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March 24, 2008
Washington & Lee's Radical Transformation of the 3rd Year of Law School
Most talk about 'curricular reform' in legal education is usually quite modest--a few more clinical offerings here, a new course in the first year there. Washington & Lee, by contrast, has adopted a really quite radical revision of the curriculum. The details of the new third year at Washington & Lee are here. A brief excerpt to give a flavor of how dramatic a change this is:
The new third year curriculum will be entirely experiential, comprised of law practice simulations, real-client experiences, the development of professionalism, and development of law practice skills.
Each semester will begin with a two week immersion course in practice skills, one focusing on office and transactional practice skills, the other on litigation and conflict resolution skills.
All students will participate in a year-long professionalism program that will include the participation of practicing lawyers and judges and assist students in the development of professionalism in all its aspects, including legal ethics, civility in practice, civic engagement and leadership, and pro bono service.The core intellectual experiences in the third year will be presented entirely through a mix of practicum courses that simulate legal practice environments, legal clinics, and internships....
Students will not study law from books or sit in classrooms engaging in dialogue with a professor at a podium. The demanding intellectual content of the third year will instead be presented in realistic settings that simulate actual client experiences, requiring students to exercise professional judgment, work in teams, solve problems, counsel clients, negotiate solutions, serve as advocates and counselors—the full complement of professional activity that engages practicing lawyers as they apply legal theory and legal doctrines to the real-world issues of serving clients ethically and honorably within the highest traditions of the profession.
One law professor at another school, who called the proposal to my attention, wrote to me with some reasonable concerns about this curricular change:
If 100% practice is the way to run the third year, isn't the obvious answer to make a J.D. program a two year affair? Also, it creates horrible choices for students, who have only the 2L year in which to take electives. If Jurisprudence conflicts on the schedule with Evidence, you have to take one or the other, but you can't take both. (W & L has a small faculty and on small faculties many electives are offered only one time per academic year, and in some cases only every other academic year.) Similarly, even if the conflict is between Jurisprudence and Partnership Tax, it forces choices on students that they should not face. And, you also have to ask about how a practical curriculum will (must?) affect faculty hiring choices -- are traditional hiring criteria the appropriate standards for faculty for the 3L year? I'm guessing "no," on the theory that J.D./D. Phil. isn't likely able (or very much interested) in teaching a civil practice clinic or a practicum on drafting wills. . . Maybe there's some merit to this "reform" that I'm just not seeing, but it seems like a very risky, "all in" kind of move.
It is clearly very risky: if it succeeds, it will transform Washington & Lee into a leader in legal education, to which the top firms will flock for new hires; if it fails--because, for example, good students and faculty choose to go elsewhere--Washington & Lee may never recover as a top 30-35 law school with a quasi-national status. The risk, put simply, is that within the legal academy, interdisciplinary scholarship is the coin of prestige in the realm, which is why one finds schools like Stanford, under Dean Larry Kramer, touting initiatives like more JD/PhD programs, and why elite law schools hire almost exclusively interdisciplinary scholars. Washington & Lee is, as my correspondent noted, going to have to do very different faculty hiring in order to staff this ambitious new program. If it succeeds, students and ultimately employers will be the beneficiaries, and other schools will no doubt follow suit. But in the short term there is a real risk that Washington & Lee's reputation among legal academics may take a real hit.
Signed comments strongly preferred, as always. I am curious to hear what others--faculty, practitioners, and students--think about this initiative. (Post only once: comments may take awhile to appear.)
Posted by Brian Leiter on March 24, 2008 in Of Academic Interest | Permalink
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The change seems worth risking. The financial structure of major firms is continuing to change in directions inconsistent with law school curricula. (E.g., clients barring first year lawyers from matters or declining to pay for such work.) The supposition of extensive on-the-job training is getting harder to sustain.
Posted by: J. Bogart | Mar 24, 2008 6:07:24 AM
I think the change goes too far but it is a step in the right direction. I went to NYU Law School and for most of my classmates, the 3rd year was spent procrastinating on writing the "A" paper, a necessary requirement for graduating and thinking of easy classes to take.
I, believe that Washington & Lee's program would be better however if it were only one semester and it were optional. Most students have trouble fitting all of the courses they want to take into two years and would need at least an additional semster. Moreover, some students take demanding clinical classes in their third year and therefore, this program is unnecessary.
Posted by: Ian | Mar 24, 2008 6:38:53 AM
This seems like a low-road strategy to me. Even if we stipulate that the major goal of our pedagogy is to train lawyers -- and it's hard to dispute that point given the importance of tuition to nearly all of our budgets -- the question is what kind of lawyers are we training our students to be. The best schools have or should have as their goal training people to be outstanding lawyers (and ethical, responsible professionals?) over the course of a career. The new Washington & Lee approach, I hate to say, is more closely directed to training students to be the best first-year associates they can be. I'm quite sure that a student who goes through that program will, to coin a phrase, be "ready on day one" for the kinds of tasks that new lawyers do on day one. But I'm far less certain that a student who goes through that program will be a better lawyer over the course of a career. I doubt that law schools have much of a comparative advantage over practitioners in the kind of on-the-job, practical training that is the focus of the new W&L third year. As a result, I'm not sure the marginal benefit of an entire third year devoted to this sort of thing (over a more modest reform like, say, mandating all students to take at least one clinic -- a reform that could well make sense at a school that had the capacity to pull it off) is worth the opportunity cost -- a cost your correspondent describes well. As a pretty practically-oriented guy myself, my experience is that broad-minded, interdisciplinary courses can be crucial to giving students the tools they need to become and remain outstanding professionals over the course of a career. It's much easier to get broad-minded interdisciplinary learning in law school than in practice. Conversely, it's much easier to get practical skills training in practice than in law school. Law school should, of course, have a balance between interdisciplinary study, skills training, and doctrinal manipulation, but this proposal casts the balance so far toward the skills training side that I doubt it is the best for training people to be outstanding lawyers over the course of a career. If W&L were having placement problems (which I don't think they are), I could understand this focus on skills that are most useful early in a career. But I doubt it's a good strategy for top schools. Of course, I could be wrong, and if W&L's bet works out the school will be rewarded. That's the beauty of the market.
