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Saturday, August 27, 2005

What course is most "under-taught" in law school?

Orin Kerr over at Volokh in this post reports on his instinct "that computer crime is going to develop into an upper-level elective offered at most or all law schools within a decade or so."  My immediate reactions was, c'mon, most or all law schools need to have a course (or two) on sentencing before they need a course on computer crime.  (All these insights are surely influenced by biased perspectives: Orin is working on a computer crime casebook; I have an Aspen casebook entitled Sentencing Law and Policy, and have recently finished a new supplement covering Blakely and Booker and other fascinating topics.)

My second reaction to Orin's post was to ponder more broadly the topic of "under-taught" courses in law school, and to want to seek the wisdom of PrawfsBlawg readers on this topic.   So, the question is:

What legal topic do you think should develop into an upper-level elective offered at most or all law schools in the coming years?

In the area of criminal law, I strongly believe sentencing is the course that should become a modern law school staple (and I'd put a course on habeas and other post-conviction issues second).   Especially if this question gets answered with a focus on what is central to modern day practice, today's world in which 95% of all convictions flow from guilty pleas means that effective prosecutors and defense attorneys must be knowledgeable about a range of sentencing issues.

But, outside the field of criminal law, I have very little insight on the topic of "under-taught" courses in law school.   I bet there are all sorts of business law topics which merit, but do not currently receive, serious law school coverage.  Other fields I am sure have their missed topics, too.  I hope the diverse readers of PrawfsBlawg might help expand my horizons by suggesting answers in the comments.

Posted by Douglas A. Berman on August 27, 2005 at 09:29 AM in Life of Law Schools | Permalink

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My totally biased answer is Information Privacy Law. There is a ton of law in the area, which is rapidly expanding. The questions are extremely important both for national security as well as business and commerce. There are countless new jobs as chief privacy officers (every health institution and financial institution must have one -- and most major corporations have one). And the issues are really exciting. Everybody should want to teach the course. Each and every student who has taken the course has loved it! (Well, I'm taking liberties with that last statement, but I sure hope that soon the course is offered more widely). My bias -- I have a casebook in the field -- so take what I write with a grain of salt. I posted more about why folks should teach Information Privacy Law here.

Posted by: Daniel Solove | Aug 27, 2005 10:12:22 AM

Most undertaught class? Actually, the answer is that there is an entire half of private practice that needs more attention: transactional work. Law school prepares people to become litigators; actually, it prepares people to become appelate litigators. It has little to offer for the budding transactional lawyer. A few classes touch on matters that are of some importance to transactional work -- tax, corporations, contracts, etc. But no classes actually focus on the heart of transactional practice. Columbia has perhaps the prototypical class that would be useful: "The Art of the Deal," a seminar that exclusively studies real world deals, with weekly lectures by executives, transactional lawyers, bankers, and the other real world participants that explain how and why they structured their deals. More classes like this are needed; perhaps even some sort of "moot deal" exercise would be useful as well.

(I worked for a transactional law firm as a paralegal last year before going to law school. I actually thought it was really boring and would much rather go into litigation, but I do think that law schools way underemphasis transactional work. It doesn't bother me a whole lot, because I have no desire to do that work, but on an intellectual level it just amazes me that this whole half of legal practice is completely under-served by the legal academia.)

Posted by: Jeff V. | Aug 27, 2005 11:03:11 AM

The question raises more significant ones regarding (a) curricular matters generally and (b) the best curriculum for a specific law school. Schools differ, for example, in the way they structure their required, lower-division courses, with each decision -- should property, torts, and/or contracts be one-semester or two-semester classes? -- at once limiting the availability of upper division electives, and leading to the incorporation of elements of those electives within a first year course.

Also, some more regional law schools that are outside of the top-20 but with aspirations to do more than merely bar preparation may decide to emphasize certain subjects in their upper division offerings. At U. Florida, for example, in a state where land development is one of the leading industries, we offer a significant number of land use related classes, and a basic Land Use/ Planning class every semester, while other schools may not offer Land Use at all, or only by adjuncts, or only once every couple of years when a tenured faculty member expresses interest. So, the question might be answered differently in particular contexts, based on the school's lower-division curriculum, location, and aspirations.

