Re-engineering the J.D.
Schools across the country are teaching less about the law and more about lawyering
Posted Jul 1, 2007 7:44 PM CDT
By Jill Schachner Chanen
When Drexel University decided to open a law school, the administrators had lots of choices to make—including how to best approach legal education.
The 100-plus-year-old Philadelphia institution has achieved renown for its engineering and science degree paths built on a cooperative model of education that blends classroom and real world experience. So administrators and faculty decided to stay the cooperative course with the law school, betting that it would prove appropriate for legal education in the 21st century.
The goal, says incoming dean Roger J. Dennis, is a curriculum that “really gets our students embedded in the practice of law early and really trains them to hit the ground running.”
Whether or not Drexel’s approach to legal education will turn out to be the right one, what is surprising is that the university felt it had a choice at all.
Back in the good old days, legal education meant little more than a predetermined set of courses taught by academics using the Socratic method. Nearly every 1L could count on a uniform schedule of torts, contracts, civil procedure and more of the usual suspects. And the upper years allowed for a wider choice of subjects still based on the same pedagogy. It was only when newly minted J.D.s were let out into the real world that they learned how to practice law.
During the past 20 years, members of the legal community started to recognize that this traditional model was not serving the needs of the modern-day legal profession, and they were slowly trying to respond.
But globalization, market pressures and, yes, even the influence of the much-reviled U.S. News and World Report rankings have made innovation a high priority. Curriculum changes range from tweaks to transformations, but what is clear in every case is that today’s law school is not your father’s law school anymore.
“There are a whole series of forces coming together to recognize that the curriculum in law school is in need of more professionalism and more lawyering-centered education,” says Southwestern Law School professor Catherine Carpenter, who was the principal drafter of A Survey of Law School Curricula, 1992-2002, published by the ABA Section of Legal Education and Admissions to the Bar. “There is the notion that a continual, doctrinal Socratic method of instruction may not be the only way to go.”
Carpenter points to a report by the Carnegie Foundation for the Advancement of Teaching as further evidence that there’s a better way to educate a lawyer.
Published earlier this year, the report, Educating Lawyers: Preparation for the Profession of Law, is the latest in the foundation’s series of commentaries on professional education.
And it pulls no punches. It urges law schools to depart from the traditional Socratic method in the upper years and find better ways to integrate into their curricula what it means to be a lawyer and act as a lawyer, says Judith Welch Wegner, one of the study’s authors. Wegner is a law professor at the University of North Carolina at Chapel Hill and the former dean.
“There is a new generation of students, and we need to continue to expose them to the profession and make an effort to help them be more well-rounded—to help them think, to learn to be lawyers, to understand ethics, to work through the realities of having a professional role and having their own personal appreciation about what is important to them,” she says.
The Carnegie Foundation’s report has resonated with many in the legal community. It recommends what it calls an integrated approach to legal education, combining standard doctrinal courses with others that give students a better sense of the profession.
But, despite the widespread agreement with the report’s findings and recommendations, many law schools are continuing to struggle with what type of change is most meaningful for their own unique mission, says Ohio State University law professor Douglas A. Berman. Berman writes about curricular reform and related issues for law schools, their faculties and administrators on his blog, Law School Innovation.
“Law schools historically have been trade schools, where students learn the trade of becoming a lawyer,” Berman says. “Justifiably, over time, that became more of a negative image and then law schools became more of a professional school. That may have been more of a perfect balance—not just trying to teach you the nuts and bolts of the trade but also teaching you to appreciate the pros and cons of the profession. Now we are viewing law school more as a graduate school, trying to give students more of an advanced and sophisticated appreciation of law’s function in society.”
Berman believes this move away from the realities of practice is misguided. He says the better approach is a combination of trade school, graduate school and professional school with “a few tweaks.”
He is joined in his thinking by the newest generation of deans, most of whom now come into the academy with some experience practicing law.
That also dovetails with Carpenter’s survey. The single biggest alteration she’s seen in her study of law school curricular changes is an investment in classes, pedagogy and faculty designed to address the skills necessary to be a lawyer in the modern world.
If change is good, then the question becomes where and when that change should occur. Some point to the rigid curriculum and pedagogy of the first year and say look no further.
Educators in that camp claim that the entire first-year package, which consists of the case-study method of certain doctrinal courses—also known as the Langdellian curriculum after its founder in the late 1800s, Harvard Law School dean Christopher Columbus Langdell—paints the wrong picture of the legal profession for law students because of its reliance on using appellate cases to teach legal thought and reasoning.
