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A law school for the 21st century

The Law School of the Future

Erwin Chemerinsky
Alston & Bird Professor of Law and Political Science, Duke University
Founding Dean, University of California, Irvine, School of Law (This is based on an article I wrote for the Daily Journal)

What will law school be like in 25 years? If the past predicts the future, there is little reason for optimism. I began law school in 1975 and law schools are remarkably unchanged over the last 30 plus years. Law schools still teach most courses in relatively large classes and emphasize reading of cases as a way of learning legal doctrine. Actually, this method of teaching is very successful at instructing law students in the substance of many areas of law and at developing skills of legal analysis.
But law schools do a poor job of teaching other skills. Few law students graduate ready to interview clients, draft contracts, negotiate deals, or argue in a court. Nor do most law students leave law school with other than a cursory understanding of economics or psychology or other disciplines that inform the law and that lawyers often use in their work.
What attracted me to being the dean of the new law school at the University of California, Irvine is the chance to create a law school for the 21st century. We have the enormous advantage of doing so at a wonderful university with a commitment of substantial resources by Chancellor Michael Drake and Provost Michael Gottfredson.
All too often when law school faculties discuss curricular reform it is about what courses to put in or take out of the first year. For example, I have been part of endless discussion of whether Constitutional Law should be in the first year curriculum and, if so, what aspects of it should be there. A trendy current innovation is putting International Law in the first year. Ultimately, little turns on which substantive law courses are in the first year as opposed to the upper level curriculum. Changing these around isn’t meaningful curricular reform.
My vision for a law school of the 21st century, and for our new law school in particular, has two key components: experiential learning and interdisciplinary learning. I also want to make sure that there are more opportunities for students to have smaller classes, especially in the first year. For example, I think that it is essential that all students have one course in a “small section” during both the fall and spring of the first year. In this course, there should be multiple evaluations of students’ work, rather than the usual one exam at the end of the semester with no feedback.
Experiential learning is crucial to doing a better job of training lawyers. In this way, law schools can benefit greatly from the example of medical schools which have medical students seeing patients as a core aspect of their education. I always have been baffled why medical schools realize that training doctors requires having their students see patients, while law schools believe that they can train lawyers who never see a client while in law school.
There are many ways that law schools can do a better job of experiential learning. I would require that every law student have a clinical experience or the equivalent. Clinics might focus on transactions, such as a clinic to help small businesses, or on administrative proceedings, such as an immigration clinic, or on litigation, such as a criminal defense clinic. Clinics can focus on literally every area of the curriculum. But the key is to ensure that all students have the experience of practicing law under close supervision.
Also, all students should be required to take courses that teach legal skills, whether it is drafting of documents, or negotiations, or advocacy. Last semester, I taught a large class on Federal Practice of Civil Rights and required the students to draft a complaint, develop a discovery plan, and engage in a negotiation. All students should have multiple experiences of this sort in law school.
Indeed, even in the first year, there can be more experiential learning. The traditional first year legal writing class can do a much better job of teaching lawyering skills. In addition, I would propose that students take a short course, before the start of the second semester, which they select among skills training in contract drafting, negotiation, trial practice, or appellate advocacy.
At the same time, law schools can do a much better job of providing interdisciplinary instruction to law students. The most important change in legal education since I was a law student has been the recognition of the importance of other disciplines to the understanding and shaping of law. Most law schools now have faculty who have advanced training in fields such as economics, philosophy, and psychology.
However, while faculty scholarship has become much more interdisciplinary, there has been little effort to integrate other disciplines into the legal curriculum. For most students, it is hit or miss depending on their instructors’ interests. Law schools should better ensure that all students receive some instruction in these other disciplines.
Interestingly, law school faculties have become interdisciplinary primarily by hiring within the law schools experts in these other areas. At most universities, faculty in the other disciplines have minimal involvement in the law schools. At the University of California, Irvine, there are already superb faculty working in areas such as criminology, law, and society, law and economics, law and psychology, law and sociology, and environmental law. It is crucial to integrate them into the law school from the outset and to have law faculty involved in these other disciplines.
Law schools also must do a better job of dealing with science and technology. The practice of law deals with these issues constantly, but law schools do not do nearly enough to prepare students to deal with legal matters involving science and technology.
As part of our interdisciplinary effort, the University of California, Irvine, School of Law will emphasize areas such as law and medicine, law and society, and law and humanities. We hope to hire key faculty in these areas and also establish dual degree programs. The presence of a significant number of students engaged in interdisciplinary work, by itself, will change the nature of law schools.
Finally, the law school of the 21st century must do a far better job of encouraging students to use their training to help the unrepresented and advance social justice. All too often, law students have heard about the need to serve the public interest on two occasions: in the dean’s opening welcome to first year students and the graduation speaker’s commencement address.
Using law to help people and society is neither liberal nor conservative. It is about the duty of every lawyer to use his or her training for the social good. Law schools must instill this throughout the curriculum and must look for ways, such as summer stipends, post-law school fellowships, and loan forgiveness programs, to encourage more law students to pursue careers in public interest law. All law students, whatever their field of practice, should graduate believing that they have the duty to do pro bono work and use their training to improve society.
If our new law school simply replicates existing outstanding law schools, then we will have failed. The country does not need another law school like the other great ones. But there is a need for a new approach to legal education and the law school University of California, Irvine, can provide a laboratory and a model. It is incredibly exciting to be the dean of this new endeavor and I enormously look forward to it.

