May 16, 2009
The ABA's "Out of the Box" Committee on Legal Education
Posted by Gordon Smith

In cleaning up my home office today, I stumbled over a half-read series of "thought papers" from the ABA Section on Legal Education -- Out of the Box Committee. So I decided to finish the task.

The Committee describes its work as "the legal academy's most recent attempt at broad-ranging critical introspection," and though I haven't read their previous publications, I enjoyed reading the thought papers. Not because they are terribly original (they aren't), but because they are not watered down by the need to achieve consensus. The papers have an attitude. A few highlights:

  • Globalization: "Given the inescapable march of globalization and the pervasiveness with which the law permeates the U.S. society, law schools have a unique obligation to prepare their graduates to practice in a global environment. It is unfortunate for the students and disastrous for the country that most law schools have failed so miserably. Our efforts have been shameful."
    Suggestions for improvement include ...
    • Valuing international experience as much as PhDs among new faculty hires
    • Changing tenure standards to affirmatively encourage international and comparative scholarship
    • Recruiting foreign-trained academics for faculty positions
    • Changing accrediting standards to allow for more innovative affiliations between U.S. and foreign law
    • These changes would lead to changes in the curriculum: more international perspectives in the classroom and more opportunities to study meaningfully (i.e., not in a typical summer abroad program) outside of the U.S.
  • "Law and ...": In a very sarcastic entry, the author chides law professors for being dismissive of traditional legal analysis, which is said to be "fine for mere lawyers and judges, but is beneath the dignity of the true academic." If you believe this diagnosis, then you might worry about the implications: bright law students do not receive sufficient encouragement to pursue academic careers, appointments processes place too much weight on serious post-law school scholarship, and law faculty are "increasingly dominated by ... people [who] are brilliant neither in the 'law' nor in the 'and.'" And for reasons unexplained, these "law and" professors "are not interested in teaching their students (almost all of whom will become lawyers) the 'law,' and even when they are interested in teaching the law, they're often not very good at it." (That's a fine piece of reasoning right there.) The cure here is obvious: hire more brilliant lawyers and let them pair up with scholars from other disciplines, if that sort of work would be helpful to anyone.
  • The four-year law school: No, I am not kidding. One of the papers makes the case for extending law school to four years "to retain the competitive advantage of American lawyers in an increasingly globalized world." It seems to me that globalization pushes the other way. Given that law is an undergraduate degree in other countries, U.S. lawyers are already spending 1-3 more years in the classroom than their counterparts in Europe, for example. If globalization knocks down barriers to law practice among nations, I suspect we will observe more pressure to reduce the length of law school, especially given concerns about student indebtedness.

The basic points here are quite well worn and together they add up to a unified complaint: law schools do not adequately train law students. People both inside and outside the academy are forever complaining about various supposed shortcomings of legal education, but the longer that I work in legal education, the less patience I have for these complaints. The reason? The complainers seem to have no concept of opportunity cost.

More this and more that inevitably means less of something else. Of course, we could expand the length of legal training, as suggested by one of the thought papers, but that proposal has its own opportunity costs, and they are substantial. Moreover, as noted, it's just not going to happen. So this is what I want to know: given three years for law school, if you want more globalization or more ethics or more skills training, what are you going to sacrifice to get that thing? If you can tell me that, then we can have a decent conversation.

With respect to the Committee's thought papers, one proposal was to have fewer interdisciplinary professors/courses and more professors/courses focused exclusively on law. Would law graduates be better in any meaningful sense if we made that trade? Another way of asking that might be whether law graduates in the 1960s were better than law graduates today.

Another proposal would encourage more time on matters related to globalization, presumably at the expense of time spent on domestic law or under the tutelage of a master of U.S. law. What's the baseline here? When I was in law school, I took classes from a Swedish professor, a German professor, and a British professor. And I wrote a paper on the EU Merger Regulation under the supervision of Diane Wood. All of that was in the 1980s. So we want to ramp up from that to something more inclusive of global concerns? When do we know that we have enough globalization in the curriculum?

By pushing back on the would-be reformers, I am not suggesting that law schools have no need to improve, but rather than "improvements" are largely a matter of taste, involving difficult trade-offs with no clear metrics for evaluating the effect of changes. The condescending tone of many of the thought papers suggests that the authors have not come to terms with the difficulty of assessing these trade-offs.