“You go anywhere, and everyone has the same critique: Legal education is too focused on the adversarial and the appellate process,” says Harvard Law School professor Martha Minow, who chaired the school’s curriculum reform efforts.
Minow says this critique was one of the reasons that Harvard decided to depart somewhat from its 100-plus-year-old curriculum. Starting this fall, Harvard first-years will reduce the number of hours spent on the traditional common-law courses and mix in three new classes: legislation and regulation, international and comparative legal studies, and problem-solving skills.
The changes, she says, also are aimed at answering another long-standing critique of legal education: That it is too divorced from the practice of law. Though the problem-solving course will certainly incorporate more experiential rather than doctrinal learning, Minow says the reforms also are intended to provide a more meaningful progression and depth of study for students. Exposing students at an earlier stage to more facets of the law opens up more opportunities for them in the upper years, she says.
The changes in Harvard’s first year echo many of those that dean Edward L. Rubin is instituting at Vanderbilt University Law School. But Rubin is taking it one step further. He is rejecting a teaching method based on an across-the-board use of appellate opinions and instead is adding classes based on statutes and regulations. He’s also injecting more original sources into standard case-law review courses like contracts and civil procedure. This approach, he says, allows aspiring lawyers to gain a more balanced view of the practice.
“There are many lawyers in this country who rarely read a decided case but read regulations all the time when counseling clients in matters like environmental law or labor,” he says. “They have to sort through voluminous regulations and comments. And they negotiate with regulators. They don’t sue them.”
He sees similar opportunities to teach the 1L year differently. Instead of relying solely on textbooks with appellate decisions to amplify the doctrine being taught, Rubin now expects the faculty to integrate other kinds of original source material relevant to the class—negotiated contracts in contracts class, along with economic theories on contracts and complaints; and in civil procedure classes, interrogatories and deposition transcripts.
Rubin knows that these changes will not be without critics. “Often people defend the traditional curriculum by saying that we are teaching them to think like a lawyer,” he says. “I say that is teaching them to think like an 1870s lawyer.”
The singular emphasis on appellate opinions also is easing up at University of Detroit Mercy School of Law. The school recently introduced a statutory analysis class that not only shifts the focus away from analyzing appellate decisions but also encourages students to draw on other forms of analysis, such as game theory and statistics.
“One of the problems students have is that they think a client comes in with the words property problemstamped on their forehead,” says dean Mark Gordon. “We are giving students problems that make them draw on everything and analyze what the client needs.”
While some deans are taking aim at their school’s first year, another camp says it is in the second and third years that real change is needed.
“We really have tended to leave students after the first year to their own efforts, in some ways, to simply search after their own desire in what it means to be a professional and to take on a different role that they oftentimes have not really understood,” says Chapel Hill’s Wegner.
Stanford Law School dean Larry Kramer agrees. “We are dissolving that box for the second- and third-years,” he says. He is doing that by giving law students access to the entire university. “We are recognizing that there are a huge number of things that they can do, but we are using the whole university to do it.”
For example, for law students interested in intellectual property, Kramer thinks they can be better lawyers if they also take engineering and science classes. Law students might learn better negotiation skills at the business school or learn more nuances about the implications of cross-border transactions by studying in the economics department, he says.
In all, students attending Stanford Law School will find their elective opportunities nearly doubling in their upper-class years. Kramer has now literally and figuratively connected the law school to the greater university instead of leaving it as an isolated island of learning.
Kramer is confident that these changes will benefit both law students and law firms. “Every other profession allows you to think about what you want to do after school while you are in school. Law schools don’t. Usually you could go to a firm and have three or four years to think about it, but that has changed. Law firms can’t bear the cost of it. So it makes sense to do it in law school.”
Kramer also feels that these changes are right because the skills are transferable to a wide variety of professional opportunities even beyond the practice of law.
Similar changes have been made at the University of Pennsylvania Law School. Dean Michael Fitts has been emphasizing not only interdisciplinary education but interdisciplinary faculties as well. He says nearly half the law school’s faculty have appointments elsewhere in the university, and there are many non-law-school faculty at the law school too.
After their first year at Penn Law, students can take a quarter of their classes outside the law school in approved courses—including business classes at the Wharton School, communications classes at the Annenberg School and bioethics at the medical school.
“The value of this is just the quality of the classes,” says Fitts. “To have a health law class in the law school with medical students or a bioethics class with philosophy students improves the discussion.”
