Sotomayor’s Confirmation: Not What It Seems

The U.S. Senate, particularly the majority of members on the Judiciary Committee, are doing backflips and cart wheels for its “progressive” move in elevating Sonia Sotomayor to the Supreme Court as the first Hispanic to serve as an Associate Justice. That’s nice but it doesn’t resolve  the lack of legal power in America not only for minorities but for also for working mothers, the elderly, the poor and for career switchers, all of whom could, with proper training, represent both in and out of court the unrepresented by serving as officers of the court. The widening of diversity within the practice of law is what’s really needed. This could be done if all 50 states encouraged the study of law by correspondence courses, the Internet and law office apprenticeships. That way any American who wanted a shot at a legal education could get it on the cheap. But more than 40 states and the federal government won’t permit this. They use the phony argument that law is best learned in law school. The practice of law is tightly controlled by a rule that says only graduates of American Bar Association accredited law schools may sit for a state’s bar exam and earn a law license. Accreditation, however, is not suppose to be used as “A Good Housekeeping Seal of Approval.” In other words, accreditation doesn’t tell how good a law school is. Nonetheless, the accrediting rule applies in the vast majority of states although the states that allow alternative ways to a law license without ABA accreditation, such as California and the State of Washington, freely admit students who have the ability and ambition to succeed on the bar exam by studying outside the classroom can and do make good attorneys because they must meet the same training and professional standards as licensed attorneys from traditional law schools. Don’t believe me! Ask the California Committee of Bar Examiners and the State Bar of Washington that keeps records on how non traditional law students perform before and after being granted a law license. Now let’s look at the study of law. A student doesn’t need to be physically in a classroom to learn the difference between a  “holding,” (a court decision) and “dicta,” (a judge’s statement with little if any authority).” It’s not necessary to be in a classroom to learn legal research, read legal encyclopedias, law review articles and statutes or to tell the difference between primary and secondary sources. The case method used by most law schools is outdated, invented in 1870 by a Harvard law professor named Christopher Columbis Langdell (I like the name) when he asked a student in a contracts class a question, something that had never been done before.  Langdell was also interested in the universities in Germany and wanted to make law “scientific.” A lot of advances have been made with technology and with how people actually learn since Langdell was in the classroom. My god, this is the 21st and not the 19th century! And another popular way to learn the law, the Socratic method, dates back to ancient times. Wow! And who ever said the law was based on logic was a little off base (just read some legal history about slavery, etc. ). However, the best thing an attorney can have, in my opinion, is real life experience gained over time, such as knowing the right questions to ask, how to extract information from witnesses, know a lot about the legal issues involved, and how to perform before a jury. This is an area where age and experience shines over book learning.  A lot of lawyers, particularly new graduates, don’t have true lawyering skills in the beginning of their career because many law schools don’t teach the nuts and bolts of practicing law (too much like a trade school) and the bar exam doesn’t test applicants on how well they can perform on the job. Maybe it wouldn’t be a bad idea if students had to show they could actually practice law before being granted a license to practice? So what should be done? The U.S. Department of Education should decertify the ABA as its only approved law accrediting agency to open up the study of law for more people. The bar exam rule in each state should also be considered a federal issue since it often involves a diversity case (a graduate of an non ABA law school in Alabama petitions to take the Arizona Bar Exam). It may also a constitutional issue because the state’s are denying qualified applicants the right to take its bar exam, some of whom are licensed in other states and have successfully practiced law, trampling the “right to happiness” provision we all treasure. And what’s the difference between disallowing a qualified applicant from taking a bar exam and refusing to allow a black person to sit at a lunch counter? Beats me! Appointing Sonia Sotomayor to the Supreme Count was a wonderful thing because she is highly qualified and deserved it. But her appointment doesn’t get at the real problem of “Unequal Justice,” the title of a wonderful and honest book about the law profession in America.