September 26, 2007
Advice to Erwin Chemerinsky
Posted by Gordon Smith

Paul Caron and Bill Henderson solicited my input for their series "Advice for Erwin Chemerinsky." You can find all of the contributions at Paul's TaxProfBlog. If you are particularly interested in mine, it went up this morning. Note that I was responding to the challenge to offer the "single best idea for reforming legal education." Of course, I wanted to be provocative, so the hate mail from legal writing instructors and clinicians should be rolling in at any moment now ...

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Comments (12)

1. Posted by Lawrence Cunningham on September 26, 2007 @ 8:28 | Permalink


Just to clarify your idea, who would teach the courses required to meet ABA Standards 302(a)(2) (requiring a curriculum to include at least one rigorous legal writing experience in the first year and at least one after that) and 302(a)(4) (requiring “substantial instruction” in “other professional skills,” interpreted in Interpretation 302(3) essentially to mean requiring students to take at least one “skills” course)?


2. Posted by Jeff Lipshaw on September 26, 2007 @ 9:03 | Permalink


At first I was puzzled by your suggestion (by the way, Paul has solicited me, so I have no doubt, if he runs it, that you and everybody will be mystified by what I had to say!) because I wasn't sure what the content of the remaining instruction was to be.

But I'm presuming that you would do something to the content, and not merely have, say, in contracts, excellent teaching on the doctrine of consideration or offer and acceptance, or the myriad of other current doctrinal components I suspect practitioners would say are largely anachronisms in today's law of commerce.

3. Posted by tRJ on September 26, 2007 @ 9:14 | Permalink

I especially like the idea of moving to a two-year program. By my 3L year, I was really liking that idea, wishing I was out using my skills. I could even go for something similar to med school, where the 3L year would be an internship or time in legal clinics.

4. Posted by Gordon Smith on September 26, 2007 @ 9:20 | Permalink

Larry, Implicit in the idea of educational "reform" is the possibility of changing the standards. When I was pondering my assignment, therefore, I attempted to avoid being constrained by the current standards. Truth be told, I looked at the standards to get some sense of the room for play, but that confirmed what I already suspected: that meaningful reform would require a change in standards.

Now, so as not to avoid your question completely, let me address the issues you mention. First, legal writing. My preference would be to have more than one rigorous legal writing experience in every semester of law school. Make law school synonymous with writing! And embed those writing experiences in the substantive law classes, rather than outsourcing that task to a separate department of the law school.

Second, "skills." Many of us embed the teaching of legal skills in our substantive law classes. If I give my Contracts students a contract drafting assignment, for example, I am teaching skills. When the ABA refers to "substantial instruction" in "other professional skills," however, my impression is that this is something beyond what happens in most substantive law courses. In my view, the need to develop skills beyond analysis and writing can be addressed to some extent through better teaching in substantive law classes -- especially if those classes are small -- but my more aggressive claim is that "skills" are best learned through real-world experience (as noted in my post, an externship program would be one way to link this sort of training to the law school). I am not sure whether my vision of a law school would comply with the ABA standards, and I don't care. See the first paragraph above.

5. Posted by Gordon Smith on September 26, 2007 @ 9:24 | Permalink

Jeff, Wouldn't it be nice if Contracts were really about contracts?

6. Posted by Lawrence Cunningham on September 26, 2007 @ 10:14 | Permalink


Thanks for the clarification. Sorry for misunderstanding the premise of the exercise. Since the headline seeks advice to the Dean of a new law school, I was led to think “get ABA accreditation asap.” I see now that is just a hook to ask about reforms. But it does suggest a different question: is it likely that the dean of a new law school will have the power to change ABA standards—power that deans of existing schools lack?

7. Posted by Jeff Lipshaw on September 26, 2007 @ 10:29 | Permalink

Larry, when Paul and Bill asked me the question, I didn't even think of it in terms of Erwin Chemerinsky or Irvine - I thought it was a rhetorical flourish to talk about reform generally. Others looked at it as specific advice to him and his school, and I suppose that is some indication of the cleverness of the question.

8. Posted by Scott Moss on September 26, 2007 @ 12:20 | Permalink

Gordon, I place a high value on legal writing, clinics, etc. -- but I agree with your suggestion. My "if I ruled the world..." reform would be (1) to make a JD a two-year degree focusing on just the bread and butter, with more writing integrated into the curriculum, and (2) to make the third year an optional LLM with numerous "majors" available, e.g.: clinical legal services; labor/employment; business and corporate law; tax; litigation; legal transactions; etc. This sort of optional specialization would also help non-elite-school students show they have relevant skills.

I think others have suggested something similar about an optional third year, so I can't insist that this was an entirely original thought by me (i.e., maybe I read something like this somewhat and it stuck in the back of my mind).

9. Posted by Gordon Smith on September 26, 2007 @ 12:46 | Permalink

Scott, The optional third year is a nice idea. I was running out of space on my post (250 words max!) or I might have said something about that.

Larry, What Jeff said.

10. Posted by Anthony on September 26, 2007 @ 18:14 | Permalink

The writing experience I gained in my Civ Pro class far outweighed the education provided to me in two semesters of Legal Writing. My Civ Pro professor decided against the typical final and had us write a brief instead. Whereas Legal Writing was arbitrary and nitpicky (all about "canned cases" and "transitions") Civ Pro writing was substantive and informative (how to characterize the case, large scale mechanics of presenting an argument, etc). My opinion was strengthened by my summer experience with a state supreme court, which required alot of writing on my part and exposed me to some not so great writing from real lawyers.
Re: shortening law school to two years, I think we've already got enough of a tech-school mentality. Other terminal degrees take around 6 years. Our credentialing is already behind the curve there-- let's not make it worse.

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