Penn Law’s clinical programs will soon undergo similar modifications. Students enrolled in the child advocacy clinic will work side by side with students from the university’s medical and social work schools, and the same kinds of opportunities will be forged with the law school’s entrepreneurship clinic and its intellectual property clinic.
None of these changes surprise Northwestern University School of Law dean David Van Zandt, who was an early pioneer of the interdisciplinary model of legal education. Nearly a decade ago, he began focusing on cross-disciplinary educational opportunities with Northwestern’s Kellogg School of Management. And he has long argued that being a successful lawyer in today’s profession is as much about good management and business skills as it is about technical legal skills.
“This is where law schools are doing a better job because they are looking at their external audience, looking at where their students are going, the kind of jobs they are taking and figuring out how to serve them better,” he says.
Van Zandt now wonders whether the interdisciplinary model needs to be taken a step further. He says Northwestern has formed a working group that is studying whether certain classes from outside the law school—like accounting or finance—should become mandatory.
Fitts says there are perils in mandating interdisciplinary education in law schools because there is little consensus on what law students need to study beyond the building-block courses. Instead, he sees schools, including his, offering more certificate programs in which students can choose to follow a prescribed set of courses for more concentrated training in certain fields.
In addition to finding a growing number of certificate programs, future law students can expect more combined degree offerings. While the J.D./MBA is now commonplace, law schools are starting to offer joint law degrees in other fields, including engineering, ethics and medicine.
A DIFFERENT TYPE OF TEACHER
It’s not just the courses that are changing; it’s also the faculty. This means a J.D. is no longer the only path to the podium.
Most law school professors share a common resumé: a stellar law school career, a judicial clerkship and a year or two of practice experience. But some schools are deviating from that model and bringing in more Ph.D.s to teach, says Carl Monk, executive director of the Association of American Law Schools in Washington, D.C.
“Hiring a faculty member with a Ph.D. in another discipline allows students to see other issues, like anthropologic, statistical and geographic, that are very important to the optimal resolution of the legal case,” Monk says.
At Detroit’s Mercy School of Law, Gordon has set his focus on recruiting retirement-age partners from local law firms to join his faculty instead of spending their golden years on the links. He believes a combination of academics and experienced practitioners will create the optimum balance for students.
“There has been this false choice suggested that either you learn theory or practice,” he says. “What we are trying to say is that you don’t have to make that choice. You can learn both excellent theory and practice, and one way to do it is to have wonderful people from all along that spectrum.”
Additionally, Mercy now has a mandatory law firm program for its third-year students. The focus in that program is on simulated transactions in a variety of practice areas.
Gordon says the simulations have been created by the former practitioners using real documents (client names and other confidential information are redacted). He says this approach teaches his students actual skills and provides opportunities for discussions about ethical quandaries.
But it also teaches something more about what it is like to work as a lawyer. “In law school, students get the impression that the more time you spend on a matter is good.”
Dennis of Drexel University has high hopes for his law school’s soon-to-be-unveiled cooperative law program. “It’s like an externship program—but on steroids,” he jokes.
In addition to the usual stable of judicial externships and opportunities with nonprofits, Drexel’s program will offer its upper-class students opportunities with Philadelphia law firms and businesses.
The program allows students to devote two entire quarters to their externship.
Dennis believes Drexel’s co-op program for its law students will make them more marketable because they will have had on-the-job training. “New grads are asked to be very productive earlier. That has really driven law schools to be responsive to those concerns.”
But he says these changes will also require some adjustments on the part of the faculty. “We have students who are having intense practice experiences, and we better be very self-conscious about how we talk to them or we will have bored students on our hands.”
If they even sign on to the program, that is. The deans at some of the institutions leading these changes say that, for all their efforts to promote new ways of thinking in legal education, the bulk of their students prefer to stay the course.
That’s what Joe Ross, a 2007 Stanford law graduate now with the Internet media group at Lehman Brothers in Menlo Park, Calif., has observed. While he decided to branch out and take courses at Stanford’s business school, many of his classmates never ventured outside the law school. He thinks the hesitation may be due, in part, to insufficient encouragement by the school.
“It’s one thing to say you have all of these classes to choose from,” Ross says. “It’s another thing to help them with classes that enhance their career.”
Perhaps, just like anything else in the law, even the students are slow to accept change.
Jill Schachner Chanen, a lawyer, is a legal affairs writer for the ABA Journal.