Friday, November 2, 2007

"Training Law Students for Real-Life Careers"...or Deja Vu All Over Again

That's the title of a New York Times story from a couple of days ago concerning the latest round of ill-researched and probably largely pointless curricular reform going on at some law schools; an excerpt:

"When you haven’t changed your curriculum in 150 years, at some point you look around,” said Elena Kagan, the dean of Harvard Law.

The impetus for the changes is the sense that what has been taught and how it has been taught may be “embarrassingly disconnected from what anybody does,” Ms. Kagan said.

Those concerns were highlighted in a report on legal education published this year by the Carnegie Foundation. The report found that law schools generally stressed analytic training over ethical, interpersonal and other skills that could help them practice law after graduation.

“What certainly stands out is that the dominant model in law school education is focused almost entirely on the development of thinking like a lawyer,” said William Sullivan, a senior scholar at the Carnegie Foundation and the lead author of the report. “And by that, what they mean is being able to be good at legal analysis....”

For years, law students have focused on judicial opinions, explaining why a case was decided in a particular way. But many lawyers today must read laws and regulations that have not been explained by a judge and advise clients on how to comply with them.

So both Harvard Law and Vanderbilt University Law School have modified their traditional first-year requirements, like contracts, civil procedures and torts, to include a class that teaches students how to interpret statutes and regulations.

Stanford Law and other schools are also making it easier for students to take courses in other graduate-level programs at their universities, recognizing that lawyers often need specialized knowledge in areas like business, technology, biology, international relations, engineering and medicine. Many lawyers today practice across international borders and must be familiar with foreign laws and legal systems....

Happily, Orin Kerr (George Washington) shares the perspective of his senior colleague Richard Pierce, Jr. (of administrative-law-treatise fame, among many other scholarly contributions), who has taught at many different law schools during his 30-year career:

The Times story is a laugher for those of us who have been around for a while. It reports on "curricular innovations" that are being adopted by many schools. Number one is a required first year course in legislative and administrative law. Jerry Mashaw and I were just yuching it up about this innovation. Jerry, Dick Merrill, and I were victims of this new idea when UVA adopted it in 1969. UVA abandoned it after 5 years. Students hated it, and profs complained that students learned much less ad law when they were required to take the course and when they lacked basic building blocks like civ pro and con law.

I was victimized a second time by a variation on this theme when Columbia hired me in 1989 to teach its new required first year course in foundations of the regulatory state. That was one of 3 new required first year courses Columbia introduced that year. None of the 3 survive today. A student poll ranked them 3 of the 4 courses students disliked the most. (Thank God for Trusts & Estates)....

When I was at Tulane, we had a fascinating debate about a proposed externship program. The ABA had just concluded an investigation of externships that found that most students were not supervised and were assigned tasks like copying documents or acting as messengers. Moreover, two student externs at a Florida law school had just been indicted for playing minor roles (basically bagmen) in extensive operations run by high-ranking state officials who were engaged in narcotics distribution. Our debate at Tulane focused on nice questions like: how could we explain a decision to refuse to provide externs to various important state agencies that we had reason to believe would use the externs to participate in criminal conduct? We concluded that we could not adequately explain such decisions, and we rejected the proposal to create an extern program.

The fact is that (1) being "trained to think like a lawyer"--which really means (a) honing analytical and argumentative skills of general applicability (legal reasoning is distinguished only by the fact that arguments from authority are not fallacious) in the context of (b) law-specific institutions, rhetoric, and categories--and (2) learning substantive rules and principles in different areas of the law, are tasks that law schools can actually discharge, and that good law schools do discharge.  Certainly there should be substantial clinical opportunities (and a variety of them) and the like, but the perennial idea that law schools need curricular reform strikes me as being ill-motivated by any actual evidence.

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