Apprenticing for a Flourishing Life in the Law: The Virtues of Judicial Clerkships

March/April 2015

By Professor Michael S. McGinniss

In 2007, the Carnegie Foundation for the Advancement of Teaching published a report entitled Educating Lawyers: Preparation for the Profession of Law.1 Commonly referred to in academic discussions as the Carnegie Report, its recommendations for reform were premised on understanding legal education as a process of "apprenticeship."2 It described three aspects of this process:

• the cognitive apprenticeship, concentrating on legal doctrines and the profession's "way of thinking"3
• the practical apprenticeship, pertaining to "the forms of expert practice shared by competent practitioners"4
• the apprenticeship of "identity and purpose," which is directed to the "ethical standards, social roles and responsibilities that mark the professional," and to the formation of a law student's own identity within the profession.5

How may this progression after law school most effectively be accomplished? If the practice of law is a craft,14 then the principles of apprenticeship in other crafts should be of value to teach us about how a newly graduated lawyer may grow in mastery of the law.15 In his article "Law As Craft", Brett G. Scharffs recognizes the special connection between the relationship of a judge with a law clerk and the traditions of apprenticeship:

Perhaps it is not surprising that the place in the law where the ideal of apprenticeship still has some professional resonance is in the judicial clerkship. The judge, as master, guides the novice lawyer, as apprentice, through the early stages of developing professional competence. If judging is a craft, then in the clerkship we should find evidence of the ideals of apprenticeship.… A judge who is committed to the idea of viewing her work as a craft will treat her clerks as apprentices, and will see in the relationship the opportunity to pass on to succeeding generations the knowledge and skills pertaining to the craft of the law.16

As Scharffs notes, "Crafts are learned first and foremost by observing and following the example of others."17 A novice lawyer must learn to accept lived responsibility18 for clients and for the impacts of actions taken on their behalf; a good judge embodies lived responsibility for the law as it affects both individuals and society. A novice lawyer must learn to make principled decisions and to act with integrity in the face of a variety of pressures and uncertainties; a good judge exemplifies principled decision-making19 when confronting the distinctive challenges arising in adjudication. Because a judicial clerkship provides unique opportunities to observe and follow a judge's good example, such service is an ideal capstone to the law school experience in preparing a novice lawyer for life in the legal profession.

As with other crafts, acquiring expertise in law requires the novice to develop the skills and technical prowess necessary to accomplish its component tasks. In Aristotle's Nichomachean Ethics, the word translated as "craft" is techne,20 which carefully distinguishes it from practical wisdom (phronēsis).21 For Aristotle, practical wisdom is both an intellectual and a moral virtue22 concerned with deliberation, choice and action that "enables its possessor to make good choices with respect to practical matters."23 Aristotle regards techne (craft) as an intellectual virtue of a person "skilled in making or production."24 As adjudication or as practice, the law is fully realized as a "craft" to the extent the judge or lawyer combines and exercises these two virtues (techne and phronēsis).25 Scharffs points to an additional reason why both of these virtues are essential to good judging or lawyering:

Although Aristotle was not entirely correct in maintaining that craftsmanship does not involve habits of character, but only intellectual dispositions, there is a kernel of truth in Aristotle's claim. Craftsmanship involves dispositions such as patience, a love of deliberation, care in the use of materials and tools, and a respectful attitude towards the past, which can accurately be characterized as virtues of character. But in spite of this, there is a sense in which craftsmanship is an amoral ideal. Craft skills and craft dispositions can be used in the furtherance of worthwhile as well as objectionable ends. Practical wisdom, in contrast, depends explicitly and categorically upon virtue of character. Practical wisdom helps ensure that the craftsperson's ends will be right.26

Upon my graduation from law school in 1993, I was privileged to be the law clerk for Justice Randy J. Holland, who presently is serving an unprecedented third twelve-year term on the Supreme Court of Delaware. Holland is also a past president of the American Inns of Court and a long-time champion of its history, values, and ideals. The year of my clerkship was the most transformative experience of my professional life. It was truly an apprenticeship in the legal craft. In working with Holland, I observed a model of integrity in making principled decisions and of excellence in writing about them. Through his words and his example, he indelibly impressed on me the fundamental importance of good character and ethical conduct in the legal profession-a moral world in which judges and lawyers are entrusted with distinct responsibilities for how the law affects the lives, liberty, and property of others.