Posted by: Sam Bagenstos | Mar 24, 2008 7:08:58 AM
The change is consistent with the theory of legal education advanced in the Carnegie Report and the "Best Practices" volume. The minor point made by both reports relevant to the comment you quote is that extra courses, especially in the third year, add relatively little value if you assume graduates will be practicing lawyers. The answer to the other point about two years of law school is that students are not ready for practice after four semesters unless they "practice" (literally) first. I'm just reporting here, I'm not saying I agree with everything in the Carnegie Report which my faculty found underwhelming.
Posted by: Steve Griffin | Mar 24, 2008 7:19:08 AM
An optional experiential "track" is probably a good idea and I could even get behind the idea of a mandatory 3d-year professionalism class (depending on whether it was a worthwhile course and not just fluff). But requiring all 3Ls to participate will alienate those students whose interests might diverge--those interested in academia, for instance. (Yes, I realize W&L is not a leader in placing legal academics, but those students who might be interested in academia and might have chosen W&L now almost certainly will not.) I'm also curious what this will do for W&L's clerkship placements--are judges, particularly circuit court judges, likely to be impressed or interested in a student who has a year of "experiential learning" but has not taken Fed Courts, or Constitutional Crim Pro?
Posted by: k | Mar 24, 2008 7:22:40 AM
This program is an obvious sort of market response. Essentially it is transferring some training expenses from law firms to the law school. I gather W&L figures that assuming these costs will attract more top law firm recruiting of its students, which in turn will attract better students. Students may independently like it on the theory that they get a "leg up" on those from other schools in their first year of practice. I doubt this will succeed, but it's an interesting experiment.
Posted by: frankcross | Mar 24, 2008 8:05:16 AM
I had to reread the summary to be clear that this program is almost 100% classroom simulations, rather than Canadian-style articling. If I were a hiring partner in one of the D.C. firms that the W&L placement office (I assume) courts assiduously, I'd want to look at the teaching materials, to see how they fit with what goes on in my office. Will W&L create this stuff in-house, or buy what's out there, or fly in consultants? The plan seems shaky to me even if one starts with a purely vocational, as against an intellectual/interdisciplinary, focus. But I have to admire its boldness.
Posted by: Anita Bernstein | Mar 24, 2008 8:23:22 AM
Following on K's last comment, what I find worrying about W&L's initiative is not so much the loss of interdisciplinary upper level courses, but the lack of exposure to blackletter law in critical areas.
As a foreign attorney practicing in a Civil Law jurisdiction in a completely different market I may not be qualified to comment, but I wonder how future W&L students are going to spot issues that relate to substantive domains of Law that they have had no exposure to.
Conflict of Laws is a subject that may be illustrative of my worries: A transactional lawyer may not be a CofL expert, but he must at least know that the contract he is drafting may raise serious CofL issues. CofL is not a popular course, and it may be readily abandoned by the student body to make way for corporate, tax, etc.
I see W&L's initiative as coterminous with the rejection of traditional legal scholarship that has long taken hold of US Schools, which in my humble opinion is unwarranted.... At least in my experience, erudite knowledge of blackletter law is critical for legal practice. This may be endogenous to Civil Law jurisdictions however, so let me reinstate the caveat I mentioned earlier, I may be wholly unqualified to comment on this matter.
Posted by: Gustavo | Mar 24, 2008 9:12:02 AM
I applaud W&L's audacity and I look forward to discussions that, intentionally or not, illustrate the gulf between the interests (and objectives) of law professors, on the one hand, and, on the other hand, the day-to-day work of practicing lawyers and judges who stubbornly adhere to the doctrinal law game as a means of persuasion.
Given the opportunity for self-selection (and for most students, the truth of the aphorism that law schools scare 1Ls to death, work 2Ls to death and bore 3Ls to death), W&L may do good by those who choose to attend. However, the loss of electives will harm that small percentage of students who enter law school with one career path in mind and end up taking a new direction because they stumbled some area of thought in an upper-level elective course.
Posted by: Thom Muth | Mar 24, 2008 9:14:47 AM
I'm a third-year law student enjoying my last spring break. With less than a month left in law school, this is a rare issue that I feel eminently qualified to comment on.
I have probably taken more non-black letter law credits than the average law student (trial advocacy, clinic, judicial practicum, seminar on appellate advocacy, colloquium, and two separate semester-long research projects). From my perspective, there are two problems with W&L's proposal.
First, it undervalues non-black letter courses that are academic rather than practical in nature. As a second year student I took 3 credits of "directed research" which resulted in a published article. Now I'm taking 6 credits of "senior research" and working on another article. It doesn't seem like there would be room for these kind of experiences at W&L now - not even in the second year, because students will be forced to cram every single black-letter elective into those two semesters. And what about colloquia courses? They don't seem to fit in either.
