Black Letter Practicality and Law School


One of the more popular notions around “modern” law schools today is that the traditional practice of teaching “Black Letter Law” (that is, teaching students what the law actually says) is, at best, only a tangential concern. What students really need, the modern theory goes, is “practical experience.”

Of course, we can’t simply throw students into an actual courtroom and have them “give it the ol’ college try” (well, technically we could, and it would likely be just fine, but the ABA gets all testy about that sort of thing and most schools like being accredited). So how do we get students something that looks superficially like the experience they will need?  ”Skills” courses, of course.

Law schools are pushing students towards skills courses with increasing fervor on the theory that controlled classroom environments are adequate substitutes for real-world experiences with difficult clients or complex ethical situations. If only students spent more time working through “simulations” (which are, with due respect to Douglas Adams, almost, but not quite, entirely unlike reality), those students would understand exactly how to handle a director-level corporate client who has not been contradicted at work since 1978.

There is, after all, no better preparation for the chaos of reality than a thoroughly contrived “case” where the shred of suspension of disbelief depends upon the acting abilities of a student partner who is so unbelievably socially inept that he (or she) voluntarily applied to law school. Don’t believe anyone who points out that a 1968 copy of “How to Win Friends and Influence People” contains more (and often better) advice; the class is many orders of magnitude more expensive and therefore obviously superior. So sayeth the law school.

They sayeth wrong(eth).

Knowing the Black Letter law inside out and backwards is the foundation of everything that you’ll be doing. Knowing the Black Letter law is the difference between creating an estate plan which allows a client to fully utilize every available credit and one which involves your client’s children suing you for malpractice. It’s the difference between allowing your client to avoid stupid “gotchas” in the law and having your client sue you for malpractice.  It’s the difference between being able to win a case for your plaintiff or having your client sue your for malpractice.  (I think the point here is starting to get through.)

Black Letter law is the font from which everything else flows, especially with the current trend toward codification of nearly everything.

Of course, not every Black Letter class is equal. ConLaw 57, The Third Amendment, for example, is probably a not the most efficient way to spend your time. Estate and Gift Taxation, Employment Law, or Criminal Procedure, however, are going to be quite useful. And your approach to the class is important too. The gunners don’t get it right.

For example, say you have a Business Orgs question about an unscheduled meeting with an eight-member board, four of whom are available, one is in a local hospital for “minor surgery”, one is in Europe, and two are mountain climbing with malfunctioning satellite phones but internet at the base camp. The gunner answer involves things like provisions in the articles for a three-member quorum, authorization of the use of text messaging over the internet, Skyping with the mountain climbers, or waking up the guy in Europe for a conference call. The practical answer is to have the board meeting in the hospital room; fancy over-complicated answers look impressive but tend to, well, kind of suck in the real word.

Where the rubber meets the road, there is nothing—absolutely nothing—half so much worth doing as simply messing about with Black Letter law. There’s just no other way to understand the boundaries of what can and cannot be done and which options are realistically available to your future clients. Anyone can learn how to deal with people, listen with empathy, and coach someone through a rough spot while maintaining personal integrity. If you want to learn how to speak well in front of people, join Toastmasters. If you want to learn how to interact with people, take a Dale Carnegie course. Those resources will always be there. They are not going away and they take little enough time that you can incorporate them into even a law school student’s or practicing attorney’s schedule.

Once you’re out of law school, though, there really aren’t great places to get instruction on Black Letter law. Now is your chance. Use it.

Post image from Shutterstock

The Northwest 3L spent 6 years in the "real world" cultivating cynicism and a dim view of humanity in the telecom and software consulting industries before deciding that the best way to deal with having zero debt in a down economy was to load up on student loans and truck on off to law school. Asked for a description, his friends replied, "says inappropriate things." Grainy, out-of-focus film footage suggests that he attends law school somewhere in the Pacific Northwest.

1 Comment

  1. Ellen

    February 19, 2012 at 10:22 am

    I ENJOY blaeck letter law. It is alot clearer then other types of law. And if we learn this, we will be abel e to handel alot of diferent things in law. FOOEY on other kind’s of law! FOOEY!

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