October 28, 2008
Three Models of the New Law School
Posted by Gordon Smith

Yesterday, a legal writing instructor reminded me of this infamous post, in which I suggested that Dean Erwin Chemerinsky avoid creating a "legal writing program, moot court competitions, student-edited law reviews, clinics, or any other co-curricular offerings." That's a post I should have written backwards. The conclusion was premised on the idea that U.S. law schools would be migrating to two-year programs, an idea that seemed somewhat ridiculous at the time of my post (despite a couple of existing programs at Southwestern and Dayton), but gained some traction this past summer when Northwestern University Law School announced plans to "begin offering students a chance to get a law degree in two years instead of the traditional three."

As fate would have it, Austen Parrish just posted on this topic at PrawfsBlawg. Like most commentators, Austen is cautiously open to the idea, but he set me to thinking about the curricular innovations at Stanford. I blogged about Dean Larry Kramer's views on the first year of law school here, but what about the last two years? Dean Kramer: "Law schools have traditionally taught one thing: how to think like a lawyer.... [Most students learn to think like lawyers in the first year of school, meaning] it’s the second and third year where we are pretty much failing our students."

So if the first year of legal education is about building blocks, what should happen in the last two years? Again, Dean Kramer from a 2006 announcement of his ambition for curricular reform:

Lawyers need to be educated more broadly—with courses beyond the traditional law school curriculum—if they are to serve their clients and society well.”

“Business, medicine, government, education, science, and technology have all grown immensely more specialized,” Kramer said. “Legal education must adapt. How can a lawyer truly comprehend and grapple with a complex intellectual property dispute without understanding anything about the technology at issue? What counselor can effectively advise a client about investing in China or India without understanding their particular legal structures, to say nothing of their different cultural expectations and norms?”

To serve clients capably or address major social and political issues, lawyers now must work in cross-disciplinary/cross-professional teams, particularly given that they work in increasingly sophisticated industries and fields—engineering, medicine, biotech, the environment. They must also practice law in a global context. “Where only a tiny number of graduates used to practice law across national borders, today only a tiny number do not,” Kramer noted. “International law, particularly the law governing private actors in the international arena, has gone from the periphery to the center, and law schools have been scrambling to adapt.”

Although lawyers were historically called upon (and trained) mainly to identify problems, they are increasingly being called upon to help solve them. To do this, especially in a world where the problems have grown more intricate, lawyers need to understand what their clients do at a much more sophisticated level than can be taught through the existing law school curriculum or in the traditional law school classroom.

This is an inspiring pitch, though the current SLS website does not suggest the implementation of revolutionary reforms (see here on the popularity of Stanford's joint programs). Yet. My guess is that wholesale reform of the later years of law school is not much easier than reforms of the first year. Inertia is a powerful constraint.

Even if Dean Kramer managed to implement his aspiration, would Stanford "provide a model for legal education generally," as the 2006 announcement suggests. Or is "Stanford Law School is in a unique position among law schools to broaden the curriculum because of the concentration of top rated graduate programs on one campus"? Hmm.

The big reforms in legal education over the past several decades actually provide substantial evidence of the difficulties faced by reformers. The biggest reforms have involved the creation of clinics or other additions of professional ("skills") faculty, which suggests to me that it's much easier for tenured faculty to outsource reform than to create it from within. The result, as I observed in the comments to the infamous post, is the replication of the "old apprenticeship model of legal training, except that it occurs in a law school rather than in a lawyer's office." The discussion over there contained this penultimate comment from Ray Ward, who took the time to read and understand my views:

I know you don't denigrate those skills; you just think that teaching them should be someone else's job. A reasonable person might agree that it doesn't matter where the students learn the skills, as long as they learn them. The trouble is that the "someone else" who would teach those skills doesn't exist. So if law schools don't teach them, then they won't get taught.

So we have three models of the new law school: (1) the current trend favors a three-year law school with substantial skills training, especially in the third year; (2) the two-year law school that focuses on classroom instruction is still limited to a few schools; and (3) the three-year law school that follows Dean Kramer's model of interdisciplinary training, which no one has implemented and most schools would not be able to implement, given other institutional constraints.

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