This brings me to my second objection. Not only will this make it next to impossible to schedule non-black letter courses that are academic rather than practical, but it will also make it even more difficult to fit in practical courses and black letter courses! I worked hard to juggle my schedule every semester for the past 2 years in order to fit in all the electives - black letter, practical, and academic - that I wanted to take. It would have been absolutely impossible to do without the flexibility of being able to take a clinic in my second year and black-letter classes in my third year. And the bigger problem isn't just lack of flexibility. It seems like there will be a net loss in credits available for black letter and academic electives because of the year-long "professional skills" course. Maybe these "professional skills" are what employers are calling for, but it's not the reason that top students go to law school. The top students go to law school for the academic rigor and intellectual stimulation. If W&L's goal is to become somewhat of a "trade school" churning out lawyers adept at the non-legal aspects of practicing law, then maybe this is a good idea. But it is not going to help them attract students with more academic aspirations.
Posted by: Sean Siekkinen | Mar 24, 2008 10:20:48 AM
It is helpful to add this statement to those already quoted:
"Practicum courses will span the array of traditional legal subject matter: antitrust, banking, corporate finance, securities law, tax, family law, environmental law, criminal law, employment law, intellectual property, estate planning, media law, civil rights and civil liberties practice—in short, anything and everything that might be offered in a traditional law school course."
Some materials covered in the upper level curriculum are amenable to being taught this way. Indeed, they may best be taught this way. An example is commercial torts. Employment law may be another example. Examples are not limited to private law. I also think this would be a fruitful way to teach taxation of financial transactions or tax-influenced M&As. The practicum approach would seem well-suited to having the students begin to think about how sophisticated transactions are shaped by tax law (focusing on a complex slice), accounting, and finance. Other courses are not amenable to being taught this way. Partnership tax comes to mind. Secured credit may be another example. These are complex, highly artificial conceptual systems for which there is significant value to understanding the system.
Posted by: Mark Gergen | Mar 24, 2008 12:23:22 PM
I think the law professor quoted in this post raises two key issues:
(1) Why have the third year if it is devoted only to practice? If W&L feels that the "law" can be taught in two years, why not send students forward to "practice" with the law firm itself?
(2) By having only one year of electives, a student will often be forced to chose between taking important classes. It also virtually eliminates the ability of the law student to venture beyond her central area of interest.
Posted by: Danny Henderson | Mar 24, 2008 1:48:49 PM
The comments on this thread are reminiscent of faculty debates in the sixties and seventies (for those who remember them) over the relative merits of clinical education and the ease with which clinical courses could be integrated as a full partner into the law school curriculum. Clinical instruction has been given quite a bit of room over the years to get up to speed, and while it has had its successes, I doubt that few would say clinical clinical courses are the intellectual center of their institutions. There are, of course, exceptions. The problem of finding teaching materials on which to base a W&L type program, identified earlier by Anita Bernstein, also presents a very serious hurdle for any school interesting in following W&L's lead. Anyone familiar with clinical teaching materials (and I have spent a lifetime working with them, as well as with casebooks), would have to admit that they do not do a good of reproducing, explicating, or criticizing the world of law practice, particularly Biglaw practice to which large percentages of our students aspire, wisely or not. Such materials will not support the same kind of sophisticated thinking one finds in jurisprudence, policy, and advanced doctrinal courses that now populate the elective curriculum of the third year. Their novelty may maintain interest at first, but over time the lack of any truly sophisticated theoretical dimension will cause students to criticize such courses in the same way they now criticize third year instruction generally. Criticism of the third year, either as too boring, arrid, or simpleminded, is just a law school fact of life. (That is an empirical claim, not a theoretical one.) Faculties get only to choose which criticism they are most willing to live with, not with or without criticism. For all of its downside, it is best if a law school chooses ideas over experience. The former can be used to configure the latter, but it does not work the other way around (at least not without great cost). In the end, W&L's new curriculum probably is not so much a reform as a marketing device designed to exploit the widespread perception among members of the bar that legal education has become too disconnected from the world of law practice, or a heartfelt response to the criticisms of the Carnegie Report which, unfortunately, I also agree are underwhelming. It makes for good end-of-winter blog material, however, while those of us in the north are waiting for the real trees to bloom.
Posted by: rjc | Mar 24, 2008 2:46:54 PM
Washington & Lee's program is dramatic and exciting -- and educationally sound. It is based, as I understand it, on the premise that professionally rigorous and intellectually challenging learning can take place in context as well as in the socratic classroom and the seminar. This is not a new understanding at W&L, where seminars have been offered in the context of complex statutory drafting seminars; in small group courses where students work on teams of 4 or 5 in parallel with a team conducting large litigation with a firm such as Hunton and Williams (with access to discovery, etc); where "clinics" consist of (1) a Black Lung Disease group representing vicitms at a site in W. Va and proposing regulatory change at the state and federal level, and (2) a Virginia Capital Case group working with lawyers in death penalty litigation. There are other examples, too, but the point to be made is that experiences in context that develop high skills and intellectual challenge have been done at the law school for many years and with great success. The law school is not undertaking a wholly untested experiment.
It should be noted, too, that W&L's very talented faculty is not small -- it is about 40 strong --but it's student body (very highly qualified) is very small -- 350 total. The first two years will provide ample opportunity for basic courses, advanced courses, seminars and specialty courses, and everything a very good national law school should provide. And those two years will be largely uninterrupted by many of the hit and miss skills and experiential courses that many law schools offer grudgingly and, frankly, not too well.
