Excerpt from Chapter 1 for Dangerous Leaders
CHAPTER ONE
Piloting the Boat by Looking at the Wake
Leadership Challenges for the Legal Profession
LAWYERS ARE LIKELY TO BE LEADERS. Of the forty-five American presidents, twenty-four have been lawyers.1 In the 114th Congress, members with law degrees held 53 of the Senate’s 100 seats and 160 of the 435 seats in the House of Representatives.2 The list of Fortune 500 companies in 2012 boasted forty-six lawyers serving as CEOs.3 If we add to that inventory state legislators, cabinet members on the state and local level, city council members, and mayors, the total number of lawyer-leaders skyrockets. Lawyers also occupy key leadership roles in industries that perhaps are somewhat less expected: technology,4 media,5 pharmaceutical,6 and toys,7 to name just a few. They run nonprofit organizations and philanthropic foundations. Lawyer-leaders are tapped to play key roles in virtually every industry and sector. While all law schools pay lip service to their commitment to preparing law students to become the next generation of leaders, the disturbing reality is that law schools more often than not fail even to offer courses on leadership or to surface leadership concepts and dilemmas in the standard curriculum. Given their likely positions, lawyer-leaders will need to develop and exercise the skills and behaviors that will enable them to perform successfully in a leadership role. In addition to understanding the law, they will need to be more self-aware, more comfortable with ambiguity, and more globally fluent than any who have preceded them. The good news is that these skills will not only make them better leaders but will also make them better lawyers.
LEAVING THE DOCK
More must be done even before the lawyer-leader enters practice. When I first proposed specifically teaching leadership skills to law students, my colleagues in the academy were quick to raise objections. Some of the responses were rather predictable: “Won’t the students be too immature to internalize these types of lessons?” “Will they have been exposed to enough practical considerations to make sense of leadership lessons?” “They probably won’t hold leadership roles for a long time, so how will this be helpful early in their careers?” I pointed out that leadership skills were like any other skill set—if practiced, they improve. Taking the conversation further, I mentioned the difference between leadership and authority; many colleagues responded with blank stares. I drew quizzical looks when I insisted that law students could—and should—begin to exercise leadership before leaving law school since, soon after graduation, many law students will begin making significant decisions affecting clients’ lives and businesses. One colleague quipped, “Leadership? I thought that people joined the military to learn leadership.”
For the most part, law professor colleagues were unclear what leadership was, why it made any sense for law students to study it, and why anyone would want to teach such a subject. The questions were part of the overall rigidity of the structure of legal education. American legal education has remained remarkably unchanged since it first took modern form in the 1870s.8 It has carried with it a correspondingly stable body of critiques,9 centering on the need to prepare law students better for legal practice and the need to introduce perspectives in the study of law that might shape the law but were too often ignored by the law. For example, scholars criticized the legal academy for failing to expose law students to the critical intersection of race, gender, power, and the law as a means of understanding how the law is developed and applied.
The debate over what to teach in law school has been transpiring for at least a century.10 Critics have centered on the structure and content of the legal curriculum, looking to determine ways to ensure the best use of the three years of law school. These assessments, ranging from historical critiques to the more recent warnings of a crisis in legal education, share a consistent theme and diagnosis: law schools fail to prepare their graduates adequately for legal practice. No one questions that law schools teach their students to tackle and grapple with legal theory. But the worry is that a legal education focuses almost exclusively on the law’s theoretical underpinnings and possibilities and ignores the practical realities that lawyers and their clients face. In essence, law schools fail to impart the precise skills that lawyers will need to meet the demands of both their employers and their clients. For example, most law students graduate without knowing how to read or write a contract, interview a client, or conduct a deposition. Law schools uniformly offer courses in legal writing to provide some basic training in legal research and writing. But to move beyond the basics and to develop practice-ready skills, law students often need to take clinical courses or experiential classes. Only a small percentage of law students elect to take such courses. The net result is that law students do not learn these skills before entering practice. If their first employer does not adequately train them to practice well, these new lawyers may learn at the expense of the client.
As importantly, legal education does not prepare students for the world in which they will practice because the traditional curriculum ignores critical issues of race, culture, and professional values. The core legal curriculum does not acknowledge or address the salience of race in the law. Much of what occurs in the U.S. legal system implicates race, but law schools typically pretend that race does not affect legal analyses or that the decisions that actors in the legal system make somehow occur in a race-neutral vacuum. Law schools rarely examine the intersection of race, law, and power as part of their core training and instead relegate questions of race to the margins. Because they are not trained to examine questions in the law using a lens that focuses on race, class, gender, or difference, law students can easily miss or misunderstand their significance in understanding the law, its application, and its implications. Similarly, law schools do not address the ways that culture can influence our understanding of the law and legal institutions. U.S. law schools typically operate from the assumption that there is a single dominant culture and, in that mistaken approach, fail to help law students develop the tools to see and appreciate cultural signals and differences. Law schools simply squander the opportunity to teach law students ways that they might begin to integrate cultural awareness and competency into their professional experience. Finally, to the extent that legal education addresses professional values at all, it does so in a limited context: ethics classes. But decisions and questions that implicate a lawyer’s values abound, and by insisting that such questions arise only in the context of ethical rules or guidelines fundamentally weakens law students’ ability to recognize that their choices, behaviors, and perspectives reflect and convey values. At the start of students’ careers, law schools should help them begin to think about who they will be as lawyers and how they can begin to develop a purpose-driven trajectory for their careers. However, law schools do not provide this in-depth career planning.