But leaving all that dull stuff aside, I'll join the Fantasy Faculty fray. I'll put in a pitch for a class on open government laws (federal and state, records and meetings), taught as a combination advanced media law and administrative law class. Taught from the requester/ media's perspective it offers a set of skills and knowledge important for private clients who are likely to interact with government agencies -- which covers a quite broad waterfront, far beyond the media. Taught from the agency perspective, it serves as a really great introduction to the nitty gritty and big picture issues that government agencies face. And finally, considered from the side of legislation-drafting and the judiciary, it's a fantastic introduction to separation of powers issues and unintended legislative consequences (specifically, how a poor striking of the open government balance in one direction or the other could have enormous political and social consequences). And finally, as with its more famous kissin' cousin, information privacy, open government/ transparency/ government secrecy has a certain torn-from-the-headlines sexiness these days.

(Obligatory disclosure: I have no casebook on the subject, nor plans to write one, but I have taught a seminar on the subject twice.)

Posted by: Mark Fenster | Aug 27, 2005 11:20:10 AM

This thread practically cries out for the inverse question--what topic/courses are OVERtaught at law schools? Eric.

Posted by: Eric Goldman | Aug 27, 2005 11:26:32 AM

Isn't everyone in agreement that constitutional law is way overtaught and over-researched at law schools? To the extent that it is taught and researched, it seems that most people recognize that this teaching is valuable mostly (maybe 80%) as a sort of civic education and of only secondary value in actually educating practitioners.

Posted by: Jeff V. | Aug 27, 2005 11:34:51 AM

I don't know enough about all subjects taught and not taught in law schools, and I would be a bit hesitant to make recommendations outside of my own fields.

But I'll say that in the world of labor, employment, and law-of-the-workplace stuff, public sector labor and employment law is definitely under-taught. About 40% of all union members are in the public sector and about 40% of eligible public employees are covered by union contracts. The practice of labor law is thus increasingly in the public sector. Still, few folks teach it. I suspect that's in part because state laws vary widely, there's no good general hornbook, and an updated casebook just came out last year.

Posted by: Joseph Slater | Aug 27, 2005 12:09:19 PM

Doug writes:

"My immediate reactions was, c'mon, most or all law schools need to have a course (or two) on sentencing before they need a course on computer crime."

I don't necessarily disagree. Right now, sentencing law is very hot; it is undergoing an uncertain revolution at all levels of the federal judiciary, and that of course draws a lot of attention. It's an interesting topic, and a useful one for law students to study.

Computer crime is more of a long-term commitment. I think it's moderately important now; most large U.S. Attorney's Offices have a computer crime unit, for example, and the FBI has a cyber division. And of course the Patriot Act is always in the headlines. But the key to the importance of computer crime law is less its practical importance now than its theoretical value and interest now and its practical importance over the next few decades and beyond. Anyway, I'll be blogging more about this over at Balkinization next week.

Posted by: Orin Kerr | Aug 27, 2005 12:25:57 PM

Enforcement proceedings - mentioned in civ pro, bankruptcy and
secured transactions but rarely taught coherently ...

Posted by: Positroll | Aug 27, 2005 1:21:26 PM

During the 1950s and 1960s remedies/restitution was a staple of the upper-year curriculum and a focal point of academic debate. Only a handful of schools currently offer such a course and few within the United States participate in a debate that continues to be active in England and civil law jurisdictions around the world. Remedies/restitution cuts across multiple subjects and has broad implications for law.

Posted by: MidwestLawProf | Aug 27, 2005 1:43:00 PM

Since no one has said it yet, I will. I think many students get out of law school with really poor writing skills. Supposedly, they learn to write in first year legal writing courses, but I assure you they either never really get it or they lose any skill they had somewhere along the way. Additionally, first year skills courses focus on argumentative or persuasive writing but not drafting.

All the suggestions here have some merit, but each is most useful if the student plans to go into a particular area of law (criminal practice, employment, transactional work--although I second Jeff V's suggestion that transactional classes are way undertaught). A good lawyer, no matter what her field, has to be able to communicate effectively, whether in a brief or motion, drafting or negotiating a contract, drafting proposed legislation, or whatever.

