As soon as our new Dean announced my appointment as Associate Dean for Faculty and Curriculum, my email inbox started to fill with various messages relating to law school administration. Among these messages was one that linked approvingly to Paul Lippe's "Welcome to the Future: Time for Law School 4.0."
On my first spin through the article, I thought it was just another rant on legal education, but Bill Henderson caused me to take a closer look. Bill uses the article as a springboard for talking about the apprenticeship model, but I am not sure Bill fully appreciated Paul's radical proposal. Bill asks, "is it appropriate to shorten law school to two years?" But that is not what Paul is proposing. Here is a quick outline of Law School 4.0:
The aspiration: "Law schools will have to produce fully functioning lawyers who can quickly become economically viable--not just proto appellate clerks." (More ho hum. This is a restatement of that age-old demand from practicing lawyers that law schools produce students who can "hit the ground running.")
The solution: "An accelerated curriculum, with no more than a year of case method, a year of clinical, and then a year of externship with subject area focus, along the lines of medical school."
That last bit is where I did a double take: law school is technically three years, but law students receive only one year of classroom instruction!
Given that clinical instruction is much more expensive than classroom instruction, I think it's fair to say that Paul's proposal would increase substantially the debt burden of most law graduates. And while we might be able to argue about it, I am pretty confident that Paul's proposal would not produce fully functioning lawyers. Even if a year of clinical work and a year-long externship taught them substantial lawyering skills, graduates from Paul's law school would suffer from having a much narrower exposure to substantive law than current law graduates. My guess is that Paul would concede that fully functioning lawyers need both lawyering skills and a knowledge of substantive law,* and his proposal simply strikes a different balance on instructional priorities than current law schools.
All law schools attempt to balance these instructional priorities, but the hard question is, what is the right balance? As I have observed in a prior post, "More this and more that inevitably means less of something else." So if you are going to reform legal education, you need to identify the opportunity costs. To his credit, Paul is willing to name his sacrifice: instruction in substantive law.
But we need more detail, and it should be easy to produce. What I want to know is this: if you had only one year of classroom instruction -- that's about 30 credits worth of classes -- what would you teach? Or, stated another way, what would you leave for the students to learn on the job? Once we know that, we can talk more intelligently about whether students would be better able to acquire missing lawyering skills (under the current system) or missing substantive knowledge (under Paul's proposal) while engaged in the practice of law.
* When I refer to knowledge of substantive law, I intend to include the skill of legal analysis, which is the primary skill taught in many substantive law courses. One possible implication of Paul's proposal is that law students would obtain less training in legal analysis, one of the areas in which law schools shone, according to the Carnegie Report.
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1. Posted by David Easwaran on July 6, 2009 @ 9:55 | Permalink
I think there are two improper assumptions with this argument: 1) that legal analysis is the primary skill taught in law classes; and 2) that exposure to 3 years (rather than 1) of substantive law is actually helpful for graduates.
Regarding the first point, legal analysis may be the primary skill taught in the first year, when there is a focus on "learning to think like a lawyer," but in second and third year classes the primary focus of the classes seems to be the state of the law in a particular field. From my anecdotal experience, teachers largely approach these classes with the goal of teaching the material.
Regarding the second point above, there are a few reasons why the substantive knowledge provided by the last two years of law classes is not that valuable.
First, given how quick semesters are, even classes covering particular fields only generally skim the relevant substance, and a lawyer will need to learn the details of the substance on the job as it is. To further this point, law is becoming much more specialized, and as time goes on, each field is becoming more complex and detailed. A one semester course just isn't going to teach that much, and really is only practically useful for a lawyer who DOESN'T work in the field, but wants a general idea of what it entails. Someone who works in a field will need to learn the particulars of his/her practice on the job.
Second, the substance of the classes is usually not retained long past the exam. Ask any transactional attorney about the rules of evidence for proof. Maybe this is practical experience for something like appelate advocacy, because it teaches the ability to cram a lot of information for one particular event (studying for a test simulating prepping an argument), but this is probably a charitable stretch of an argument anyway. At any rate, I'm not convinced that these last two years of classroom learning provide much added value because the information is generally not retained sufficiently to prove useful in practice.
