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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