Today is the last day of Madisonian’s full-time attention to the future of legal education, and Jim Chen has energized the mobblog with a sweeping, challenging post about focus. Again, I want to broaden and narrow the conversation, all at once.
Broaden: It’s impossible to think about changes in legal education without also thinking about changes in the legal profession; that point has been made in earlier posts. The state of the legal profession, however, implicates not only costs, and salaries, and debts, but also effectiveness. Law schools have a key role to play in ensuring that the profession is populated by good lawyers, effective lawyers, and respected lawyers. Should we care, therefore, that lawyers as a class are the butts of innumerable jokes? (Ask yourself: Are doctors targeted to the same degree?) At an interdisciplinary academic conference that I attended last weekend, populated by thoughtful colleagues from other disciplines and characterized by lots of challenging analysis, several of the speakers from outside the legal academy prefaced their remarks with comments that translate roughly as, “Since I’m speaking at a law school and in front an audience of lawyers, I’ll speak very slowly and use short words.” Ugh.
In other words: Focusing on Jim’s vision of the core mission of law schools may not be enough. What’s missing? Structural reform to the concept of legal education itself — beyond the individual law school — that begins to restore the social role of lawyers that the core mission seeks to implement. “Law” is both practice as social engineering and intellectual practice; if society respects the former, that’s in part because society understands the latter. So I’ll disagree modestly with Jim’s premise: law may not be a “pure” discipline, but it unquestionably has a valuable scholarly dimension. At the institutional level, it may be right to divorce some or all of that scholarly dimension from law school’s training mission. There are different ways to imagine this: Put the scholarly side of law back into the faculty of arts and sciences; if law really is a vehicle for a liberal education, then truly integrate it with the rest of a liberal education. (And treat legal scholars like scholars of history and economics when it comes to expecting scholarly training and scholarly rigor and productivity.) Or keep legal scholarship in law schools but divide the program a la medicine or business schools — two years of basic training that results in a JD, then two additional years on a clinical track (as in medicine) or a further academic track (as in medicine or business). In law schools, those later clinical two years could be constructed out of joint ventures with the practicing bar. Admission to the bar would follow the second two years. Also, I like the idea of formalizing the expectation that there should be a curriculum for undergraduates that anticipates legal education — though I wouldn’t call it “pre-law.” I wouldn’t stop with expecting undergraduate exposure to social sciences; I’d like to see our students know something about biology and chemistry. Who remembers that once upon a time, the LSAT tested math skills? I’m no fan of the LSAT, but what did the profession lose, even if only at the margin, when the test changed in the early 1980s, and math disappeared?
Narrow: Let’s cash out the core mission with some concrete prescriptions for legal education in the 21st century, beyond my imaginary institutional reforms above (and others that’s I’ve suggested below). Should at least some law schools abandon their Landgellian curriculum? Vanderbilt and Harvard, among other schools, are tweaking the first year. Should schools go further? (And if some law schools do, which ones are suited to the task?) What would the law school curriculum look like if we started from scratch? For an analogous exercise, look at Yale’s new MBA curriculum. The first year begin with a series of institutional perspectives on the role of law and lawyers, undertaken (B-school style) via cases and in teams. The second year applies those lessons in disciplinary and cross-disciplinary contexts. Business in the front; party in the back?
One of the odd orthodoxies of debates about reforming American legal education is that real legal education occurs during those three key years in law schools, and nowhere else. We could re-imagine that orthodoxy in ways both small and large. Small: The “law center” model could be expanded; instead of most law schools offering continuing education at the margin (and carefully avoiding competition with private CLE providers and with the private bar), how about CLEs keyed to law school reunions? Every five years, come back to school for a weekend of mini-courses taught by the full-time faculty? Large: Collaborate with the state bar and make participation in that sort of thing — as opposed to the junketeering and half-hearted CLE programming that currently satisfies state CLE requirements — a condition of retaining the law license. Or make the JD like a registered trademark: Once it issues it issues — but you have to pay maintenance fees in order keep it registered. In this case, the fees would be meaningful law school-sponsored training. And make the tuition tax-deductible.