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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.