Brian Leiter's Law School Reports

Brian Leiter
University of Chicago Law School

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Monday, 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.)

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Comments

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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