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General Interest

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General Interest

The “Tracks” of Law School

Law school is, I think, sort of a three-track experience.

Here’s one track. If students don’t pass the bar exam, they can’t become lawyers. So, law students must learn what they need to know to pass the bar exam. And what they need to know includes: (1) all the rules of law in all the subjects tested, and (2) how to analyze hypothetical situations, using those rules of law, and (3) how to (strategically) answer MBE (multiple choice) questions and essay questions. (Notice that these three items are what they need to do well in their individual classes, too.)

Here’s another track. In order to become adept at the three components (above), students must study efficiently and effectively toward that objective. This requires an understanding of how to study that way, commitment, extraordinary determination and tenacity.

The third track is this—understanding law…not just knowing the rules and how to apply them…not just having the ability to pass a test…but developing a rich and deep comprehension of the historical underpinnings of the law as it is today, an appreciation of the law’s role in society, democracy, commerce, employment, and the lives of individuals.

It is difficult—especially for new law students—to separate the third track from the first two. The first track is clearly related to one specific goal: passing the bar exam the first time around. Of course, earning high grades in each class along the way is consistent with this goal. The second track requires the development of essential skills. Development of proficiency at what is required to excel in the first and the second tracks combined engenders a fusion that includes “thinking like a lawyer.”

The third track is, in a practical sense, not essential to passing a bar exam. However, it is fundamental to the concept of being a Doctor of Jurisprudence, when we consider that degree as having a scholarly meaning. Jurisprudence (or legal theory) is the theoretical study of law. Scholars of jurisprudence study the nature of law in its most general form and develop a deeper understanding of legal reasoning, legal systems, legal institutions, policy factors, and the role of law in society.

When students and professors deep dive into the track-three area, they are going beyond what’s essential for mastery of the first two tracks. They are then entering the enigmatic waters of theory, and the esoteric seas of philosophy—the “stuff” of jurisprudence.

It is easy for first-year students to become confused about what they need to know in order to pass a course, to earn a high grade in a course, and to feel comfortable in a course, when their casebooks and other materials so often present the jurisprudential aspects for consideration. The confusion stems from an unfamiliarity with all three tracks—it’s all new.

Here are some thoughts to help with distinguishing the different areas of expertise that you are being exposed to:

To pass the bar exam, you need to be (at least) proficient at what I’ve referred to as the first track. Proficiency in track one requires proficiency in track two. The material you find in your BarBri outline (or any other quality bar prep course’s materials) is a good example of what you need to know very well in order to pass the bar exam, and to pass the course—this is true for all your first-year doctrinal courses. To score beyond the basic level of proficiency in a course, a student needs to achieve mastery of the subject matter, fluency in the language of the law, and command of the skill factors (strategic approaches and efficiency in answering exam questions). To score at the highest levels in a class, I believe an understanding of the “policy” factors combined with expertise in legal reasoning is required.

Here is an example. Perhaps you’ve already learned that there are three essential “formation” elements for an agreement to be an enforceable contract. One of those elements is called “consideration.” This is BarBri’s explanation of consideration:

Basically, two elements are necessary to constitute consideration: (i) there must be a bargained-for exchange between the parties; and (ii) that which is bargained for must be considered of legal value or, as it is traditionally stated, it must constitute a benefit to the promisor or a detriment to the promisee. At the present time, the detriment element is emphasized in determining whether an exchange contains legal value.

Yes, the text goes on to define terms and examine different circumstances, etc. However, the fundamentals of consideration are contained in that quoted material.

That covers track one (proficiency, of course, requires the application of track two concepts). Done.

Then we have track three. I’ll bet that one can find at least one thousand recent law review articles discussing consideration – the history of the concept, its evolution, its necessity (or not), and on and on. Treatises in the area of contracts contain page after page of theory, economic aspects, commercial effects, etc. of the whole idea of consideration.

Studying the material in one or several of these treatises and carefully reading more than a few of those law review articles should provide a student with a pretty good level of understanding (and likely, along the way, confusion). I mention confusion. Yes, because there are so many different views of most of the key topics in Contracts (and other subjects), it’s easy to become confused – then, an unraveling is required. I think that investigating the concepts in some depth, experiencing some level of confusion, then unraveling the knots is a process that is essential to attaining a perceptive comprehension of the jurisprudential aspects of a topic.

The extent to which a law student develops an understanding of the material in track three is entirely up to the student. Success in law school does not depend on a comprehensive track three approach. While immersion in the scholarly aspects of the law—history, theory, etc.— is laudatory, it is not essential. I am positive that many attorneys we consider to be at the highest levels of their profession have little or no interest in the jurisprudential aspects of the law—and that’s fine! It’s perfectly okay to avoid the depths of theory and philosophy while in law school. Actually, jumping into those areas without an understanding of how deep and turbulent those waters are, will almost certainly lead to confusion—and this confusion, at least in the first semester of law school, can easily lead to that feeling of being “overwhelmed” that so many first-year students experience. And that is why…

  • Many law schools don’t provide 1Ls access to Westlaw of LexisNexis
  • Methods of legal research are not mentioned in 1000 Days to the Bar – But the Practice of Law Begins Now.
  • Virtually no study aid for first-year students or bar preparation provides significant information about the jurisprudential aspects.

I’m not suggesting that anyone abandon the study of the history, theory, etc. of the law. Rather, I am suggesting three things:

  1. The in-depth study of jurisprudence is not a pre-requisite to success in law school, on the bar exam, or in the practice of law.
  2. Knowing the basics of the theory, history, etc. is an important aspect of law school.
  3. Being at least aware of and acquainted with these basics is an important aspect of law school, even in the first-year courses. That’s why you will find quite a bit of text between the cases in your casebooks. (Read that text.)

My recommendation? Master tracks one and two. Add track three, if you care to, after you have achieved that mastery level or are well on your way to it.

That’s my opinion. Others may differ—and probably do.

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