Finally, the faculty is filled with very productive and well respected scholars who are also very, very devoted teachers.
If any law school has the faculty, the alumni, the students, the scale of education, and the resources to undertake this bold and very costly program, it is Washington and Lee. W&L is also bold enough to try something new and dramatic because, at base, it seems to be the right thing to do.
Finally, I should disclose that I was the dean at W&L between 1988 and 1994 and a faculty member thereafter until I returned to Iowa in 1996.
Posted by: Randy Bezanson | Mar 24, 2008 2:54:20 PM
I don't really think a move to more clinicaly-based teaching, on its own, is going to attract more hiring attnetion from "elite" law firms. Elite law firms don't seem to mind spending tons of money training new associates, and consistently hire from the best schools, regardless of the school's clinical focus or a student's clinical background. Thus, the only way this move will help W & L with elite firms is if the move creates a rise in ranking.
Posted by: Adam Shajnfeld | Mar 24, 2008 3:37:03 PM
Legal education need not and should not follow a single model. Many excellent liberal arts colleges--Amherst, Swarthmore, Williams, to name but a few--do not follow a research university model for undergraduate education yet they offer a superb education premised on very close student-faculty interaction in which students produce closely-supervised work at an intellectually high level. Faculty at such schools, moreover, participate in scholarly conversations at an extraordinarily high level. Such outstanding teaching and scholarship are not at odds but form two core dimensions of institutional identity and mission. W&L' s small scale allows it to pursue a very personalized model of teaching in which students receive a great deal of individualized instruction, both in but also outside the classroom. My Business Planning capstone course follows substantive law courses in corporations, partnerships, securities regulation, commercial law, and tax, and permits a far more in-depth, theoretical, and intellectually demanding study of subjects--yes, practical subjects such as drafting an LLC operating agreement and handling complex M&A transactions, and attending to pervasive PR subjects in the business law setting--where students generate the work. The pedagogical reality is that students pay far more attention and dig deeper intellectually when they must produce the written product, rather than listen and write a final exam(a 3-hour exam not being a written genre that practicing lawyers create). The false dichotomy between all theory and more context-based education is just that. W&L's 3L reforms are best understood as MORE demanding of students from an intellectual and doctrinal standpoint because students see more clearly the need to learn at a deeper level in order to express a considered judgment and opinion--their opinion-- in written form. Moreover, the professioanlism dimension is designed to move beyond the often-tired, standalone PR course to a genuine, sustained exploration of what it means to live one's life in the law, with all the challenges, responsibilities, and opportunities that entails. As to recruiting, do we really think Carleton, Amherst, and other elite colleges have trouble attracting top-notch teachers who genuinely wish to closely interact with bright, eager students? Of course not, and neither will law schools who combine demanding course work with a requirement that students carefully write(and rewrite)in a genre that places their views on the legal line. Let's reclaim the delights of teaching. Lyman Johnson
Posted by: lyman johnson | Mar 24, 2008 5:48:39 PM
W&L has to be commended for doing something different, especially cutting directly against the flow of the so-called "elite" law schools. The present trend is to de-law law school, at least at the "elite" level schools and W&L appears to be trying to re-law law school at their school. Harry Edwards may not be alone in fearing that present trends in legal education will kill the goose that lays the golden eggs. So, having a direct challenge to the present heterodoxy will be fun to watch, no matter what happens.
Posted by: Mike Zimmer | Mar 24, 2008 6:01:43 PM
I appreciate Professor Johnson's informed perspective on the new Washington & Lee initiative. He is also surely right that excellent liberal arts colleges like "Carleton, Amherst, and other elite colleges" do not "have trouble attracting top-notch teachers." I would note, however, that in the other academic discipline I know well, namely philosophy, it is very rare for newly minted PhDs with a choice to pick faculty positions at the top liberal arts colleges over research universities with graduate programs, even if those graduate programs are not highly ranked. Philosophy is, admittedly, different in an important respect: namely, that even excellent undergraduates do not do work at the same level, usually, as graduate students, which for a young philosopher with a substantial research agenda, makes being at a research university, rather than a liberal arts college, importantly different. I don't have a firm sense whether the same dynamic is at work in academic law. I've taught at four law schools--Texas, Yale, Chicago, and San Diego-- and studied at Michigan, and my impression is that, in terms of student ability and intellectual ambition, there were noticeable differences between Texas and Michigan on the one hand, and San Diego on the other; and less pronounced, but still detectable differences between Yale and Chicago on the one hand, and Michigan and Texas on the other. I guess I am skeptical that these differences, though, are likely to be the cause of decisions by prospective faculty about whether to join Washington & Lee. My guess is the bigger issue will be with prospective faculty with JD/PhD-style research agendas, who may worry that a law school that has made such a bold commitment for the third year will not really have a role for more "academic" work, i.e., work whose audience is the academy, and not the bench or bar.
Posted by: Brian Leiter | Mar 24, 2008 6:02:12 PM
I'm a 2L at Baylor Law, and we have a very rigorous third year. I see it as having two major advantages. (1) When it's time to study for the Bar, we're not having to re-learn how to study after the 3L golf year. (2) The practical skills (hopefully) put us in a better position to practice law.
