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September 07, 2013

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E

Very good points about the failing of undergraduate liberal arts education as part of the problem. I also think that we often lay aside the failings of law practice. My own view is that the first few years of law practice need to be radically restructured (in terms of responsibilities, compensation, and billing rate, at the larger law firms), and with it perhaps the larger reform that is coming (whether desired or not) to the business of law: project-based billing and lower (much much lower) PPP in biglaw. My own view is that the failing is not a failing of US law schools, it is deeper and more structural, and solutions that focus on one piece (2 versus 3) are myopic. Your contribution about the issues raised by pre-law education are welcome.

anon

E:
Law faculties, to the extent they become more and more uninterested and uninvolved in the practice of law, have contributed to the structural issues you mention. Just as teh Harvard MBA model, in my view, has fostered the most ruthless and dysfunctional "finance" industry perhaps ever known.
Law faculties can't pretend to have had no responsibility in building those structures, albeit unwittingly in most instances.
The "first few years of law practice" in "BigLaw," which is only charitably known as "legal practice," is all most of the junior faculty have ever known.
Were persons recruited who are more experienced and less immature, and more tightly fit into the legal community their students are expected to join, modern faculties could easily overcome the sort of obvious gaps in undergraduate education to which the main post refers.
The fact is that, as many have observed, too many folks are attending law school, and part of the reason for that is that too many folks who don't care about the practice of law are running those schools.
Training in the law was once designed to be training in the law, not intersections. Return to that principle, and most of the "hot" issues will resolve.

E

Absolutely. Personally, I'd like to see some of the doctrinal courses covered at a basic level in undergraduate liberal arts education (and basic law and government covered more thoroughly for the high school degree), but absolutely, I agree, a change in the complexion of faculties would help a great deal. Though I am a fan of history and theory, and would have done 4 years had I had the choice. And I think people who can think well, write well, and see the biggest of big pictures do make for better lawyers. I just think that focusing on 2 year versus 3 year ALONE overlooks not only the failings of the undergraduate preparation but also the structural failures of the law firm practice model that follows.

The lack of emphasis on writing even in our high schools is deplorable. On the importance of writing I agree violently with Jeff.

anon

E: Good comment and I agree whole heartedly.
The only point of possible amplification is this: I agree completely that a lack of emphasis on writing in high schools and colleges is deplorable.
But, that circumstance doesn't necessarily mean that law schools must admit those students who clearly lack the basic skills necessary to study and then practice law.
Faculties more attuned to the mission they purport to have undertaken would know this and act accordingly.

BoredJD

The problem is this already happened- there was a push to include "legal writing" as a class. Like many reforms of its nature, it failed or was shunted to the side because professors, by and large, do not want to make writing part of the main curriculum because that would involve effort on their part, which would take away from scholarship, which is not why they left the practice of law. As a result, legal writing is a single class, usually taught by adjuncts and sometimes not even graded.

Writing could be taught if professors made grading and giving feedback on writing an integral part of each class.

"At the very least, access to legal education also involves crucial questions of pedagogy and course-content: it’s more difficult to motivate social marginalized people to apply to law school, or stay in it, when law school is designed to teach relatively conservative approaches to law. Access to legal education also concerns questions of financing legal education, which are somewhat distinct than simple cost questions."

You haven't even begun to show that the current system actually produces any pedagogical benefit aside from giving students (1) a credential that lets you take the bar, (2) some range of job prospects. It is about the cost issue, because you're telling socially marginalized people that they need to mortgage their futures and spend three years out of the workforce, and you haven't even shown that law school right now produces "a broad repertoire of thinking and communication skills."

anon`

"legal writing" programs are, unfortunately, something of a cruel joke.
They usually involve taking first year students and putting them in a marginalized and ineffectual pass/fail program where canned assignments produce canned "briefs" and other meaningless exercises are assigned (e.g, cite checking, a hopelessly useless activity for first year students).
The students just get together on the "writing" assignments, and produce a form of "writing" that can hardly be called that.
These programs rarely provide training in how to think about a legal problem. Should there be any doubt, ask any first year prof who knows what is going on in these "writing programs" (there are few of these) how well those programs prepare students to take a final.
Once again, naive profs, poorly trained themselves (or not trained at all) and so disconnected from the realities of the practice of law, really have little clue about how to train and prepare students to become attorneys. Those with Ph.D.'s in intersections have little to offer in terms of designing effective "legal writing" programs because they don't know themselves how it is really done.

MacK

My concern about the 2/3 year debate is that it somewhat misses the real issue - that law schools are not teaching or requiring courses relevant to the future practice of law. The problem with "experiential learning," learning by doing, is that you can only learn about what you do. Large UK firms, faced with this problem used to rotate trainees through departments. If law schools used the 3-years to make legal education more comprehensive this would address much of the issues. Instead what we see is a constant determination by many law professors to use the non-doctrinal courses to imply some pedagogical value to their current hobbyhorse/scholarship.