9 thoughts on “A law school for the 21st century”

  1. Law Students already Employ Interdisciplinary Thought; They just don’t know it and faculty don’t massage it.

    One of the major distinctions from United States Legal Education that separates us from our foreign friends is the prerequisite that students first obtain a bachelors degree before gaining admittance to law school. This is unique not only because it makes legal education in United States a graduate level program, but also that it gives a palette of colors (i.e. academic disciplines) which a law professor can employ to paint the picture of what the law is, and how to think and employ it.

    First, definitional distinction. Many confuse multi-disciplinarity with interdisciplinarity. It is a difference in degree, but a difference nonetheless. The former, muli-disciplinarity, brings forth multiple fields’ methodologies and theories to solve a problem. Interdisciplinarity, on the other hand, adds a step to the analysis. it tasks the thinker to not only use multiple fields of thought, but also to try and synthesize those two fields. This idea of synthesis is central to the process of interdisciplinary thinking.

    I don’t necessarily think Dean Chemerinsky, or other bloggers, have conflated the two, but I have learned – from too many banal faculty meetings (serving as a student representative)-that if going to discuss interdisciplinary thinking best to start with the definitional distinction.

    Now, stepping off my definitional soap box (yes, I consider the forgoing paragraph one of the reasons I know I belong in law school), returning to my point. Law students come from a variety of academic backgrounds. Take for example my small group of ten law students that I studied with my first year. Among us the following majors came out: accounting, criminal justice, criminal justice, history, political science, philosophy, and sociology. Add my roommate and you get physics; allow me a couple more and I get to engineering and music. A multi-disciplinary panacea awaits the law professor walking into his classroom.

    Now, if you’ll allow me an assumption, I assume human nature works for law students too. Further, that human nature implicates the employment of thought based on past experiences.

    Now put the multi-disciplinary group of students together with a new subject: law. What do you get? My assertion is you get implicit, but unrecognized interdisciplinarity.

    Sure, law school introduces a new methodology and ultimately a new sets of constructs by which to analyze and ultimately solve problems. But foolish we are to think that students don’t already bring to that study their prior experiences; including their experiences about how to solve problems in a different, but possibly equitable fashion.

    How students reconcile this new method with their previous approach, I suspect, is by synthesizing their previous approach with the new approach. Thus, shazam! Interdisciplinary thought.

    My concern as the discussion ensues on how to bring interdisciplinary thought into law schools is that faculty and institutional planners will not see the forest through the trees.

    Faculty should seek to engage the potentials for interdisciplinary thought at the time they are most ripe, which happens to be the same time faculty try to teach legal thought: the first year. Students have just left the experiences of their past and come ready to engage a new method of problem solving or social ordering. The moments are perfected for the capture.

    As I stated at the forefront: United States legal education is unique. Why not capture its uniqueness?

    **Caveat: This comment comes from a student. Commonly thought to be the mute and blind in curricular issues.

  2. All students should have multiple experiences of this sort in law school.

    Nicely said. Those types of experiences in law school help students learn and apply context, and give meaning to the structure.

    Wish you well in your approach and attempt.

  3. I recently earned a Ph.D. in political science after serving nine years as a prosecutor and a defense attorney. My experience during the past six years of graduate school was in some ways similar to the dark cave that I experienced during my first year of law school. When I entered graduate school I discovered a disciplinary world that had invested a great deal of energy in creating a body of theory dedicated to reinforcing the discipline’s status as a science. Ironically, the strategy that I used to deal with the insular experience that I encountered in graduate school was very similar to the strategy that I had used twelve years earlier when I entered law school.

