Some Thoughts on The Scalia “Bread and Butter Courses” Dust-Up

The blawg world was all abuzz recently about comments Justice Scalia made to students at a local law school in Laramie, Wyoming.  When asked about the “best piece of advice” he could give to law students, he advised them not to waste time taking “frill courses.”  More specifically, he said:

“The only time you’re going to have an opportunity to study a whole area of the law systematically is in law school . . . You should not waste that opportunity. Take bread and butter courses.  Do not take, ‘law and women,’ do not take ‘law and poverty,’ do not take ‘law and anything.”

Some excellent posts have sprung from Scalia’s remarks.  Professor Jonathan Turley, for example, pointed out that:

“My students will be better lawyers but [sic] not only learning about the practice but the philosophy of law.  It is both possible and, in my view, essential to get both in your training.  I am distinctly proud of my student’s [sic] in their ability to move seamlessly from the theoretical to the doctrinal in class.”

Simple Justice blogger Scott H. Greenfield contributed at least two valid points on both sides of the controversy.  On the one hand, using the example of a hypothetical class on “Law and Potted Plants,” he writes, “Within the Law and Potted Plants course, there may be contracts, or property, or even criminal law (it could happen).  There is no independent body of law that relates solely to potted plants, divorced from the more rudimentary practice areas.”

On the other hand, Greenfield seems to side with Scalia that “Theory, doctrine and practice can all be taught simultaneously in more rudimentary law courses, and for those scholars who desperately want to push their personal hobbies, example of law and women abound in discussions of property law and contracts.  There are no shortage of pet opportunities.”

While I think these are some great points, the question for me is whether students are really choosing “Law And . . . ” classes at the expense of bread and butter courses.  In other words, is Scalia’s advice misplaced, not because “Law And . . . ” courses are valuable learning opportunities that should not be disparaged, but rather because students are not choosing between, say, a course in Evidence or Civil Procedure and “Law And Potted Plants?”

Unless things have changed in the 20 year interval since I was a law student, most of the “bread and butter” classes are completed half-way through the second year.  This leaves a year and a half to take courses that, hopefully, take the rudimentary skills learned in the first year, and apply them in ways that further cements that learning.  For me, it was Trial Advocacy and Appellate Advocacy.  These required me to use information and skills I previously studied in Evidence and Legal Research and Writing.  Somehow, though, I still had time to take other elective classes in Legal History and Employment Discrimination, which gave me perspective on our profession and spawned my interest in employment law.

So are students who are interested in “Law and Women” or “Law and Poverty” really taking these “Professor’s Hobby” courses (Scalia’s term, not mine) at the expense of courses that address core competencies?  I tend to think not.

The issue I struggle with, and have written about, has to do with the dearth of practical training many students receive before they are released into a legal marketplace that suffers from declining mentoring and training opportunities.  As I said here, brand new graduates who would have received practical guidance from their first law firm or government employer are increasingly left with few alternatives to opening their own law practice out of a local Starbucks just to make their student loan payments.  I’ve read that at least some schools are responding to this need with more practical, clinic-oriented course offerings.

Because nobody respects a fence-sitter, I’m going to come out against Scalia’s remarks.  I think that courses on Law and Women and Law and Poverty are a worthy way to spend expensive law school hours.  Unlike potted plants, these subjects are topical, timely and impact the majority of the world’s population.  I expect they also require students to build upon core competencies, such as research, writing, oral and written argument, in ways that ultimately produce better, more thoughtful and world-changing lawyers.

I’m not holding my breath that anyone is going to ask my best advice to law students.  If they did, however, I would highly recommend intern and externships.  Oh, and keep in touch with every person you meet in school!

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