I would like to see law schools actually try to go beyond the bare credit requirements set by the ABA and add the option, after credit requirements have been met, for 2Ls and 3Ls to "audit" courses and have their attendance reflected in their transcripts, things relevant to legal practice - to being a good lawyer, rather subjects that are primarily relevant to the law professors and his/her interests - the notorious "law and [my current enthusiasm]" seminar. If law schools focussed on using the third year to provide a better, more rounded legal education, and not to simply justify the law professor's vaunted scholarship - it would be less questioned.

This is a list of the sort of courses I want to see on a candidates transcript - covering even a significant chunk could easily require 3 years.

Doctrinal Courses
Torts
Constitutional Law
Civil Procedure
Criminal Procedure
Property
Contracts
Legal Research & Writing

Additional Doctrinal and “hard” law
Criminal Law (substantive)
Corporations
Securities Law
Business Organizations (partnerships, LLCs, PLLCs, LLPs)
Bankruptcy
Professional Responsibility
Law Firm Accounting
Corporate and forensic accounting
Introduction to Domestic Relations
Introductory Intellectual Property
Patent Law
Copyright Law
Trademark Law
Know-how & Trade Secrets
Design Rights Protection
Antitrust & Competition Law
Legal Systems (including non-common law)
International Trade & Customs law
Evidence
Advanced Pleadings (drafting, motion practice)
ADR – Arbitration and Mediation
Contract drafting
Construction & Interpretation (Legislative, Contracts, Patents – link with legal history?)
European Community Law
Insurance Law
Tax
Advanced Corporate Taxation
Advanced Individual Taxation
Economics for lawyers
Antitrust (with optional state antitrust, European competition law modules)
Administrative Law
Employment Law
Advanced Employment Law
Consumer-orientated financial regulation (truth-in-lending, regulation of brokers, mortgages, foreclosure, investment regulation, etc.)

How the world works courses
Investigative procedures
Document management in discovery
New technology for exhibits, courtroom presentation, document management, law offices in general
Managing expert witnesses
Interview technique (and staying inside the rules)
Examining witnesses and depositions (how to draft an examination outline, allowable questions, objections, when to stop, allowable witness preparation, routine for depositions, making sure you always ask the standard questions, open questions, leading questions, getting a good transcript and reading the transcript as you ask questions (will it be intelligible?), time limits)
Basic opinion writing
Legal billing and law firm economics
Judges, Arbitrators and how not to piss them off
Police procedure, prosecutorial procedures and pleading
Using private investigators (and how to make sure they don’t get you into trouble)
Client relations
Negotiation skills
Government and agency structures (who does what to whom, who calls the shots)


MacK

And I forgot Wills & Estates

Jeff Redding

anon: Could you identify an area of law that does *not* involve intersections or, in other words, an area of 'pure law'?

BoredJD: That's not my experience with legal writing. There are serious issues pertaining the status of legal research & writing faculty, and your comment reflects an attitude that they are not 'real faculty,' which I have many problems with. I have found LR&W faculty deeply committed to their students, taking them along a very long and painful process to break down their preconceived ideas about writing, and to get them somewhere much better. Faculty like myself, as well, have taken courses (Comparative Law in my case) that were primarily exam-based and converted them to paper-based. I would love to spend a post or two explaining that process, and its reception, but that's another post and conversation. But do come visit sometime; you're always welcome to sit in.

John Thompson

"We do Socratic(ish) inquiry in law school because it fosters a certain kind of thinking."

At its best and in the hands of a gifted teacher, maybe. From my experience, I agree with Deborah Rohde's assertion (see here: http://www.youtube.com/watch?v=kZ8coYqbij0) that it's used because it's cheaper and easier to use with large numbers of students than other types of instruction which require more direct student feedback. There were at least two classes that first year where I routinely thought that my time would have been better spent reading an E&E for the same concepts. You may argue that I simply had an atypically bad experience with pseudo-Socratic inquiry, or that I just wasn't academically prepared to take advantage of what was offered, but there are a lot of law graduates who agree with me.

"But such surface talk is what much of the ‘2 v. 3’ debate deals in, in the process avoiding a more serious debate about what we fill any number of years of (legal) education with, and what kind of lawyer—and, indeed, what kind of person—we want to emerge from whatever educational enterprise/s is/are settled upon."

What sort of lawyer do you think your school produces right now? Is that lawyer competent to represent a client even without a mentor in a firm or government office? Of the graduates who weren't hired by other lawyers, how many would you want to represent you?

As I said in reply to someone else on this topic, it's not that a 2-year JD is better than a 3-year JD. It's that it's unlikely to be substantially worse, barring some fundamental improvement in how law schools teach. And of course, that kind of fundamental improvement is made implausible by all law professors being highly successful and satisfied end products of the current system.