In recent years, questions about the efficacy and value of a legal education have entered the public dialogue. The general public has begun to question the worth of a legal education given its expense. Governing bodies such as the American Bar Association (ABA) and the Association of American Law Schools (AALS) have received a share of the criticism for their lack of oversight and standardization of law schools. The positions the ABA takes in the next few years may be key in determining the general future of law schools, deciding whether they will be more practical or will remain more theoretical and doctrinally focused. But even without the mandate from these bodies, law schools need to reimagine what they are doing to prepare lawyers for their roles in the workforce or they will continue to put clients at risk.
When people ask about the purpose of a legal education, the standard response is that a legal education prepares students to “think like a lawyer.”11 The meaning of this well-worn phrase has long been the subject of considerable debate in the legal community. On one hand, thinking like a lawyer means being exposed to legal doctrine, understanding the methods of analytical thinking, and learning to raise critical questions in the law. The proponents of this perspective emphasize that law school is not in the business of training students for the workforce but is designed to introduce students to larger theoretical questions about the law and how it should operate. Thinking like a lawyer thus means that students are able to pose and examine the sorts of questions that will enhance understanding of the law’s potential, intersections, and limitations. In effect, this casts law school as a doctoral program in the law.
On the other hand, thinking like a lawyer involves exposing students to the practice of law, often through clinical education or experiential learning. The intent is to bridge the gap between theory and practice. Proponents of this position argue that a legal education must teach practical skills to prepare students for the demands of the profession. Students should learn basic skills such as client interviewing, negotiating, legal research, and writing. Skills such as working with statutes, administrative rules, complex factual records, and treaties are also integral to a comprehensive legal education.12 Students often get the opportunity to practice these skills as part of the law school’s social justice mission. Many schools breathe life into that mission by finding ways to serve the communities located around the law school and offering the services of students to help traditionally underrepresented segments of those communities. The practical skills theory also contends that teaching students how legal institutions actually operate is key to preparing them for practice.13 In essence, proponents of the practical emphasis in legal education stress that law school ought to prepare students not just to think like lawyers but to be lawyers.14
What does the standard debate miss? A legal education has the obligation to do more. It must prepare students to lead. Given that large numbers of lawyers become leaders, law schools must openly acknowledge and embrace their role in helping their students understand the dynamics of leadership. It is not enough for law schools simply to claim that they mold future leaders and policy makers. They must consider the skills such leaders will need and give students opportunities to learn and practice them.
NOTES
1. Dan Slater, Barack Obama: The U.S.’s 44th President (and 25th Lawyer-President!), WALL ST. J. (Nov. 5, 2008), http://blogs.wsj.com/law/2008/11/05/barack-obama-the-uss-44th-president-and-24th-lawyer-president/.
2. State of the Congress 2013, MEASURE OF AMERICA, http://www.measureofamerica.org/113-congress-infographic/ (last visited Dec. 20, 2017).
3. Menachem Wecker, Where the Fortune 500 CEOs Went to Law School, U. S. NEWS & WORLD REP. (June 26, 2012), http://www.usnews.com/education/best-graduate-schools/top-law-schools/articles/2012/06/26/where-the-fortune-500-ceos-went-to-law-school.
4. See, e.g., Derek Handova, How Can Lawyers Become Tech Company CEOs?, IPWATCHDOG (Sept. 22, 2016), http://www.ipwatchdog.com/2016/09/22/lawyers-become-tech-company-ceos/id=72651/; Ten Current CEO-Lawyers, BITTER EMPIRE, http://bitterempire.com/ten-current-ceo-lawyers/ (last visited Dec. 20, 2017).
5. Ten Current CEO-Lawyers.
6. Id.
7. Id.
8. Benjamin Spencer, The Law School Critique in Historical Perspective, 69 WASH. & LEE L. REV. 1949 (2012), http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2017114.
9. Id.
10. Nancy L. Schultz, How Do Lawyers Really Think?, 45 J. LEGAL EDU. 57 (1992).
11. Wayne S. Hyatt, A Lawyer’s Lament: Law Schools and the Profession of Law, 60 VAND. L. REV. 385, 389–390 (2007).
12. Robert W. Gordon, Lawyers, Scholars, and the “Middle Ground,” 91 MICH. L. REV. 2075, 2108–2109 (1993).
13. Id. at 2109.
14. WILLIAM M. SULLIVAN ET AL., EDUCATING LAWYERS: PREPARATION FOR THE PROFESSION OF LAW 127–128 (2007).