Schuwerk, R P --- "Law Professor as Fiduciary: What Duties Do We Owe to Our Students?" [2004] LegEdDig 56; (2004) 13(2) Legal Education Digest 11

Law Professor as Fiduciary: What Duties Do We Owe to Our Students?

R P Schuwerk

[2004] LegEdDig 56; (2004) 13(2) Legal Education Digest 11

45 S Texas L Rev, Fall 2004, pp 753–812

Law professors play a wide variety of roles. As scholars, we are the stewards of the law. Our solemn obligation is to examine the way the law works, both in theory and practice, and to report fully and faithfully on what we discover. The freedom to conduct such searching inquiries is one that all of us treasure. On most law faculties, there are a fair number of professors who, if they could, would do nothing else. In our system of legal education, however, that is not possible.

It is our job to orient entering law students, most of whom are completely unfamiliar with both the law itself and the incredibly complex task of practising it, into reasonably competent, ethical practitioners. In addition, of course, we hope that we manage to convey a certain minimal amount of legal information to our students in broad, foundational areas of the law, such as torts and contracts, and a substantially more in-depth knowledge with respect to those areas in which the students choose to specialise.

This paper focuses on this second dimension of our professional lives. It argues that, as institutions, law schools do not take this second mission very seriously, indeed they are doing a rather bad job of it, and, to the extent that they are even aware of those facts, do not care all that much. Many law professors suffer from many of the same shortcomings of the institutions that they dominate, but because they do not see constructive change as being in their best interests, they are unwilling to either make substantial changes in the status quo or support efforts by others to make such changes.

There is a raging debate in legal education concerning whether law schools do enough to train their charges to be competent and ethical practitioners. The focus here is on the destructive impact of the current dominant legal education pedagogy on vast numbers of law students who pass through our hands, the causes of that devastation, its continuing consequences on our students’ abilities to lead productive and fulfilling professional lives after law school, and how that destructive impact might best be eliminated or at least significantly ameliorated. However, a broad agenda for reform would meet with intense resistance due to current law faculty compositions and attitudes, even though it would not be very difficult to implement within the strictures imposed by current law school budgets.

One way to begin an inquiry into the difficulties with legal education is to examine the relationship between law professors and law students as it plays itself out in American law schools. What is the proper way to conceive of the relationship between law professor and law student? Another aspect of the law professor-law student relationship — one far less exalted and seldom dwelt on — is that of gatekeeper. Whether or not we impart any useful information to them, students are obliged to put up with us for the length of time necessary for them to complete a prescribed course of study. A third aspect of the law professor-law student relationship is that of mentor. There are innumerable ways in which we could mentor our students. Many of us already see ourselves in that light by virtue of our teaching them the substance of our respective areas, and, more generally, how to read cases, how the law grows and develops, and ‘how to think like a lawyer.’

Law schools, as institutions, do not encourage broad faculty mentoring in the sense described above. They do not hire people willing to do it, and they do not reward it should it occur anyhow. Why not? Law schools are run primarily for the benefit of law professors — not for the benefit of law students, not for the benefit of the legal community, and most certainly not for the benefit of the public at large. Law schools are run primarily by law professors and former law professors, who generally consider that arrangement to be benign, and certainly do not wish to change it.

Law professors are a self-perpetuating elite, chosen in overwhelming part for a single skill, the ability to do well consistently on law school examinations and preferably ones taken at elite ‘national’ law schools. Once they are hired, law professors are rewarded primarily for scholarship. Most law professors are not familiar with the ever-increasing literature documenting the extreme levels of mental illness and substance abuse that develop among law students while in law school. Many law professors do not like the practice of law, and consistently denigrate it to their students. Many law professors do not like practising lawyers, and consistently denigrate them to their students. Many law professors tried to practise law, but were not very good at it, which results, unconsciously or otherwise, in more venomous criticisms of the profession and its practitioners than would otherwise be the case.

Many law students are adversely affected, often in a very deep and long-lasting way, by the over-intellectualisation of the traditional law school approach to legal problems. Feelings can be ignored, but they cannot be suppressed. The suppression of feelings leads to isolation, and a generalised decrease in the ability to communicate with others in meaningful ways.

The law professor offers nothing to replace those values, but instead seems to reward most highly an ability to make a plausible case for a position that, outside the classroom setting, would be ‘laughed out of court’ as utterly ridiculous. The final and potentially most devastating problem created by the overly intellectualised ‘thinking like a lawyer’ approach, while not directly attributable to either the doctrine itself or how it is employed in legal discourse, is nonetheless very real: an inability, especially among those newly acquainted with it, to confine it to its proper sphere.

Students will be graded on a curve. This is tremendously important because it severely undercuts the only method that most students have ever known for surviving in troubled educational waters: banding together and pooling their knowledge. While law school pays lip service to law students developing a wide variety of competencies, only scholarship gets a major play. All of us should read the literature documenting the deleterious effects that law school has on many law students. All of us should endeavor to curb our expressions of disdain for lawyers and the practice of law. Being a good lawyer is very difficult, involving a far wider range of competencies than law professors are commonly called on to demonstrate. Our opinions matter to our students. Let us be sure we are right before we condemn the profession they have decided to enter, and the lawyers they will interact with there. Law schools should abolish grading on the curve and replace it with a system involving floors only. Law schools should stop hiding the final-examination ball.

All of us should recognise the critically important role played by law school legal research, lawyering skills, and clinical programs in making our students into the kinds of professionals of which we can be proud, and acknowledge that professors in those fields are full partners in our educational enterprise, if not the managing partners.

Virtue needs to be taught, at least professional virtue does. Most students come to law school without any idea of what it means to be a lawyer. Teaching virtue is hard, and persons who can do it well are a lot scarcer than traditional law professors. The best way to ensure that students take legal ethics seriously is to completely integrate it into all lawyering skills and clinical course offerings at our institutions, so that it becomes an integral, living part of the way law is practised there.

There should be a much greater emphasis on providing law students with clinical educational experiences than there is in most law schools today. The importance of such experiences in molding students into competent, ethical practitioners cannot be overstated, a fact that we should make clear to them at every opportunity. Law schools should actively seek to involve those judges and members of the practising bar with established reputations for a high level of competence and integrity in their schools’ educational efforts.

These reforms would go a long way towards making law schools more humane, more fulfilling, and more uplifting institutions, while enhancing the quality of education our students receive. Law is an intrinsically interesting subject. Its study should be interesting as well. For many of our students, however, it is a thoroughly demoralising and debilitating experience, one that, in some cases, can leave them scarred for life. What can be done about it?

The answer to this question potentially is much more positive, provided we have the courage to examine the consequences of our positions of privilege on the welfare of our students and to renounce those of our traditional perquisites that have contributed to the difficulties that so many of our students experience. Even if comprehensive reform in legal education is problematic, there are still things that each of us can do to improve present practices. But there are many other, more subtle skills that you will need, skills that can be described as ‘temperamental competence’. Good judgment is a skill based on experience. This is a great deal to fit into three years. In fact, it is such a broad range of knowledge, skills, and competencies that few of us possess them all, at least not to the extent that we would need to in order to be good enough to teach them to you.

What if your own deans could truthfully tell this to new students entering your law schools? What if, upon leaving your law schools three years later, your graduates thought that your deans had told them the truth? If you believe those would be worthwhile developments, then work to make them come true.