Posted by: Jeremy Masten | Mar 24, 2008 7:58:21 PM
I'm a 2L, and thinking back to what I would have thought as a prospective law student... if it works, and improves the school's placement at elite law firms, that's obviously a mark in favor of the school's plan. (I'd be surprised if it makes a substantial difference there, however.)
The bigger factor, it seems to me, is that if the incoming student is at all interested in academia (and can't get in to Yale, or even Texas), this automatically knocks Washington and Lee down a notch below currently comparable schools like Minnesota, Illinois, Iowa, and the like.
Posted by: Joe | Mar 25, 2008 7:56:06 AM
As Dean of Washington and Lee I have followed with keen and appreciative interest the conversation on Brian Leiter’s blog about our new program. As you would probably expect, the various points and counter-points raised in the blog largely mirror the intense and invigorating internal conversation here at Washington and Lee over the last six months, a conversation that included our full faculty, student body, hundreds of alumni participants, members of the profession, and academic colleagues from around the country. We are confident in the judgments we reached in wrestling with the issues, but whatever one may think of our answers, it is at least heartening to see that we were asking the right questions!
Here are a few reflections on some of the critical themes raised in the thread of postings regarding our new program:
--Intellectual and Theoretical Intensity and Depth.
We have never conceptualized this as a trade-off between intellectual and theoretical depth on the one hand and practical skills training on the other. In reaching the judgment that our practicum courses offer the opportunity to increase the intellectual rigor of courses, we have drawn from our own teaching experiences and the experiences of colleagues at other law schools who have experimented with these formants. Lyman Johnson has for years taught an intellectually demanding business planning course at W & L using this model.
This year, as a pilot example, I taught a practicum course entitled “The Campus and the Constitution.” The course is divided into three “cycles”: (1) Freedom of Expression and Academic Freedom on Campus; (2) Identity: Race, Religion, Gender, Sexual Orientation; and (3) Property, Process, and Structure of University Governance. Each cycle is coupled with a focus on development of a particular professional skill: (1) Client Counseling; (2) Advocacy; and (3) Negotiation and Policy Drafting. In past years I could easily have taught this course as research seminar, or as traditional classroom course with an exam, or some hybrid blend of both. What I have experienced in teaching it as a “practicum” is that I, as the professor, am no longer the epicenter of the learning experience. The student is. And all without any fall off in either doctrinal coverage or theoretical engagement. Indeed, I will make the claim that by forcing students to engage in counseling or advocacy or negotiation exercises in which advanced legal doctrines are tested against the hydraulic pressure of realistic settings, there is more opportunity for theory to emerge as a critical component of creative and sophisticated lawyering. To use one concrete example, in the “academic freedom” unit of the course students were forced, constantly, to confront fundamental First Amendment questions in the context of a larger debate about the identity of the modern university. (In a nutshell: the question was whether we should conceive of the university as a “super marketplace,” in which freedom from regulation based on content or viewpoint is even more robust than in society generally, or alternatively, whether the university is better conceived as a community of scholars, with an emphasis on both the concept of community and the concept of scholarship. Under this conception, notions of mutual respect, civility, and rationality in our discourse, objectivity, and intellectual rigor may invite us to rule out of bounds certain extremes of expression that are tolerated in the general marketplace, but not tolerable in an enterprise that embraces certain “academic standards” of objectivity, civility, and rigor.)
--Interdisciplinary Exposure, Coverage of the Legal Canon, Course Diversity.
There have been many thoughtful postings asking about the extent to which this new model will reduce the opportunity for interdisciplinary scholarship and teaching, squeeze black-letter coverage of the core curricular legal canon, or reduce the diversity of electives available to students, particularly courses such as feminist legal theory, law and economics, critical race theory, or jurisprudence. We’ve pondered these issues internally at great length, and believe we have sound solutions. Our students will be required to take a jurisprudence or perspective research seminar with a major paper in their second year. We’ve done models of the entire three-year curriculum for eight “prototypical” students, including the student who wants a “liberal arts” style legal education well-suited to a possible career as a law student. Our judgment is that coverage of the legal canon (whatever it may be, exactly!) is not difficult. The opportunity for interdisciplinary exposure is actually enhanced, as it fits very comfortably within the new third-year model. There is some drop-off, in the sheer number of “course titles” a student will take. A student that might have taken 8-10 different courses in his or her third year will now take 5 or 6. This is a pedagogical trade-off upon which reasonable minds might differ. We’ve made the judgment to push quality over quantity, and to stop thinking of the third-year as a “menu of courses,” but as an experience in which the student’s intellectual and professional growth is placed at the core of our mission.
--A Full Year?
After much introspection, we decided to be bold, and transform the entire third year. We did this because we believe that in substance and in symbol, dedicating an entire year to integrative and contextual learning will give us the opportunity to be genuinely transformative.
--The Mission and Soul of Legal Education.
This is a period of ferment and experimentation in legal education, and we believe that it good for everyone. Our approach is not two years of “law school” and one year of “practice.” That begs the question of what “law school” means. Our approach is three years of education. Our students will follow a wide variety of career and paths, as public defenders, law professors, novelists, prosecutors, corporate lawyers, public interest advocates, political leaders, or business entrepreneurs. Whatever they choose to do, we believe we need to be more ambitious in our conception of what it means to provide them with the deepest and most engaging educational experience possible during the three years they are with us.
In the words of Daniel Burnham: “Make no little plans; they have no magic to stir men’s blood. . . Aim high in hope and work, remembering that a noble, logical diagram once recorded will not die.”