Therefore, to bring this argument full circle, I don't think three years of classes are even that helpful; legal analysis really isn't stressed in the last two years, and the substance covered is largely forgotten. As such, removing these two years of classroom learning doesn't entail subtracting much value, so the opportunity cost of substituting other forms of training is marginal.
Ultimately, the fact that 3 years of class is the status quo and institutional methods are entrenched does not support a belief that it's the best way of training new lawyers. Any strong argument against reform that reduces to "but we'll lose the benefits of the current system," will need to actually show what those benefits are.
2. Posted by DCM on July 6, 2009 @ 14:42 | Permalink
I agree that the second and third year of substantive law classes are not all that valuable, in part for reasons stated by David.
Additional classes in legal writing (briefs and contracts) and speaking / rhetoric would be more useful. An additional class or two in civil procedure would be useful for those who want to be litigators. Unfortunately, it is my (unscientific) conclusion, both from experience and from reading cases, that probably half of all cases are determined or substantially affected by civil procedure issues as opposed to the substantive law or merits of the case. A course in “proof of facts” would be useful as well. Law school would make you think that knowing the law is all there is to cases. Proving the facts is at least half of the matter - but all you do in law school is read cases where the facts are typically set forth in the first paragraph of ten page opinions.
Also a class or two in the business of law. Most law school professors pride themselves in professing to know nothing about this sordid and despicable area of the law but far more law students will become attorneys in private practice than will become law school professors, politicians or judges. These classes should include not only the traditional aspects of the business of law, but also such things as rain-making, client control, law firm politics and judicial “cronyism”. It is a fact of practicing law that if you have a case in front of some judges and your opponent is their campaign manager or pays for their golf vacation that you probably won’t do too well. Knowing this is just as important as knowing Code Section 543.345(A)(i)(c). (Just made it up as a substitute for any mythical statute - which is subject to change the day after you finish your second year substantive law class on the topic related to the statute.)
3. Posted by Gordon Smith on July 6, 2009 @ 14:49 | Permalink
Great comments from both David and DCM. I hope others chime in, but one quick note about the extent of legal analysis in the second and third year: the first year tends to focus on common law analysis, and the second and third year tend to have more statutory/regulatory classes, as well as any transactional courses (if those occur at all). So while I largely agree with the point that many professors focus on coverage in the last two years of law school, I think there is other stuff going on.
4. Posted by MAW on July 6, 2009 @ 20:45 | Permalink
While I think there is room for improvement, I just don't get the notion (which appears to have a lot of proponents) that the second and third years of law school are not valuable.
As David notes, “law is becoming much more specialized, and as time goes on, each field is becoming more complex and detailed.” That’s an argument for MORE substantive training in law school, not less. For most people who want to practice in complex areas, apprenticeship alone won’t work.
Take securities law as an example.
If you have a sophisticated capital markets practice, you need to have a deep understanding of the securities laws. Clients want quick answers to very complex questions that you don’t have time to look up and absorb on the fly. There is a complex statutory scheme, a plethora of administrative rules, regulations and guidance, a substantial body of case law, and an incredible amount of lore. You need to be steeped in securities law if you want to practice in the area.
Law firms simply cannot teach securities law the way a law school can (if at all). As I noted in my remarks at the recent AALS Conference on Business Associations (“What Law Schools Should Teach Future Transactional Lawyers: Perspectives from Practice”), law schools have a comparative advantage over law firms when it comes to transmitting substantive knowledge. A thorough understanding of complex material like this requires voluminous outside readings and in-class lectures for a concentrated period of time. I am not saying that law schools can teach students to master the securities laws. Mastery requires years of practice. Rather, in today’s world, law school training is necessary (even though not sufficient) to ultimately master this subject.
Indeed, echoing David’s point, securities law is so complex a topic that if a student thinks his or her practice will include the area, a single three or four credit class is not enough. But the answer then is to add MORE class time, not to eliminate what you have. (And we haven’t even touched on the accounting, business associations, finance, administrative law and other courses the securities lawyer should take). How can you do that all in one year (or even two)?