During my clerkship, I observed Holland's patience-with counsel in oral arguments, with court personnel both in and out of chambers, and with me. I witnessed his love of deliberation, as in the process of making decisions he scrutinized legal arguments with passionate reason.27 I saw the care he took in his preparation for consideration of appeals, including meticulous reading and research of the details of case precedents and statutes, and in the writing and revising of opinions and orders. In seeing his care, and his standards, I was inspired to perform my duties as law clerk with my own best thought and attention.28 I was also greatly affected by his "respectful attitude towards the past," as reflected by his scholarly interest and explorations of the history of the legal profession and its honorable traditions across international borders,29 in our nation,30 and in the state of Delaware.31

Most significantly, through the experience of clerkship I came to know Holland more deeply as a person whose character and actions manifest the virtue of practical wisdom, not only pertaining to the law but also on matters beyond the walls of the courthouse. I came to understand more profoundly the vital role judicial independence plays in sustaining the rule of law and serving the interests of justice.32 And from his example as an independent judge, as I practiced and studied the law in the years that followed, I was prepared to understand the cardinal value of a lawyer's independent professional judgment in representing a client. I found in Holland a leader, a teacher, and a mentor.33 My own decision to become a full-time law professor was inspired by my desire to pass on to the next generations of lawyers the professional knowledge, skills, and values that I began to cherish in a new and special way during my clerkship.

If law is a craft, its tools may be wielded by hands guided by a virtuous character, or led astray by a vicious one. Exercising the moral virtues such as justice, courage and honesty-and deliberating, choosing and acting with practical wisdom-are essential to a lawyer's forming and sustaining a good character for the practice of law. When the fullness of its responsibilities are accepted and fulfilled by the law clerk and the judge in accordance with its best traditions, a judicial clerkship offers a novice lawyer an apprenticeship in the lawyering virtues and an enduring foundation for a flourishing life in the law.

Michael S. McGinniss is an Associate Professor of Law at the University of North Dakota School of Law in Grand Forks, ND, where he teaches Professional Responsibility, Evidence, Conflict of Laws and Advanced Legal Ethics. He is a master of the Randy H. Lee American Inn of Court.

© 2015 PROF. MICHAEL S. MCGINNISS. This article was published in the March/April 2015 issue of The Bencher, the flagship magazine of the American Inns of Court. This article, in full or in part, may not be copied, reprinted, distributed, or stored electronically in any form without the express written consent of the American Inns of Court.

Endnotes

1    William M. Sullivan et al., Educating Lawyers: Preparation for the Profession of Law (2007).

2    Id. at 25.

3    Id. at 28.

4    Id.

5    Id. at 28, 132-35. See generally Mark F. Kightlinger, Two and a Half Ethical Theories: Re-Examining the Foundations of the Carnegie Report, 39 Ohio N.U. L. Rev. 113, 155-85 (2012) (providing a helpful overview of the Carnegie Report's three apprenticeships).

6    Patti Alleva & Laura Rovner, Seeking Integrity: Learning Integratively from Classroom Controversy, 42 Sw. L. Rev. 355, 356-57 (2013) (footnotes omitted and emphasis added).

7    See Sullivan et al., Educating Lawyers, supra note 1, at 117 ("The prime learning task of the novice in the law is to achieve a basic acquaintance with the common techniques of the lawyer's craft.").

8    See Id. at 115 ("Law schools, we believe, need to give the teaching of practice a valued place in the legal curriculum so that formation of the students' professional judgment is not abandoned to chance."). See also Id. (defining "professional judgment" as "the ability to size up a situation well, discerning the salient features relevant not just to the law but to legal practice, and, most of all, knowing what general knowledge, principles, and commitments to call on in deciding on a course of action").

9    See Kightlinger, supra note 5, at 164 (citing William M. Sullivan, Work and Integrity: The Crisis and Promise of Professionalism in America 104-05, 254 (2d ed. 2005)).

10  See generally Michael S. McGinniss, Virtue and Advice: Socratic Perspectives on Lawyer Independence and Moral Counseling of Clients, 1 Tex. A&M L. Rev. 1 (2013) (discussing "independent professional judgment" and "candid advice" under Rule 2.1 of the ABA Model Rules of Professional Conduct through the lens of moral philosophy, including the life and thought of Socrates of Athens).