--Rod Smolla
Posted by: Rod Smolla | Mar 25, 2008 10:33:15 AM
I view this as a brave, but really quite rash decision by a bubble school to give up on the elite track by making an all-in bet on the trade-school model. If real shareholders were part of the equation, they'd rightly be up in arms.
Posted by: richard | Mar 25, 2008 11:20:23 AM
Our faculty wrestled with many of the questions raised here before we unanimously approved our new third-year program. The exclusive emphasis on "experiential" learning (a mix of simulations, clinics, and internships) will be academically and intellectually rigorous. Doctrinal learning will continue to be an important element – third-year students will have access to a range of advanced subject areas – but it will not occur as during the first and second years, with professors standing behind podiums and students absorbing the material and repeating it on examinations. The case method is an excellent way for first-year students to learn to "think like lawyers." It can continue to be useful during the second year as well. We think, though, that it is no longer an efficient or effective way for students to learn by the time they have reached their third year of law school. Instead, third-year students will need to think about doctrine in the context of carefully designed problems or the needs of real clients. They will begin to develop the ability to make sense for themselves of complex legal ideas and draw together relevant information from subject areas that would otherwise be thought of as separate and distinct. They will be required to exercise judgment and to confront ethical issues in concrete settings. We think third-year students are likely to find this kind of learning much more exciting and engaging intellectually than yet another year of the same kind of thing they've been doing since they first arrived at law school.
We don't think this approach to the third-year curriculum will make W&L less attractive to the most intellectually able and ambitious potential faculty hires. Certainly that has not been our experience this past year, when we have added a number of top-notch junior people who are all quite excited about the third-year initiative. Furthermore, the third year is of course only one of three; most of our faculty resources will continue to be devoted to the first and second years. And, going forward, we are committed to making sure that those who do teach in the third year receive appropriate credit so as not to interfere with their scholarly work. We will continue to value theoretical and interdisciplinary scholarship and teaching and will continue to include such courses and seminars in our curriculum. (At the moment, for example, we are considering adding a required course in transnational law to the first year and perhaps also another in legal theory. Second-year students will probably be required to write a substantial research paper, in connection with a seminar or working independently under a professor's guidance.) We see the new third year as a continuation of our long-standing commitment to teaching and think that potential hires who are excited about teaching as well as writing will continue to be attracted to W&L.
Posted by: David Millon | Mar 25, 2008 12:10:02 PM
My thanks to Dean Smolla and Professor Millon for their illuminating comments on Washington & Lee's new curriculum. I agree with a number of earlier posters that it is important to have good law schools undertaking genuinely innovative curricular reforms like this; we will all learn from the Washington & Lee initiative, and I am sure I am not alone in wishing the faculty and students there great success with this important experiment in legal education--maybe the most important one in our time!
Posted by: Brian Leiter | Mar 25, 2008 4:29:33 PM
As an actual student at W&L who learned of the idea after I accepted and started school, I thought my views might be of interest.
At first, I had the very same questions and concerns raised above. I had a view to become an academic and was very worried about what this might mean for people like myself (as I will almost certainly be given the option of whether to adopt the "traditional" track or not).
I continue to go back and forth on the idea. What is at issue, and the reason for my indecisiveness, is my three competing interests: jurisprudence, international law, and constitutional law. (As an aside, it may not be known that W&L also has a unique 1st year curriculum which does not include Constitutional law, but instead has Administrative Law and Criminal Procedure a la "bail to jail.") My concern is how I might squeeze two of each as well as evidence, professional responsibility, and something exciting (like trusts and estates) into that first year. Dean Smolla would correctly point out that that need not be squeezed into the second year, but would be easily satisfied as one of my practica.
The worry, of course, is "how?" That question would be no easier to resolve than if I had the full "traditional" third year with which to satisfy it (e.g. Will Prof. Drumbl, Sundby or someone else be visiting another school that semester and screw up my schedule?). In fact, my fears may be belied as the topics would not be as personality-driven as they currently are.
I would also point out that which has not been considered, it seems, by those critics who wonder at W&L's bravery, and that is flexibility. W&L has the size, I think, to be able to respond and adapt to problems and opportunities of improvement. Presumably, the current 2Ls who are, shall we say, less than excited by another year of paying to do work that they were paid to do over the summer, to actually feel like they had some genuine lessons to learn This rather than scouring the conventional wisdom of current 3Ls to find out who gives out the easiest A so they might boost their flabby GPA.
We can't all take the high road as Mr. Bagenstos would have us do, after all, but I rather think that the altitude of the road, in academics, depends on the altitude of the mind.
Posted by: Jason Ratigan (W&L 1L) | Mar 25, 2008 5:55:31 PM
Dean Smolla's statement could have been lifted verbatim from the clinical debates of the sixties. Somwhere, George Santayana is smiling.
Posted by: rjc | Mar 25, 2008 8:02:26 PM
As one of the incoming faculty members at Washington & Lee, who will also be teaching a third-year Climate Change Litigation Practicum, I wanted to add in how much support I have felt from the W&L community for my interdisciplinary, theoretical work. One of the things I found very attractive about W&L was that I feel valued holistically there. I already have received tremendous mentoring and engaged feedback on some of my most theoretical work, and at the same time, enthusiastic encouragement for my pedagogical commitment to active learning and my activism on issues of climate change.
