What Kind of Institution Do We Want a Law School To Be?

Erwin Chemerinsky and Mike Madison have already gotten the ball rolling with two very thoughtful posts (here and here, respectively).  I want to add my own two cents by questioning the assumption that every law school should change in the same way.  Part of the problem with the condition of law schools today is the level of conformity in legal education.  We have countless schools aspiring to look like the ones at the very top of the pecking order, even though we really don’t need any more clones of those schools.  Why aren’t there more breakaway schools, willing to experiment with different models of legal education?

Some of the answer lies in how closely we’re tied into our accreditation standards, which seem to press us toward a conservative model of legal education.  The more we stick with the tried-and-true, the less problem we’re likely to have with our sabbatical visits.

And yet, change isn’t impossible.  Washington & Lee has decided to try an entirely different type of third year, “entirely reinventing the third year to make it a year of professional development through simulated and actual practice experiences.”  (See here.)  W&L’s announcement of this change has met with mixed reviews, but I find it a promising development, because it gives law school applicants more of a real choice in deciding what type of law school to consider.  Imagine how much more real choice applicants would have if other law schools decided to alter their curriculum in other dramatic fashions? (And, in my more snide moments, imagine how much more difficult it would be to rank law schools ordinally if the schools truly were different in kind from each other?)

 

Personally, my ideal law school would actually require certain courses pre-matriculation, in order to give its students a leg up on understanding law as a social science.  I’d like to see applicants have to provide transcripts with courses in U.S. history, psychology, economics, sociology or anthropology, philosophy, and accounting, so that they could come to the study of law with a greater appreciation of the context in which law is shaped.  I’d like to see transcripts with more intensive writing experiences, because many students come to us woefully unprepared to communicate their thoughts in writing.  If medical schools can require applicants to take certain courses before matriculation, why can’t law schools do the same?

 

In some of my other writing, I’ve suggested that the third year of law school (at least at some schools) could be a year that teaches students that law is just one way of problem-solving and that other tools besides law (economics, psychology, sociology, etc.) can solve some of those problems at least as well as, if not better than, law can.  Perhaps W&L’s “practice year” would be one way of demonstrating this idea.  Perhaps Northwestern Law’s third-year mix of law students and MBA students is another way of teaching the same thing.  (That mix also teaches law students that the risk tolerance of law students is significantly different from the risk tolerance of most clients—an important lesson in the post-Enron world.)  These two very good schools are demonstrating that there are other ways of conceiving of legal education besides the traditional model.  Those of us who care about legal education are creative people, but we also tend to be risk-averse as a group.  We need to fight against that tendency if we’re going to have legal education move forward.  The way that I think about legal education is a bit like the way that Woody Allen’s character, Alvy Singer, thought about relationships in Annie Hall:  A relationship, I think, is like a shark.  You know?  It has to constantly move forward or it dies.  And I think what we got on our hands is a dead shark.”  (For the Annie Hall quote, see here.)

In a future post, I’ll describe some characteristics of the faculty of my ideal law school. 

5 thoughts on “What Kind of Institution Do We Want a Law School To Be?

  1. I got steered over here from Volokh as well. As someone starting as a 1L in the fall, I’ve been accepted and offered a scholarship to Washington & Lee, and accepted to GW and Georgetown. I received a letter just yesterday describing the proposed change to the 3L curriculum at W&L and, you’re right, I did appreciate the choice it offered.

    …which is why I plan to pass on W&L and attend Georgetown instead. I’m well aware of the adage that the study of law bears little resemblance to the practice of law, but I really do view the next three years as a chance to develop my thought processes more than a vocational education. I’m sure other students will take the opposite view, but I really don’t want to learn the rote mechanics in place of the underlying philosophy. (Admittedly, I’m probably selling W&L’s 3L experience short and underestimating their 1L and 2L programs, but the impression they’ve left me with is certainly more vocational than cerebral regarding the 3L curriculum.)

    Ah, the bold pronouncements and cocky, semi-coherent ramblings of a pre-1L…I hope you enjoyed. 🙂

  2. I think one of the problems with making changes in law schools is that there are two ways the changes can go:

    1. Towards metrics that will improve a school in the ratings and that just happen to be things that most law professors know how to do and like to do

    or

    2. Towards things that students and lawyers often suggest but that are things many law professors are not comfortable with and have little experience in.

    That hit me when the assistant dean where I went to law school remarked one day that they needed a class or two oriented towards small firm practice — something that none of the professors had any experience in but that was where the vast majority of law students ended up.

    The no. 2 type classes also tend to take a lot more time from those teaching them.

    I took a criminal trial practice class. There were only fifteen students and it took two professors and three T.A.s working at it pretty hard. We did either video or writing assignments twice a week, and got feedback individually and as a group, as well as classes, instruction and context. That meant about fifteen or twenty video sessions and about fifteen graded written assignments.

    On the one hand, Orange County reserved one of its three clerk positions for someone who took the class. On the other hand, it was a lot of work to teach and most professors would not have the actual background to teach it well.

    The same is true of paraclinical classes vs. clinics.

    E.g. http://adrr.com/law0/rf6/family.htm

    You make a great case for context — which is exactly what the old pre-law programs were intended to provide. I’m all for additional applied tools as well — if they are presented in ways that actual lawyers in normal practice would apply them.

  3. I enjoyed all of these comments, and they’re adding to my understanding about some massive disconnects in law schools between what law professors like to do and what law students may want or need us to do. More on that in a moment.

  4. Why can’t law schools mirror medical schools? Why can’t there be an intensive first-year of learning law at a theoretical level together with intensive evaluation of writing. PhDs in History, Philosophy, Economics and Political Science alone are more than able to teach 1L classes. Then the next two years can be involved in clinical rotations. Law schools, especially the elite ones, can start developing area-of-law tailored clinics and begin to recruit lawyers from the outside into the legal academy as clinical professors (as opposed to the PhDs and straight-research JDs who are research professors). This way the University can generate income by having their clinical professors engage in billing schemes and these profits can be used to expand research faculty. Clinics would serve to house both research professors and clinical professors and serve as a nexus between research and practice. Students would be heavily involved in the work of these clinics and, based on their performance in these clinics, they can be well-evaluated for further pursuits e.g. clerkships and/or private practice. Moreover this University model of legal practice would change the notion of the firm by reconstituting the legal elite into university professionals where the law clinic, like the University hospital, is seen as a place of public service even when lawyers and doctors might be paid well. Indeed if Skadden Arps makes over $1 billion in annual profits, surely the University could be an ideal place to channel those profits, which can be further invested and distributed to faculty on the basis of research and clients.

    The level of education today is one where professors devise 3-hour exams to ensure that their burden of improving student writing and thinking is kept to a minimum and that their time for being left alone to do pithy research is maximized.

    I have had a number of professors use Examples and Explanations as the basis for their exam questions. But they get away with this because they have tenure. This isn’t education, it’s privileging mediocrity and hurting students. The system of exam-evaluations privileges such professional negligence.

    Students should be writing and engaging in advocacy from the start.

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