11  In Spring 2014 at the University of North Dakota School of Law, our students completed a newly required first-year course called Professional Foundations. It is a team-taught class that is specifically designed to cultivate in students the habit of self-reflection about core professional qualities for the practice of law. Professor Patti Alleva and I served as the inaugural course coordinators. See Professional Foundations: An Innovative Component of the First-Year Curriculum, http://law.und.edu/students/general/profound.cfm (last visited May 5, 2014).

12  See Michael S. McGinniss, Virtue Ethics, Earnestness, and the Deciding Lawyer: Human Flourishing in a Legal Community, 87 N.D. L. Rev. 19, 31 (2011) (explaining that "[f]or Aristotle, the ultimate telos, or supreme good, for human beings is eudaimonia, which is often translated from the Greek as 'flourishing'").

13  See Id. at 31-34 (discussing Aristotle's virtue ethics, including "practical wisdom," and their application to the legal profession). See also Daisy Hurst Floyd, Practical Wisdom: Reimagining Legal Education, 10 U. St. Thomas L.J. 195, 203 (2012) ("Aristotle believed that a person who knows how to use the virtues 'practically,' to apply them in concrete situations, is wise.").

14  See generally Brett G. Scharffs, Law As Craft, 54 Vand. L. Rev. 2245, 2447 (2001) ("Law is neither an art nor a science. It is a craft."). See also Anthony T. Kronman, The Lost Lawyer: Failing Ideals of the Legal Profession 295 (1993) (defending and urging the restoration of the once prevalent "idea that the law is a craft demanding a cultivated subtlety of judgment whose possession constitutes a valuable trait of character, as distinct from mere technical skill, and which therefore justifies a sort of pride that the possession of such a trait affords").

15  See Scharffs, supra note 14, at 2335-45.

16  Id. at 2334.

17  Id. at 2322.

18  Cf. Sullivan et al., Educating Lawyers, supra note 1, at 121 ("Assuming responsibility for outcomes that affect clients with whom the student has established a relationship enables the learner to go beyond concepts, to actually become a professional in practice. Taught well, it is through this experience of lived responsibility that the student comes to grasp that legal work is meaningful in the ethical, as well as cognitive, sense.").

19  Scharffs, supra note 14, at 2248 n.7 (quoting William A. Bablitch, Reflections on the Art and Craft of Judging, 37 Judges' J., Winter 1998, at 40, 40 (1998)).

20  Id. at 2263.

21  Id.

22  Id. at 2320 n.400 ("The Greek term [for moral virtue] is arete ethike, sometimes translated as 'excellence of character.'").

23  Id. at 2264.

24  Id. See also Id. at 2267 (observing that Aristotle defined techne as a "reasoned state of capacity to make").

25  See Id. at 2245.

26  Id. at 2271-72 (footnotes omitted).

27  Cf. McGinniss, Virtue Ethics, supra note 12, at 43 (describing the "positive charges" of the moral philosophy of Søren Kierkegaard as being "[t]o engage the heart in seeking the truth with earnestness, to engage the mind in thinking with passionate reason, and to exercise freedom of will in taking ethical responsibility for one's decisions and then acting on them").

28  Cf. Thomas L. Shaffer, On Being a Professional Elder, 62 Notre Dame L. Rev. 624, 632 (1987) (observing that "[p]rofessional craftsmanship entails colleagueship that comes from learning, at the hands of an elder, demanding standards and relatively rigid attention to telling the truth about our work").

29  See, e.g., His Honor Eric Stockdale & Justice Randy J. Holland, Middle Temple Lawyers and the American Revolution (2007).

30  See, e.g., Randy J. Holland, Anglo-American Templars: Common Law Crusaders, 8 Del. L. Rev. 137 (2006).

31  See, e.g., Randy J. Holland, Delaware's Destiny Determined By Lewes (2013).

32  See Hon. Randy J. Holland & Cynthia Gray, Judicial Discipline: Independence with Accountability, Del. Law., Summer 2011, at 22 ("Judicial independence is a cornerstone of our legal system. The sine qua non of judicial independence is the freedom to decide cases without fear of retribution.").

33  See McGinniss, Virtue Ethics, supra note 12, at 53-56 (discussing the "long and worthy tradition of the good mentor" and its importance to the flourishing of a legal community). See also Patrick J. Schiltz, Legal Ethics in Decline: The Elite Law Firm, The Elite Law School, and the Moral Formation of the Novice Attorney, 82 Minn. L. Rev. 705, 721-22 (1998) (emphasizing that "as important as mentoring is in teaching young attorneys to practice law well, it is far more important in teaching them to practice law ethically").