cheap!  And why should you participate -- either by speaking up in class or by at least following and thinking about the discussion?  Because it's a great way to learn the material.  Because you are paying exorbitant sums for three years of school and you might as well get involved; you might even enjoy it!  And, especially, because speaking up in law school is yet another way to actually get experience in talking about and using the law and trying to construct valid arguments.  And it's cheap!  You've already paid your tuition, and as long as your check clears you won't be kicked out just because you said something wrong in class.  On the other hand, if you're wrong, the worst punishment you face is a few titters.  No one will go to jail; no client will get audited; no deal will fall apart; you won't be disbarred.  Wouldn't you prefer a surgeon who was willing to maim a few cadavers in med school rather than waiting till you're on the table to get some practice in using the scalpel?  Same principle.  Law school is a virtually cost-free place to fall on your face, and you might just enjoy yourself and learn something in the process.

6) Drink the Kool-Aid.  Joining a profession is a little like learning a new language, and a lot like joining a cult.  (Or "new religious movement," for the scholars.)  Don't resist it.  There's a wonderfully awful book called Anarchy and Elegance, about a year spent by a journalist as a Yale 1L.  He writes quite accurately about how law school changes your mindset, but by standing outside the process and resisting it almost entirely, he fails to learn half of what he could and to understand most of the other half.  I am not advising you to abandon any critical perspective on the law and the legal profession, on professionalism and acculturation in general, and on law school.  But if you are only critical, without willingly absorbing any of what you are learning, you will become a half-educated cynic.  To a certain degree, to get the most out of law school -- the most education, but also the most joy -- you must give yourself over to the process and allow law school to remake your mind a little.  There will be time enough to cast a critical eye back over what you've learned and to ask whether all of the law and the legal profession's assumptions are correct -- indeed, you'll get plenty of that in law school itself, given my suspicion that a decreasing number of law professors actually "think like lawyers," for better and worse.  But you've got to immerse yourself first.  So, drink the Kool-Aid; join the cult.      

7) Don't Lose Your Common Sense.  To paraphrase and build on Anthony Kronman, law is a form of modified practial wisdom.  "Modified" in the sense that you have to learn something about the system to think about what values and factors are relevant to building sound and wise policy in the system -- so that, for instance, concerns about innocence in criminal law also run up against concerns about finality in the administration of criminal justice, concerns about "equality," "liberty," and other values in constitutional law run up against concerns about institutional competence and allocation, and so on.  But just because you're busy drinking the Kool-Aid, don't abandon the common sense that brought you this far without your walking into traffic, or jumping off a bridge, or going to "The Clone Wars," or drinking too much tequila.  (Warning: the last two examples may not apply to everyone.)  Every year in constitutional law, many of my students insist on arguing that vast stretches of federal law must be unconstitutional, largely, I think, because they assume that if a statute is in the exam I must want them to say it's unconstitutional. (More "strategy.")  Maybe I just want them to show me the arguments, even if common sense ultimately helps point to the conclusion that the law stays on the books.  Although law is, as I say, a modified system of common-sense and practical wisdom, it is not without common-sense and wisdom, and some of what you are learning may be more understandable, and easier to put into perspective, if you retain a dollop of simple common sense while you are trying to make heads or tails of the doctrine. 

That's more than enough for now.  Reactions are welcome, and if I lack other means of procrastination I may try to add some more practical and specific advice.