The goals of training lawyers in a constitutional state

If the task of law schools is to prepare lawyers to join their country's legal system, then we need to ask what the virtues of lawyers in a constitutional state are. Broadly, the answer is that they are comparable to the virtues of judges in a constitutional state, which I’ve been exploring in other posts.

This is in a sense just an application of the general principle that we train lawyers in the skills of judges -- as in the extensive focus, in US law schools, on the study of the legal opinions of appellate courts. That focus is overdone, because lawyers do a lot besides reasoning about law and shaping plausible arguments in light of past precedents and authority, but these skills are obviously important to law practice. Lawyers also need these skills in order someday to become judges, since we draw our judges primarily from the practicing profession.

But as described so far, all of this can be just training in legal reasoning. Law students are expected to learn to argue either side of a proposition. They employ arguments of many sorts, from parsing of texts by "canons" of interpretation to broad propositions of policy or legal purpose. All this is valuable but it is, by itself, training in technical skills rather than in the work in which those skills are employed.

What case study alone does not give is responsibility for the well-being of a person. Judges have this responsibility, but their responsibility is to all the parties before them, and ultimately the entire nation. Lawyers apprentice in responsibility to all by taking responsibility for individual clients. But it would be odd if that apprenticeship consisted in taking responsibility for one client, with indifference to all other people – this would be training in responsibility for others on one hand, and in irresponsibility on the other. In fact, as officers of the court, lawyers also have some recognized responsibility to the law and the nation. Exactly how much responsibility they have to those other than the client can be debated -- but it is not zero.

Bill Simon, in his excellent book The Practice of Justice: A Theory of Lawyers’ Ethics (1998), argues that lawyers are engaged in exactly the same business as judges. Every day, as he points out, lawyers in effect make law, or at least shape the legal culture and the effective reach of law, by the advice and assistance they give to clients. So, Simon argues, lawyers should only give the advice and assistance that is consistent with justice – just as judges should only render just decisions. This doesn’t mean that either lawyers or judges should simply do what they think would be best; both are under institutional constraints, such as the obligation to abide by precedent or to defer to democratic lawmaking, and lawyers may be under more constraints than judges, who explicitly have the authority to interpret and in some cases to make law.

I might not characterize the role of lawyer or judge quite as broadly as Simon would. For Simon, there ultimately are few if any legal rules fixed by their past articulations either in judicial opinions or in legislative or constitutional enactments. Instead, almost any proposition derived from a literal reading of a legal rule may be modified or resisted on the basis of principles, such as equality or liberty, immanent in the law. This may be right, as a statement of how to handle extreme cases (e.g., to interpret the Fugitive Slave Laws in the years before the US Civil War so as to have no meaningful effect, however contrary that would have been to the intent of those who enacted them). In most cases, however, I think the claims of “the law as written” are substantial, and the process of interpretive reshaping of the past is rightly gradual and respectful rather than avulsive. Simon might well agree with these qualifications, and view them as incorporated –- or at least incorporable –- in his approach.

But I would agree that the lawyer, like the judge, must at least take account of justice as he or she sees it, while also honoring the claims of the law as written. That means that each lawyer, in each case, has some responsibility to consider what the justice of the case is. That consideration is valuable, both as a path to limiting the injustice that the lawyer and her client may do, and as training in the broader responsibility for justice that the lawyer may undertake as a judge (or a legislator).

All of which is to say that law schools need to prepare law students for a practice of law in which they take responsibility for considering the justice of their actions on behalf of clients. The next question is, how?

I’ll have more to say about this, but an initial point, which other readers of Simon such as Kate Kruse have emphasized, is that lawyers do not make law by themselves. Instead, they play their part through interactions with their clients, and the clients – as members of the national community – play their part in law-shaping as well. So the training the lawyer should get in responsibility for justice needs to be a training in responsibility for justice shared, to the degree appropriate, with his or her client.

On how to do all this, more to come.