Jeff Redding

MacK: I think you are totally overlooking and failing to respond to the central observation of my past couple of posts: the way in which debates over law school curriculum and length cannot occur in a vacuum that overlooks the kind of education—and its many deficiencies—that undergraduates are getting in the United States. As a result, your proposals come off in way that you perhaps don't intend, i.e. as recycling the basic model of what we already have.

I'll add, I find it surprising that you don't find the irony in our own position: you adopt a quite critical, almost lefty stance towards the current law school model, but then try to cement an uncritical approach to law that is largely what we already have right now. I appreciate your critique, but you really need to start owning it and think about how you got to this position... and allow others that same possibility.

MacK

Jeff:

I am hardly uncritical of the law we have - but to achieve things in the law, including real change, you need to have a good knowledge of it. Too many law school courses are "policy" courses and even more are frankly not about law at all - but rather about some passing fancy of a law professor who really does not want to practice or teach law.

As far as recycling the basic model of what we have now - much of my issue is that the model has been broken by law professor's obsession with so-called scholarship and often ineffectual social activism. Hard though you may find it to believe my family has always been involved both in policy and activism - and nothing is more important when representing people who need help that a solid and comprehensive knowledge of the law. It is all well and good to spout shibboleths but can you get anything done?

So to take my aunt - a noted civil rights lawyer - she points out that the most important experience she had was as a junior lawyer in a large law firm 40 years ago, dealing with consumer credit - as a result she had a very good knowledge of a key aspect of her clients' lives when she set up a free legal aid clinic. Similarly, a comprehensive knowledge of landlord and tenant law, or employment law is of much more importance to advancing social justice than any amount of "critical legal [and ....] theory."

So when you say I need to start owning my critique - what annoys me is that so many law professors seek "Cheap Grace" when it comes to the social justice that they advocate - and so many are unwilling to own that reality. Too many law professors want to teach to their enthusiasm and not to the nitty gritty of what a lawyer should know to be effective. Take my list - can you say that a student at your law school could manage to take every subject on that list - that their would be enough opportunities per semester to avoid scheduling clashes? That there are in fact professors qualified to teach these subjects? Because knowing this stuff matters...and if the 3 years would be used to teach more of it, that would make a huge difference.

anon

Jeff:
I'm using the term "intersections" to broadly refer to persons holding Ph.D.s in fields other than law, who enter the legal academy claiming to know about the "intersection" of law with whatever happens to be the unrelated field of their specialization.
Of course, the law "intersects" with every other field. So what? That isn't the point.
The point is that those operating law schools are thrilled by the prospect of hiring for their faculty persons (leaving aside other immutable characteristics that law faculties favor) who usually have little or no experience in practice (and by this, I mean to include those who have practiced for a few years in BigLaw), and those who don't like, don't respect and never wished to be attorneys.
This is closely related to the operation of law schools. Agreeing to teach remedial high school skills to law students by creating ineffectual "programs" that waste time and accomplish nothing is entirely consistent with the misguided hiring practices to which I have referred.
These programs make perfect sense to those who don't know about, and don't care about the practice of law.

MacK

Jeff:

I would add an issue about both undergraduate and legal education. The weakness of the teaching of writing is very much a function of professors (and indeed high schools) embracing the multiple choice exam - that was not part of my high school education which was not in the US. I spent 6+ years writing some 10-18 essays a week, in 3 languages longhand (which is why my typing is still grim), in an exam system that was heavily essay based.

However, there is another aspect of current education methods is that there seems to be a slow erosion of the ability to apply judgment and deal with ambiguity. My partners and other legal colleagues complain that many new lawyers seem to find it very difficult to accept a reality in which there are rarely "right" answers, just better ones and worse ones. I have seen a lot of associates and mid-level lawyers spend days on legal research and write massive memos devoid of any decisions as to what is relevant or important - I have had to read some of the memos. My suspicion is that this is a result of top students being those who never put a foot wrong - but always were taught to tests that had somewhere one "right answer" and four wrongs (and presumably complained bitterly if exams had questions with no clearly right answer.)

A non-lawschool example of this phenomenon of teaching exams with tested "right answers" is say Professor Richard Quinn at the University of Central Florida business school - who became a "folk hero" for his reaction to a cheating scandal in his course. See

http://www.tampabay.com/news/education/college/ucf-business-instructor-becomes-folk-hero-after-taking-hard-line-on/1133718

It seems though that no one inquired into the details of the cheating scandal. It turns out that Quinn had been using a bought in textbook for his course - that came with a battery of multiple choice questions from the publisher. The scandal was that his students worked out how to get the battery of questions from which he drew his exam paper along with the publisher's answer key. To me of course this raises an interesting question - who was cheating who? The professor who taught a canned course with canned questions, or the students that regurgitated the canned answers?

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