(Not So) Newish Law School Teaching

How do we teach?  How should we teach?

Lots of different ways.  One of the ongoing curses of legal education is the expectation – sometimes explicit, often implicit – that there is one right or best universal way to teach a law school class.  “You are a SON OF A BITCH, Kingsfield.” I think that Hart used that line to say something slightly different, but it works for me, too.

Earlier this Summer, a portfolio of my Copyright Law course — syllabi, assignments, comments from me, some video with me as a talking head — went online at a project called “Educating Tomorrow’s Lawyers” (ETL), which is part of the “Institute for the Advancement of the American Legal System” (IAALS), which is housed at the law school (the Sturm College of Law) at the University of Denver.

My course portfolio is one of a small but growing number of course portfolios from law professors who are, in one way or another, teaching conventional subjects in unconventional ways, or teaching unconventional subjects.  Some of us are more or less traditional “classroom” teachers.  (That would be me.)  Some are clinical faculty. Some are legal writing or other so-called “skills” faculty.  Some are blends.  Some have strong primary commitments to reform of legal education or the legal system.  Some express their commitments to reform or innovation in less direct ways.  I have opinions about macro issues facing the legal profession, but my teaching is an intervention of the second sort. I have a roomful of law students to work with for a term, and I want to do what I can in that time to prepare them to actually practice law.

• My Copyright Law portfolio is here.  (Only the Copyright portfolio is up, but I also teach Trademark Law using essentially the same model. I have taught Cyberspace Law and Electronic Commerce using the model.)
• All of the ETL portfolios are here. 
• The main ETL site is here.
• ETL has a blog.

My somewhat unconventional approach to conventional subjects is basically this:  First, I don’t give a final exam.  My students’ graded work product consists of three short (four pp.) written memos produced over the course of the semester.  Second, the prompt for each memo is usually some version of a client’s “what should I do?”  rather than the more typical “what’s the answer?” or “what’s the likely outcome?”  or “construct the best argument for X.”  These are not issue-spotters.  They are entirely open-book / open-anything, and the challenge is to give great advice, not just to lay out “possibly this, and possibly that.”  If a client asks:  What should I do?, as a client often does, then the lawyer (the law student), respecting and disclosing limits of knowledge and expertise, needs to answer the question. 

As often as not, I pull problems from the proverbial headlines (either the real headlines, or the “headlines” of what I happen to encounter myself), in a sort of Law and Order homage.  I rarely have a clear picture of what the legal issues or practical issues in a given assignment will truly turn out to be.  It is a little like the high-wire act of actually practicing law, and that’s deliberate:  I am not testing only the students’ ability to distill and apply “the law.”  I am trying to get them to internalize and then express the idea of actually being a lawyer, with the uncertainty and discomfort and risk that are inevitably part of that identity.  Third, I can’t do that only in the vacuum of graded assignments.  We spend class time weaving our way through related exercises.  As often as I can, I try to get six or seven or eight students playing roles simultaneously in a single complex problem.  I once had a student, role-playing a lawyer in a complex trademark scenario, volunteer that she would resign from her job rather than give the advice that the role likely pushed her toward.  I thought that was brilliant, both on her part and as an entree into a detour on ethics, professional identity, and the nature of a career in the law.  I experiment a lot, with both in-class and out-of-class assignments and exercises.

I make it clear at the ETL site that I’m consciously trying to make productive use of my years as a practitioner, partly in the sense that I had diverse (i.e., often non-IP) experiences in using the law in practice and partly in the sense that I had (and still have) an acute sense of the fact that for most lawyers, the world does not revolve around them, or around the law itself.  Their focus is the client.  In my time as a teacher, I have learned that this is the thing that is both most often missing from legal education (generally and specifically) and also perhaps the most difficult to teach:  the fact that being a lawyer means serving other people.  Clinical faculty and their students generally get this; they have to.  But outside the clinics, in my experience (based chiefly on talking with students themselves), it’s missing.  How do we, as teachers, inject that perspective seriously into what we do?  (One of my premises is that we, as teachers, should do that; some people might disagree.)  And what does that — a client-centered perspective on legal education — really mean?

I can’t answer the big questions here.  I can only note that I don’t have a difficult time keeping a client-centered perspective well, front and center.  I’ve been a client.  (Lots of lawyers and law professors say:  to get a great perspective on the legal system, be a juror.  I say:  That’s fine, but to really understand the legal system — and how dehumanizing and alienating it can be — be a client.  Want to know why lawyers are unhappy?  Ask a client.  *They’re* unhappy.  Find happy clients, and you will often find happy lawyers.  </soapbox.>*)

