Why Law School is Backwards
Law students learn a set of core subjects, some electives and then once they have finished their degree will do some practical legal training and be required to have some sort of experience in a firm before they are able to become admitted as a lawyer. In my view the sequence of learning is backwards. The graduates finish with few useful skills, and their opportunity to understand the theoretical framework of law is squandered by the lack of context. This could be remedied by students getting practical experience before commencing their studies and only once they have experience of how practice operates then learning their usual legal studies.
Context is King
I recall sitting in my university equity lectures as we were going through different types of trusts (fixed trust, unit trust, discretionary trust) and thinking that a discretionary trust must be the most useless trust there is because there is no certainty of receiving benefit. What rational person would settle property in a trustee who could chose to dispose of the income and capital from that trust fund amongst a class — the trustee could choose to benefit someone an undesirable member of that class. It was upon being exposed to tax law and the utility of being able to select amongst a pool in order to choose the potential beneficiary with the lowest marginal tax rate that a discretionary trust began to make sense. And then in practice when I saw that discretionary trusts could be subtly controlled by way of the appointor or having a corporate trustee for which the (non-notional) settlor is the director and shareholder of did it make sense that you are able to control a discretionary trust and benefit from it without direct ownership. Otherwise-arcane discussions such as the abolition of the “list certainty rule” in IRC v Broadway Cottages and the adoption of the “any given postulant” test in Re Gulbenkian finally made sense from an asset protection and taxation point of view. Indeed, it was the discovery that many otherwise nonsensical legal occurrences were done for the purposes of tax was what spurred me into doing tax law. I wonder if I would have chosen tax if these things had been explained beforehand?
Purpose of University
The desire of a university student is two-fold: to finalise their degree and to obtain a job. Although theoretically universities are a place for learning, that is rarely the purpose of which students attend. Students are there to get credentials and see themselves on their way in their careers. Or perhaps in some degrees to pass time until they work out what they are going to do with their lives. I am not going to pretend that I was some wunderkind who paid tens of thousands of dollars purely for the goal of self-enlightenment. I must admit that when I was lectured on discretionary trusts (as well as almost everything else) I duly noted the information and ensured that I had sufficient brief summaries so that I could apply those factoids in an exam if questioned what is required for certainty of object. Once the exam was completed the factoids were largely forgotten. There was no reason to remember such abstract knowledge.
It was only some years later when I began to practice in a more specialist trust and tax practice that I discovered and re-read what was fundamental material. If a student is presented with reasons for understanding material and context they can be given the motivation to explore more deeply the law. Under the pressure of cramming material for exams, cases and legislation are treated as if they are tequila shots to be slammed down, with a resulting knowledge as clear as one’s head after a night of slamming such shots. Given context the consumption of law should be more like fine wine: something to savour and mull over, to taste to find what is of interest, to spit out what is not relevant, and to succour and mull upon what is of interest.
I’m not sure that it is an answer to simply say that lectures should be re-worked away from the theoretical to include more context, as often it can be difficult to explain fundamentals in their relevant contexts, and there probably isn’t sufficient teaching time given to fundamentals as it is. A given subject might be taught over 30 to 40 hours in a semester, whereas that much exposure could be gained in a mere week of working. When I’ve taken on law students as clerks I’ve seen little difference in ability based on their years of study; a first-year student is generally equally as capable as a final-year student. Instead, the greatest differences between students is personal. That is to say, one of the greatest benefits of going to law school is that it is a filter for intelligent, ambitious people who have highly developed language skills (who are probably bad at maths).
The law students I have taken on clerks earlier in their law degree have testified to the utility of understanding context while they are studying and their deeper interest in spending time on having a more rigorous examination of material that they would otherwise have skipped over. Given context a love of learning and a love of law can be developed. And I think we can all be better off if that is achieved.