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Comments (5)

1. Posted by John Steele on May 18, 2009 @ 18:05 | Permalink

it's tough to beat an informed market for making choices that involve trade-offs. so why not let the students decide these issues? they have plenty of motivation -- given their debt loads. and if you feel that they lack sufficient information to make informed choices (i don't feel that way, fwiw), then we can rely on professors and law firms to pitch their suggestions to the students.


2. Posted by Gordon Smith on May 18, 2009 @ 23:30 | Permalink

John, Ok, I'll play ... how would you suggest implementing your proposal? Many (most?) schools place students on committees, but I assume that you think this is not enough, right?


3. Posted by MAW on May 19, 2009 @ 7:49 | Permalink

Gordon,

I couldn't agree more. As I've said in response to proposals to integrate integrate skills training into existing substantive courses:

"In most courses, as it is, there is barely enough time to teach the substantive law adequately. While skill training exercises are useful in developing skills, they are inefficient in transmitting
knowledge. Outside readings and in-class lectures are essential to provide a thorough understanding of complex material. So, substituting exercises for other material in a traditional class would necessarily decrease the amount of substantive knowledge taught. Compounding this problem is the fact that, for skills training to be effective, using one exercise (or even a few) is insufficient. Repetition is essential. So, unless extra class time is added, much is sure to be lost by merely adding skills training to an existing course."

http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1292477

MAW


4. Posted by George on May 19, 2009 @ 8:48 | Permalink

Opportunity cost is the value of the next best alternative foregone as the result of making a decision. You ask, quite rightly, "[W]hat [courses] are you going to sacrifice to get that 'thing'?"

In order to do an opportunity cost analysis, I need to know at least one 'thing': What law school presently provides? What is that 'thing'?

I've been to law school, and I cannot describe what it is I learned or was supposed to learn, nor have I heard an adequate description of what law school provides other than the catch all "to think like a lawyer", or "the foundations of the law". The former is meaningless and the latter borders on tautological.

Further, you admit that there is "no clear metrics for evaluating the effect of changes". Maybe this is case because legal academia (and academia generally) has no clear understanding of what it is they offer or expect students to grasp before they graduate. It takes two points of reference to measure anything. If the first point is unknown, having the second, if you'll forgive me, is pointless. This is not good or bad, some things are just not measurable. Either way, without knowing what law school provides at the outset, an opportunity cost comparison seems unlikely.

Perhaps this was your point.


5. Posted by John Steele on May 19, 2009 @ 9:08 | Permalink

The logistics would be easy, but the politics would be difficult (impossible?).

You’d need info from students and profs. You could start with the profs suggesting what they’d like to teach over the next two years. That document would get published to students, as Berkeley now does (unfortunately, I can’t like to it) at the time that students select courses for the following semester.

No doubt, the profs could offer the students good reasons that students should take those particular courses. Students would also seek that kind of input from practicing lawyers, judges, alums, 3Ls, through course evals, etc.

When the students select their courses for the semester, they’d also select their probable courses for the following two semesters.
Then, someone in administration looks at the gap between student demand and professors’ supply. (At Berkeley, the students analyzed the gap by looking at waitlist data and then debating it online. See link 1 below.) Then the administration closes the gap on the supply side.

You might also think up some incentive structure that would drive profs to close the gap themselves, with less administrative strong-arming. For example, if the prof fails to attract a sufficient teaching load—students multiplied by credit hours—the prof must teach legal ethics. (Just kidding about that.) Perhaps the administration declares that profs have four “free choice” teaching credits per year but only if their load hits a certain number. But either way, by administrative fiat or by professorial self-interest, it is student choice that drives the offerings.

I suppose that the politics of this suggestion render it a mere thought experiment. It would be a massive transfer of power from profs to students. Students are likely to select courses that vary too far from what profs want to teach. (Again, we could offer profs some protected credits per year to soften the blow.) And I expect that there would be heavy selection for skills courses that the profs might be unable to teach—the kind of courses the new Carnegie Report discusses.

But I’d strongly disagree with any suggestion that the students lack sufficient intelligence to choose their courses wisely. Given the ability to choose, information about the utility of the courses, and the motivation of their heavy debt loads, students would make terrific choices. Some of them would still opt for courses like Icelandic Feud Law (a course I wish I could have taken myself). Some of them would continue to take courses in critical jurisprudence, social justice, etc.

Link 1: http://boaltalk.blogspot.com/2009/01/who-sets-our-priorities.html#comments

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