Putting client-centered-ness to use in the classroom, I’ve kept a running benefit/cost analysis in mind for a long time, and for me the benefits substantially outweigh the costs.  For you, here’s a thumbnail catalog:  The chief benefits are that I can see students’ progress over the course of the term, so I can tell, more or less, whether my teaching is having an impact in the short term.  (Which is to say, the kind of impact that I want to have.)  Over the longer term, I get feedback from former students telling me that the writing and thinking that they did in my courses prepared them particularly well for the kinds of writing and thinking that they have been expected to produce in law practice – whether or not they are practicing in any IP area.  (I don’t ask my students to do drafting exercises, or mock arguments; they can get that kind of experience in other courses.)  Some of the costs are pretty obvious.  I don’t have any research assistants, teaching assistants, or other helpers, so I do all of the assignment prep, delivery, and grading myself.  That takes a ton of time, as legal writing faculty know, much more time that it takes to construct and grade an end-of-term exam.  That time generally comes out of “rest of life” time rather than out of “scholarship” time or “service” time, both of which are (at least) constant.  Other costs are either less direct, or not really costs.  Long ago I gave up the fiction that I am really trying to teach my students mastery of the details of Copyright Law, or any area of law.  The general outlines – yes.  The basic ways of thinking – yes.  The basic goals and conflicts embedded in the law — yes.  How to maneuver through the cases and the statute – yes.  The details – hopeless.  They’ll master some details — those that are relevant to particular assignments — and forget some or all of those later; they’ll never see other details, other than through the reading.  Some teachers would regard that loss of “coverage” as a cost.  Increasingly, I don’t. 

I am hardly alone in teaching in some version of this style, although I think that I have been practicing it longer than most (my first course in this style was offered 10 years ago).  I have IP colleagues at other schools who have borrowed bits and pieces of the approach, and sometimes much more than bits and pieces of it, from me.  Some faculty at other schools have been doing versions of this in other subject areas.  The ETL site identifies some of those.

With all of the talk these days about challenges in the legal profession, for law schools, for new lawyers especially, and for current students, it is tempting (maybe) to connect what I’m doing to recent pressures.  There is also a temptation to connect it to the 2007 Carnegie Report. On both counts, the timing is more coincidence than anything else.  ETL is expressly an outgrowth of Carnegie.  I don’t mind being aligned with Carnegie, although I think that Carnegie gives current legal education too much credit.  For more on that point, see this interesting recent paper in the Journal of Legal Education — on how legal education needs to engage students more in *doing* as well as in *thinking,* — from Kristen Holmquist.  If my course (and other ETL cited courses) are aligned with renovations to legal education that address current economic pressures in some small way, that’s great, too.  But the problems with the legal profession and legal education are too large and too deep to be fixed in any particular classroom.

Rather, my source is this.  In addition to being inspired by my time in practice, I give credit to the team of teachers who helped me get started as an academic lawyer:  Todd Rakoff, the late Gary Bellow, David Herwitz, Frank Sander, and Virginia Wise, all at Harvard Law School, who led a program called “Lawyering” as an elective course for 1Ls beginning in 1996 and who hired a few people as Teaching Fellows (predecessors, sort of, to today’s Climenko Fellows) to collaborate with them.  I was one of those, starting in 1997, along with Joe Liu (now at Boston College) and Steve Berenson (now at Thomas Jefferson).  (Laura Rosenbury, now at Washington University, was a student TA with us.)  Harvard has used its “Lawyering” lessons in various ways over the years; so far as I can tell, the ethos of that program lives today in the 1L “Problem Solving Workshop.”  “Lawyering” was an early effort to bring forms of experiential learning into the law school classroom. I am still using some of the lessons I learned with that team.

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* Added July 26: 

Chatting about this with a colleague, I worried that my original phrasing suggests that lawyers are the cause of their clients’ unhappiness.  That’s sometimes true, obviously, but the bigger point is that clients are unhappy (aggrieved, stressed, traumatized, angry, disappointed, overwhelmed, baffled) for reasons that usually have little to do with any particular lawyer.  The reasons sometimes have something to do with the legal *system.*  Why can’t “the law” just make the bad guy return the money he stole?  They sometimes have something to do with the dependent nature of the attorney/client relationship.  One senior litigator I know used to focus on the client’s utter helplessness as the source of stress between client and lawyer.  I think that he over-stated things somewhat, and I also think that the attorney/client relationship is not unique in its attributes of dependency, but he was on to something.  And, of course, clients are unhappy for reasons that precede and are entirely alien to the legal system or lawyers as such.  

So, to say that happy clients and happy lawyers go together may be appropriately flip for a blog but too brief for a real analysis.  Lawyers can’t always make their clients happy.  Not every client is unhappy to begin with.  But lawyers can understand the sources of their clients’ unhappiness, and lawyers and law students trained to do that (or to do that better than they do presently) are, in my view, likely to achieve a better fit between their own professional goals and the needs of society at large.  In other words, recognizing that goal (a deep appreciation of the client-centeredness of law practice) as primary in the development of any lawyer or law student can go a long way to mitigating the rampant unhappiness in the profession, and can go some way to reducing the mismatch between supply and demand for lawyer and legal services, particularly in the private bar.