    What saved me during law school was being able, with the encouragement of faculty members like Erwin Chemerinsky, was to forge interdisciplinary ties to the field of women’s studies. As a graduate student who had, what was considered by some faculty members to be irrelevant real-world experience acquired in the trenches of the criminal justice system, I preserved my sanity by taking courses in law and society studies.

    Unfortunately it often requires a great deal of energy to swim against the mainstream. For example, last spring I was invited to present the preliminary results of an ethnographic research project that I was conducting on the decision-making practices of German prosecutors within my political science department. In the question and answer period after my presentation, a tenured faculty member asked me: What kind of job do you think you are going to get with that dissertation? While I can happily report now that I have secured a tenure-track position on a law faculty, it would be my hope that law faculties find a way to penetrate some of these disciplinary borders. Although many scholars write about topics that cross disciplinary boundaries, between the fields of political science and law, there is still a solid wall. Only a small minority of legal scholars are familiar with the attitudinal model that is present in political science research on judicial decision-making. On the other side of the aisle too many political scientists pay sufficient attention to what it means to “think like a lawyer.”

    I sincerely hope that the innovative ideas currently being discussed in legal education will ultimately make it possible for students who would like to probe both theoretical and practical problems that lie at the intersection of several disciplines to swim with the stream.

  4. One problem adopting the clinical training aspect of medical schools is this: While most medical school professors have extensive experience in treating disease, many law professors have little or no relevant experience practicing law. As law faculties have aspired to gain equal “scholarly” footing with other university disciplines, they have elevated the nerdy academic over the practicing lawyer. That’s fine if your goal is abstract and theoretical; it’s more problematic when you’re overseeing a 21-year-old kid who is advising a trusting lay person with real-life consequences at stake.

  5. Dear DS,

    I think that you are referring to medical professors who teach the clinical side of things; not the basic science of the first two years, correct?

  6. Deven — My larger point, probably not articulated well, is that one would have to radically overhaul the culture of the legal academy to create clinical legal education that is anything comparable to the medical school model. Especially among the elite law schools, clinical instructors have nothing like the prestige that is accorded thumb-sucking scholars who publish in the “right” journals but haven’t had to provide, and take responsibility for the results of, actual legal services to an actual client in years (or maybe ever — think of the legal academy’s ideal: right out of law school, the candidate scores a Circuit clerkship, followed immediately by a Supreme Court clerkship and then his/or first assistant professorship). As I understand it, medical students are deeply immersed in clinical training for most of their education — not just the last two years, but during residencies that are essential to their career prospects. Hard to imagine translating that model to legal education unless we go back to studying law the way Lincolon and countless others did in a bygone era — as apprentices to practicing lawyers. Too many legal “scholars” on too many law school faculties have too many footnotes invested to allow a return to that system.

  7. Dean Chemerinsky writes: “…Actually, this method of teaching is very successful at instructing law students in the substance of many areas of law and at developing skills of legal analysis.”

    I disagree. The schools do an OK job in those areas with students who have been pre-screened by the LSAT and other more or less standardized measures for exactly the ability to learn from the case method. As schools with a mission of access and diversity know, there are many more students than those who can and do succeed in law school, on bar exams, and in practice, but who require more varied and better pedagogy than teaching from cases.

  8. Dean Chemerinsky writes:

    “Actually, this method of teaching is very successful at instructing law students in the substance of many areas of law and at developing skills of legal analysis.”

    I disagree. Law schools do ok using this method to teach analytic skills to students who have been very selectively prescreened by the LSAT and other more or less standardized measures to be able to learn those skills in that manner. As law schools with access and diversity missions know, there are many more students who can and do succeed in law school, on bar exams, and in practice, when afforded varied and more innovative pedagogy.

  9. Chemerinsky: Finally, the law school of the 21st century must do a far better job of encouraging students to use their training to help the unrepresented and advance social justice.

    I wish that liberal professors didn’t try to force or threaten students to give away their time and assume that some students are somehow “bad” if they don’t or can’t do it when and how and if they want. One cannot know each student’s situation and abilities, and it’s wrong to put them into situations that create more stress or conflicts for them.

    Such thinking goes along with “forced volunteerism” aka “service learning.” Just teach the subject for which you’re being paid and worry about your own social consicence rather than those of others.

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