Meanwhile, Somewhere Under The Stitches

Just lent one of my 1Ls my worn, tattered copy of Charlie Black's "Structure and Relationship in Constitutional Law" (for winter break reading), and think I can safely call it a semester.

— Steve Vladeck (@steve_vladeck) November 17, 2021

This is so inside baseball it will make me sound petty and churlish, and I don't mean to be.  What I really mean to point to is the difference in approach of law schools, which this anecdote encapsulates perfectly.

UT Law has a reputation for cranking out grads who expect to be on the Texas Supreme Court (at least) before their careers are over.  Giving a first year a book on "Structure and Relationship in Constitutional Law" is precisely the image of that.  Let me explain.

Law schools differ over what they teach first year students, so I'll stick to my first year law.  I had, for two semesters, Property; Torts; Criminal Law; Constitutional Law, and Contracts.  Legal research took up the first semester, I honestly don't remember now what took up the second one.  As I say, it varies slightly from school to school, but those are the basic courses you need in order to begin to understand law at all.  I won't bore you with why.

Of those, the one you are least likely to encounter in practice is ConLaw.  Even criminal lawyers seldom handle cases with major constitutional law questions.  Most of those questions are either covered in criminal law (we learned a lot about Constitutional requirements and limitations in criminal law, aside from the ConLaw course) or criminal procedure (a great deal of which is bounded by constitutional law decisions).  You use those tools in practice; you seldom, if ever, have a case where the concepts themselves are a major issue for the court.  It happens; but it's as rare as hen's teeth.

I worked in a law firm for litigators for almost 3 years before I entered law school. I never saw anyone in that firm have to deal, in their trials or their cases, with a serious Constitutional question.  You need to know how ConLaw works, and what the major decisions are (like Shelley overruling racial covenants in deeds; that can come up in real estate practice especially), but you don't need to know the "structure and relationship" issues in ConLaw.  I'm not even sure what those are; not as general principles of ConLaw, anyway.

As I say, nothing wrong with knowing the law in a way I wasn't taught.  But the old saw among Texas lawyers was that the UT grads all thought they deserved to be at least appellate judges (who decide arcane questions of law trial judges seldom deal with), or law professors.  Baylor Law, on the other hand, emphasized trial practice.  They held moot courts their students were expected to attend and perform in, and they were honed and ready to step into the courtroom when they graduated.  Before I went to law school, and after experience had taught me how (and why) to attend docket call (for trials and hearings in court), I had UT law graduates sending UT law students to me to ask where the court house was, and what were they supposed to do at docket call?  Now, granted, most law students don't know that (I wouldn't learn it in law school, either), but it was especially funny becuase UT Law grads and students sort of thought...well, that their shit didn't stink.

Those of us in practice knew that recent Baylor grads would mop the courtroom floor with recent UT grads.  It was all a matter of what you trained for.

Now, to be fair, law education is caught betwixt and between.  When I got my Master's in English, the only course of study was academic.  It was a purely academic degree.  When I got my Master's in Divinity, the course of study has academic, but also practical.  We studied pastoral care and matters of handling (literally) congregations, and I served a congregation as their pastor for two years while I was a student.  What I was taught in seminary was merged into what I was learning on the job, like handling a call from a member in full disocciation from her primary personality.  I'd been told (warned) about her.  I had no psychiatric training, a modicum of pastoral care studies, and I got through the conversation by telling myself "DON'T SCREW THIS UP!"  It was a bit of a "being thrown in the deep end" experience.  But that was one of the purposes of seminary; to prepare us for the profession, not just to teach us to be academics and Very Serious Theologians.

Law school presumed we'd get clerkships and learn something (a little) in the summer about practicing law.  Law firms assumed their new hires were too dangerous to trust with anything but research in the library.  Lawyers who didn't land in law firms learned "on the street," as it were, what to do and how to do it.  None of this especially helps lawyers practice law in the best way for their clients.  Some law schools are extremely academic, in other words; some are extremely practical.

In my experience, practical is better.  One of the slights against the currrent Supreme Court bench is how few of the Justices practiced law before become judges and then Justices (or just went from professorships or government jobs.  I'm not up on the bios of all the justices.).  It's a valid critique.  Dealing with real people's real problems (one reason I went to seminary was because family law convinced me I wanted to help people, not just represent their economic interests to the best of my ability.  Turned out my help wasn't all that appreciated, or what was needed.  But it was why I tried.) is a very valuable teacher about what the law should be doing, and what the "structures and relationships" in ConLaw, or even property and contracts and torts law, really is.

I still admire Professor Vladeck.  The world needs good people like him.  That anecdote just struck me as the perfect example of an "academic" legal education.