Coincidentally, I just posted a draft of my remarks last night. It’s available here: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1430087.
5. Posted by Sarah L. on July 7, 2009 @ 8:56 | Permalink
Let me second MAW's comment and add that tax law is a similarly complex field (as MAW mentions in his remarks posted on SSRN). Obviously not everybody needs to take the more advanced tax classes (though I do think corporate tax is useful for anyone who plans to be a transactional lawyer). But for those who plan to practice tax, taking, say, partnership tax and international tax is crucial. These are subjects that are in my view extremely difficult to "pick up" while practicing. It's possible that students won't, as the first commenter notes, retain much of the specifics of this information after the class ends, but having seen the material once and knowing the basic concepts and the structure of the code and regulations helps tremendously when issues arise in practice.
6. Posted by DavidE on July 7, 2009 @ 10:11 | Permalink
Let me present a scenario showing why second and third year classes are not valuable:
Consider a partner in a securities law practice group that has two resumes sitting on his desk for a single entry-level position. One resume is for a student who graduated from Harvard law. The other is a student who graduated from Florida State law. The student from Harvard hasn't even taken BA. The student from Florida State has taken every available relevant class on business and securities law. Who gets hired?
I'm sure you see my point.
At the end of the day, as we both seem to agree, every lawyer in a specialty field learns the majority of the law on the job because of how complex these areas currently are, so let's not pretend we are doing much good with these field-specific classes.
That said, if the status quo doesn't work, what should we do?
I agree that we could train better specialty attorneys by adding more specialty field classes. But, let's say we train students to work in securities law and a big economic crisis hits (sound familiar?); what will those graduates do when they can't find jobs? They haven't been prepared to do anything else because of the extreme amount of focus they have placed on this one field. This doesn't seem like a tenable means of preparing students generally. If this education were offered in an LLM I would be on board (tax LLMs are currently a good example of this, I think).
So it's precisely for this reason that specialty practice classes in fact cannot be the focus of law school because only a tiny fraction of JDs actually perform that work. Given the exorbitant cost of tuition, we need to maximize the effectiveness of the training that every student receives. Let's use the time and money to teach skills that every attorney needs anyway (client interaction and business generation, courtroom formality and procedure, motions practice, contract drafting, deposition-taking, etc.). With these skills, any graduate can hang his/her shingle right off the bat if no one is hiring. Maybe not as glamorous, but personally i think law school should train someone to be a lawyer (not an expert lawyer, obviously, but one that can function reasonably in a variety of settings).
Now, if you run a law school in the top 15, you are exempt from having to prepare your students practically because firms will hire them anyway. If your school is not ranked highly, though, it is a moral imperative, I believe, to prepare a graduate to be self-employed off the bat and this requires practical skills training, not simply classroom lectures.
7. Posted by MAW on July 7, 2009 @ 12:48 | Permalink
I’m not sure what your hypothetical demonstrates. Yes, rightly or wrongly, law firms are generally school snobs. They believe students from Harvard are more likely to succeed than students from Florida State. They’re also grade snobs and think someone with a 4.0 is more likely to succeed than someone with a 1.0 from the same school. They also think someone who has taken more relevant courses is more likely to succeed than someone who has not. Comparing candidates is an art, not a science, and when you get two candidates and one is better in some aspects but not in others, you have to choose. I don’t know enough about Florida State to answer your question. But I do know that, for my firm, I’d rather have someone in the US News 25th ranked school in the top 25% of his or her class with 3 years of relevant substantive course work over someone in the top 10% from the number 1 ranked school with only one year.
I don’t know anything about your practice, but I think our views may differ because we come from different worlds (as they say, when you’re a hammer, every problem is a nail). You say, “Let's use the time and money to teach skills that every attorney needs anyway (client interaction and business generation, courtroom formality and procedure, motions practice, contract drafting, deposition-taking, etc.).”
Well, two things come to mind.