The faculty went out of their way early on to integrate me with the university’s interdisciplinary program in environmental studies (I met the director of the program during my very first visit to the school). I am excited about the opportunity of having W&L colleagues in other disciplines who work on climate change as intellectual companions and as guest speakers in my course.
As a newcomer to this faculty, I have been very impressed by the level of thoughtful deliberation that went into this decision. I feel a great deal of confidence that the school will continue to provide a supportive environment for faculty and students who want to focus on interdisciplinary and theoretical research and writing, and encourage a much-needed pedagogical creativity.
I see these practicum courses as an opportunity to bridge what is at times an imposed dichotomy between theory and practice. In my climate change litigation course at the University of Oregon this fall, my students and I engaged in complex, conceptual questions about what this litigation means for transnational regulatory governance of climate change, as well as the nuances of developing litigation strategy in an emerging area of law. By embracing our ability to engage cross-cutting legal issues in context, these practicum courses open up exciting opportunities to enrich the classroom in ways that can enhance both scholarship and practice.
Posted by: Hari Osofsky | Mar 25, 2008 9:31:40 PM
As a prospective law student (of schools that include Washington and Lee), I'm interested in determining the extent to which W&L's particular application of practicum coursework renders false the distinction between theory and practice. If we need not choose between the two, many of the concerns here (save for those relating to flexibility) are diffused.
Based on the descriptions of practicum coursework provided in the comments here, it doesn't look like W&L is turning its third year into a "vocational" training program. It looks like they're simply providing professional context to the legal issues, concepts, and theory that form a standard curriculum.
One goal of providing such context is undoubtedly to teach us professional skills that we may perhaps learn better on the job (like negotiation and client counseling).
Another goal is to simply do a better job of serving the widely accepted ends of legal education. The professional context could help students hone and develop skills that we have always trusted our academic experience to impart on us. These are skills such as argumentation, the application of facts, theory, issues and concepts, and vision and instinct that lawyers use to quickly develop strategies and approaches to solving legal issues (read: problem solving and critical thinking skills). Moreover, the contextual application of course material will probably help students become truly *fluent* in their subject matter (as narrow in scope as it may be). That's something a standard curriculum should be doing anyway.
Personally, I don't care much for the first goal, but based on my own academic and work experience, I strongly believe in the second.
From Washington and Lee, I would like to know which goal is more of a priority in developing the new third year program I may one day take part in.
From some of the critics here, I would like to hear how their lines of criticism may change should Washington and Lee craft a practicum curriculum geared more toward application/gaining fluency rather than simply learning vocational skills.
(Sorry for the anonymous post- I have yet to hear back from all the schools I applied to)
Posted by: Prospective Student | Mar 27, 2008 7:47:55 AM
As a recent graduate of W&L, I watch this experiment with interest. First, I question the structure. Why institute a MANDATORY requirement that encompasses the ENTIRE third year? I attended a focus group related to third year seminars and this structure was not even suggested (most likely because the student body would have rioted). Two, I question the practicality of this arrangement. Doesn't the faculty realize that this structure will make it even more difficult to take a broad range of elective classes, including courses required to clerk for many federal judges? Third, in that same vein, you'll have to excuse my incredulity that the faculty would even consider adding more mandatory requirements (let alone "legal theory" and "transnational law.” I took several mandatory, useless classes in law school. Why add two more?). I find it ironic that W&L -- with its strong liberal arts tradition -- is moving increasingly to a uniform, “one size fits all” program of legal education. Fourth, I can only imagine that this arrangement will make the lives of already overworked journal board members even more impossible. Will the faculty ever realize that these individuals (and a few heavily involved clinic members) need to have a few easy classes, so that they can get their other work done?
Posted by: Anonymous | Mar 28, 2008 2:41:21 PM
My entirely biased (I participated in a clinic while at W&L Law) opinion is that this idea is fabulous!
Yay for Dean Smolla for expanding the already-wonderful clinics by offering even more options (there are already several -- how many law schools have black lung clinics?) and moving toward mandatory (a sizable portion of the student body already participates).
The only shock and surprise to me is that there are dissenters. To those people I say this: these programs are a competitive blend of practical skills clinics and intellectual seminar courses. They include research requirements, and they're some of the most fulfilling experiences one can have during law school.
We all knew that Mary & Uncas & the late great Groot rocked. Now everyone else will know it, too.
Posted by: Anne | Mar 31, 2008 5:04:01 PM
As a student currently in Baylor's century-old mandatory third-year program, welcome to the club.
I honestly think law students are being given short shrift by not being required to take one of these programs, and that's not just a "misery-loves-company" attitude. I haven't found that the required, heavily-practical program conflicted with my ability to take theoretical, abstract or purely academic courses, nor my ability to participate in externships or clinics, even clinics at other law schools, nor even my ability to compete on interscholastic advocacy teams. I haven't even had to take particularly heavy courseloads to fit in all of these courses within my first and second years. While some degree of prioritizing of courses might have to be done, it would be no more than usual, and the ancillary benefit of the kind of rigorous, demanding education that a practicum course provides is far greater than taking a wide variety of classes.
I do find some of the specifics of the program to be interesting and novel. For instance, I see no reason, as is currently the case at Baylor, to subject transactional students to a litigation-heavy third year practical course, although the skill sets do have a significant amount of overlap and a familiarity with both sides of the coin does have its own benefits.
What I am most curious to see is how students not used to this kind of rigor make the adjustment.
Posted by: Lane Haygood | Apr 1, 2008 10:30:43 AM
I was just accepted at W&L and a number of other institutions, and offered a scholarship at W&L.
