Universities must Impart Practical Empirical Education in Law Courses
Aviva Jogani, 3rd Year, BA.LLB (Hons.), Jindal
Global Law School
Editorial Note: In this
blog, the author emphasizes the need for incorporating elements of empirical
and practical education within the law school curriculum in order to truly
train law students for success in their legal careers.
Duncan Kennedy, a professor
at Harvard Law School, wrote an article titled “Legal Education and Reproduction of Hierarchy” in 1982, in which
he referred to law school as a political place for those who are willing to
function in a hierarchy of a corporate welfare state.1 In his article,
Kennedy states that the language of the coded law and the manner in which legal
reasoning is taught by professors in law school are incomprehensible for
students, just as they are for any layman. The authoritarian nature of teachers
coupled with their biased views is what guides Kennedy to describe law school
as an “intensely political place”.
Through his writing, he disparages and discredits the grading system as he
considers it to be absolutely extraneous to the tasks a student has to perform
as a lawyer and emphasizes how yet law schools scream high grades equals good
jobs and good money. Further, he criticises the “top law firms” for recruiting only those students with top grades
as the recruiters themselves have been in the position of a student and thereby
ought to know that it takes much more than good grades to be a successful
lawyer.
Drawing from Kennedy’s
perspective, it is argued that if law continues to be taught in this manner,
students will only learn the permutations and combinations of how to attempt an
exam paper rather than being able to solve real life problems as per the
demands of their chosen career. It is not only professors in law school but
also judges and lawyers who must attempt to break this system of legal
education as it will ultimately hinder the development of the entire legal
system in our country. It is argued that without empirical research, the
knowledge of law is useless and the essence of law will never be fully
mastered. Moving beyond the four walls of a classroom where only text book knowledge
can be gained is crucial for students to attain first-hand experience of how
the law works in a courtroom.
The current undergraduate
and postgraduate law courses in India do not give students this opportunity. When
they graduate from universities with their law degrees, they have to start from
scratch as none of the education they received (over 5 years or 3 years, depending
on the course) can either be retained by them or adopted in practical real life
scenarios since law is not just a mathematical formula which can be directly
applied; its application differs on the facts and circumstances of each case.
‘Mugging up, as it is commonly called, of thousands of case laws and statutes
over the years in law school is forgotten the minute the exam is over. What
then is the point of students working hard for such a long period of time to
attain grades which merely reflect their ability to memorize? The answer to
this is that law school entices students to work hard with the possibility of
offering them only short term success. Good grades will bring them good jobs,
but what next? What is the point of hiring a student who knows nothing about
the task that is to be performed? This is not only detrimental to the students
who have an added pressure to learn the tasks to be performed in a short period
of time, but also to the recruiters who have to take that extra effort in
teaching new recruits about basic tasks.
Empirical research throws
light on the gap between legal idealism and social realities as it lies on experience
and observation alone thereby, depicting a clear picture of law in action. Katherine Kruse, while throwing light on the
need for empirical research in order to contrast law in books from law in
action, states that
“Missing from the law in books are the myriad ways the
meaning of law shifts as it filters down from appellate opinions to lower court
cases; as it spreads from lower court cases to local practices; as local
practices influence the information and advice about the law transmitted by
lawyers, court clerks, social workers, probation officers, friends, neighbours,
employers, and others; and as it ultimately shapes the lives of people who
receive information or advice from these multiple sources of legal authority.”
Further, analysing court
files, drafting plaints, written statements, notices, contracts, agreements
(and other legal documents), interacting with clients, lawyers and judges, conducting
legal research using the legal software, summarizing judgements, meetings and
reports, observing negotiations, mediations and client counselling, attending
court and most of all understanding every single aspect of the case, both documentary
and oral, from the beginning to the end, by working on the field to learn the
practical aspects of law is what can really prepare law students to excel in
their field of work.
On the flipside, it can
always be argued that law students get a chance to intern during the 3-4 months
of the summer/winter vacation period that they get in an academic year. However,
it is the complaint of every law student that such short term internships are
pointless and do not serve any purpose because of the following reasons.
Firstly, they hardly get any ‘big tasks’ required to be performed over a long
period of time as associates are aware that they will leave after few weeks and
thereby make it arduous and time consuming for them to find a replacement. If given
an option, they would select a long term intern who will be present to assist
them at every step of a case. Secondly, most cases in India on average go on
from anywhere between a few months to several years. This restricts the short
term interns from completely delving into any case as they will either be on
board half way through its completion or have to leave it midway due to their
limited time constraints. Thirdly, they get extremely menial tasks such as
small research assignments, due diligence, printing and summarizing documents.
Fourthly, for the first week in which they start interning, often they have
very little or almost no work since they are yet to be familiar with all the
associates. Nevertheless, they are asked to stay back till late in the evening
to adhere to rules regarding minimum working hours. This not only deprives them
of the opportunity to learn at the internship, but also eats into their
productivity time. Thus, these issues hinder law students from acquiring
substantial amounts of knowledge from short term internships.
It is therefore, an
unfortunate truth that even those law students who have completed five years in
law school do not know the most basic aspects required by their profession
after they graduate. While there are millions of pending cases before the
Indian judiciary which will take decades to be cleared, it is time to step up
our legal education system to train law students who will be the future of
Indian law. It is thus, argued that some practical components should be
incorporated within the course curriculum of the law degree such that students
can be exposed to and learn about different practical aspects of the law during
the course of their semester instead of being solely dependent on short term
internships for the same. While empirical or practical exposure must not become
a substitute for theoretical methods of education imparted by universities, it
must be given at least similar weightage as it is one of the important ways of enabling
students to understand how the law really works.
____________
1. Duncan Kennedy, Legal Education and the Reproduction of
Hierarchy (1982), Journal of Legal Education, Volume 32 Issue No. 4,
Association of American Law Schools
2. Khushal Vibhute &
Filipos Aynalem, Legal Research Methods (2009),
Justice and Legal System Research Institute, Pg. 26
3. Katherine R Kruse, Getting Real about Legal Realism, New Legal
Realism, and Clinical
Legal Education (2011–2012), New York Law School Law Review 659.
Comments
Post a Comment