First, as I mentioned in my remarks (did I mention they can be downloaded here: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1430087 ) people often confuse skills with expertise. So, for a variety of reasons, while I agree, law schools can and should teach things like contract drafting, I am less convinced of the value they can add in teaching things like client interaction and business generation (it seems to me the latter are the types of “skills” more suited to an apprenticeship model).
Second, that term “EVERY ATTORNEY” can’t be right. I’ve been practicing over 20 years and have never used courtroom formality and procedure, motions practice, or deposition-taking. The skills needed for a transactional lawyer don’t neatly overlap with those needed for a litigator. (I’m not saying there is no overlap, just that there are significant differences). Forcing me to spend time on litigation skills instead of the securities, corporate finance, commercial law and other courses I took would have been a waste.
So perhaps we can agree on this. Law schools should offer a variety of substantive courses and skills courses and provide students sufficient guidance to make informed choices among them. Then the students can make their own opportunity cost decisions.
By the way, as you can tell, I think students should take some responsibility for their own training. That’s why I’m not troubled by your belief that the last “two years of classroom learning [do not] provide much added value because the information is generally not retained sufficiently to prove useful in practice.” First, I don’t think its true—I think plenty of the important information is retained and built upon. And when its not, who’s fault is that? I'm with Dorthy Parker on the answer to that one.
8. Posted by DavidE on July 7, 2009 @ 14:59 | Permalink
The hypothetical was intended merely to showcase that many firms don't place as much value on relevant substantive coursework as they do on school prestige. Because school prestige certainly is not a particularly compelling means of judging an individual, that firms place less emphasis on coursework shows how little value they feel such coursework brings. Maybe I should have left the hypothetical out, but I thought it was a relatively powerful means of conveying the idea.
True, my "every attorney" comment was not accurate. I meant that I believe it is important for every attorney to have skills training, even if some skills may not be employed later in practice.
Also, my point about second and third year classes not being very useful was not to say they are not useful at all, but to say that other types of training could in fact be more useful.
How about this for some middle ground: shorten law school to two years, and leave first year alone. Second year should have a skills focus, with some oral advocacy, document drafting, and client communication emphasis, depending on a track that a student chooses. Follow this with an increase in the number of LLM programs, which can fill in the classroom void with specifically tailored fare for the practice field of choice. Students going on to low-level general practice will be able to do just as well after year two. Students wanting to get involved in more complex practice areas would have to do an LLM, but such a program would actually exists to meet that need.
Sorry for the relative brevity; I've got some real work to do today. ;)
9. Posted by Jake on July 7, 2009 @ 19:09 | Permalink
The professoriate should wake up and realize that "skills based" instruction in law schools is a chimera. Gordon correctly observes that second and third year instruction in substantive law rewards the law student, or at least those who value assiduous study over text messaging.
Law schools, and the accreditation czars at the ABA, ought to adopt a bifurcated approach to legal education. Some law schools can offer the "traditional" curriculum. Others can offer the "skills based" course of study. (My personal view is that any law school that attempts to offer both will succeed at neither.)
The bifurcated approach to law school accreditation and curricula would have the virtue of letting the market decide by letting consumers of legal education choose which way they want to go. I do not mean to suggest that such a market test should identify a "right way" or "wrong way" of teaching the law.
10. Posted by Justin on July 9, 2009 @ 10:29 | Permalink
God forbid the market actually dictate what law schools teach! I attended a top 40 law school, graduated in the top 20% of my class and can honestly say that I learned absolutely nothing of value over that time. I had to relearn all of the substantive law for the bar and couldn't so much as file a pleading or conduct a deposition.
Furthermore, I would argue that my writing and thought processes when I left the ivory tower were considerably worse than when I came in because we do very little thinking or writing over the course of those 3 years. No wonder clients are reticient to pay top dollar for our largely inefficient and worthless services when we enter the market.
I apologize for being a Cassandra, but if you all can't see that the arguments you use to justify continuing the current training model satisfy no one but academics, then maybe it's all the better that you don't see the walls crumbling around you.