The new curriculum sounds exciting, but I'm going to pass. I admit that I'm too inexperienced to know the full implications of what they're offering, but I simply don't envision my legal training as a vocational exercise. I'd like to think that the process is more cerebral than that. I was always told that the practice of law and the study of law bear little resemblance to each other, and perhaps that's skewed my perceptions of what I should look for in a legal education. But the new 3L program just doesn't sound like my particular brand of vodka.
Posted by: JR Lentini | Apr 8, 2008 3:18:36 AM
I'm a practitioner who flirts with academic law for funsies. I've also helped train quite a number of newbie lawyers. So I have a foot in 2 of the 3 camps.
I'm firmly on the anti-intellectual side. I don't understand why law school lasts more than a year. A first-year learns how to read a case, and absorbs the fundamentals of a legal argument. A classroom is an efficient environment for both. A classroom is not an efficient environment for anything else.
A second year law student doesn't know much law, but often enough, neither does a practitioner. A good practitioner is capable of OJT in almost any field of law that is not called "tax." After the first year, most good law students are similarly capable. They don't know this yet, but find out during bar exam cramming, when they absorb a semester's worth of legal doctrine in a few hours.
Or look at most forms of advanced postgraduate training. There is a year or two of classes, but everything after that is apprenticeship. This is particularly true in the natural sciences and engineering, but you also see this in medicine and I think the social sciences. I admit that you don't see this in the humanities.
There is much in the law school curriculum that one does not pick up in practice: jurisprudence, economics, political theory, and the like. There is a reason for this; few lawyers need them. It's finishing-school stuff: a smattering of ill-understood French and piano that appeals to the amour-propre of some members of the bar. For a very few lawyers, these topics are part of their clients' business, and they will learn them, as they learn their clients' business. The rest of us would do better with a semester of accounting.
So my only problem with the W&L experiment: why keep the traditional second year?
Posted by: Joe Sommer | Apr 9, 2008 10:50:26 AM
Like JR, I was accepted at W&L and offered a very competitive scholarship. Also like JR, I have decided to accept an offer from a different school. The most important factor in my decision was the new 3L curriculum.
I must admit, on the surface it sounds fantastic. However, as someone interested in pursuing a career in international law, I am planning on studying abroad for a semester. With W&L's new 3L, this would, in effect, give me only one semester for elective courses here in the U.S. Ultimately, though it was not an easy decision to come to, I had to go in a different direction.
I hope that W&L's new curriculum is a tremendous success, but for me I felt it was too risky to be a part of it.
Posted by: Ryan | May 1, 2008 7:31:13 AM
I will be applying to law schools this fall, and my numbers (low GPA/very high LSAT) point me to a choice between W&L and some "peer schools" mentioned here (Minnesota, Illinois). I am comfortable with either the South or Midwest, so my decision will come down to a simple debt vs. employability calculation.
Although W&L is known for generous scholarships, none of these schools offer a particularly sunny outlook on that score. I have no illusions of becoming an academic. I will be happy with any kind of moderately gainful legal employment. Hopefully, I can put myself on a path toward eventually fulfilling whatever potential I have as a litigator. If this third-year program has any practical effect, it will be helpful for someone like me. If I fall beneath the top quarter after my 1L year, I'll need all the local contacts I can get in my search for a small firm or government job in Virginia. In my view, more clinical experience can only maximize these types of opportunities. Additionally, under the new "income-based repayment" scheme, government lawyers can have their debt discharged after 10 years of small payments, so demand for even the humblest local government jobs is soon to skyrocket. If this clinical experience is directed toward local government work, it will give students a valuable advantage.
For a number of reasons, W&L does not feed many students into large law firms. Much of its student body seems uninterested in big firm life, and the regional Southern firms who go to W&L's OCI are typically only seeking students who prove they can rise to the top 10-25% after 1L anyway. If firms really thought the 3L experience impacted associate performance, they would wait to see 3L grades before extending a summer offer to students. That is not the case, and I doubt firms will be too concerned with this reform.
W&L students like the 1L above who see themselves as future academics must know they can only achieve this goal if they get to the very top of their 1L class. In that event, they would be well-advised to transfer to a better school, and the new 3L curriculum will not affect them.
The vast majority of W&L students will be practicing in small firms or government. The new 3L curriculum seems precisely designed to help these students. I welcome it.
Posted by: Anonymous 0L | May 4, 2008 1:59:28 PM
As an alum of W&L law, I am concerned about the quality of the school suffering due to this recent decision. Is this a move to improve the school and its curriculum? Is it a legacy by which those seeking it will leave their mark? Is it an effort to push the envelope? And how will this work in rural Virginia, over an hour from a larger city (and airports and larger firms)?
I also would find it difficult to get all of the general and specific courses that are needed in two years if I were attending now. When you consider that second years must take ethics/PR, UCC, estates, basic tax, evidence (even if not on a litigation track but to get the third year practice credentials), and all of the other general courses, plus a course to meet the writing requirements, this makes the second year next to impossible to do with any remnant of sanity. I remember how difficult it was for me to get all of the courses I needed, and I took heavy loads in my second and third years. It also will make it particularly difficult for students who do law review or clinics. Everyone knows the importance of doing an internship in the summers. Students can get that valuable experience during their second summer and perhaps their first summer as well. Plain and simple, I am concerned. Thanks.
Posted by: Alum | May 11, 2008 6:31:06 AM
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