Posted by: dgm | Aug 27, 2005 3:29:42 PM

A woefully undertaught course is Insurance Law. Insurance issues impact every area of the law, from basic real estate transactions to complicated corporate mergers. The existence of liability insurance forms the backdrop of most litigation, and disputes between policyholders and insurers are endless. Lawyers themselves would find it hard to function without the protective blanket of malpratice insurance. Yet few law students even realize this body of law (which is full of complicated rules, often varying dramatically from state to state) even exists. I'm one of those "overtaught" constitutional law people, but the absence of even a basic course in insurance law at most law schools strikes me as a travesty.

Posted by: Carlton Larson | Aug 27, 2005 3:33:11 PM

Ok folks, what law schools actually need is more seminars on _state_ constitutional law. Judges and clerks from state trial and appellate courts can tell you that all kinds of claims and doctrines arise out of the various clauses of the several state constitutions. Most law students graduate never having read a case interpreting state constitutional law. I realize this is changing, and has been ever since the "New Judicial Federalism" movement began 30 years ago, but law schools are still quite inadequate in this regard.

The one exception is that some regional schools, especially state university regional schools, teach their own state's constitutions and relevant case law.

[Disclaimer: Yes, I have "written" on the subject and will be publishing a piece on state constitutional law soon.]

Posted by: Anthony Sanders | Aug 27, 2005 6:02:13 PM

The Americans With Disabilities Act of 1990, Rehabilitation Act of 1973, and International Law. Most undertaught is Title II of the Americans With Disabilities Act as applied to State courts, agencies, Bar Examiners, and the Bar, and Title II of the ADA as applied to law offices and law firms. Most lawyers and judges I have encountered do not know this law, do not want to know it, do not recpect that disabled people should have the same rights as everyone else, and try to issue Orders to rule out physical and neurological conditions of disabilities as if they don't exist, when they do and they are medical conditions that do not go away just because an Order is issued declarating it to be so. Really, the failure to teach this law is the source of so much unnecessary and truly harmful discrimination against disabled people in the legal profession, and just teaching this course could change so much and bring much fairness and intergrity that does not presently exist to the Bar and Bench. Every law school understands that disabled people should receive necessary reasonable accommodations; why is this message so lost on practicing attorneys and our Courts?

Posted by: Mary Katherine Day-Petrano | Aug 27, 2005 6:56:20 PM

Here is another biased response-- a separate course on Limited Liability Companies. LLCs are quickly becoming the form of choice for new small businesses in almost all states, but currently they are treated as an appendage to other non-corporate business forms in already-overcrowded Business Organizations courses. (Disclaimer: my article making the same point is at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=613022)

Posted by: Howard Friedman | Aug 27, 2005 10:38:56 PM

These comments actually make me fairly proud of the school where I teach--South Carolina--in that we offer many of the courses listed (e.g., remedies, insurance, sentencing) and get good enrollments for them.

Posted by: Andrew Siegel | Aug 27, 2005 11:11:42 PM

I agree with Doug that sentencing is a woefully undertaught course (and I'm not just saying this because I'm writing a piece on Blakely right now!). Another course which tends to be taught but not required is Administrative Law (yes, yes, I can hear the groans now). I think it should be required--it's such an important part of our law, but it's not a sexy subject, and hence many students do not take it. It does them a real disservice.

Posted by: Laura I Appleman | Aug 28, 2005 12:41:56 PM

How about conflicts / choice of laws?

Posted by: Kaimi | Aug 28, 2005 12:48:12 PM

Great question. I agree that SL&P is undertaught. I took a course in Sentecing & Corrections (we studied sentencing policy generally, and the Guidelines and California sentencing specifically). Great course. I think computer crime will be the next white collar crime, but it's not a ripe area right now. (Kerr is smart, though, since when it is ripe, he'll be da man.)

I think white collar crime is undertaught. Every big firm lawyer needs to understand white collar crime, as the line between civil and criminal liability is increasing blurred. I've seen more than a couple of cases where a white shoe civil lawyer told his client to cooperate with the government in a matter since it was "only civil." Hah - today there is no such thing as a purely civil case when the government is involved. Thus, everyone who advises clients (and esp. anyone who wants to do tax and estate work) must understand white collar crime.

How many tax lawyers can show you the line betweeen "aggressive" tax planning and tax evasion? How many corporate lawyers can show you the difference between giving a pep talk and comitting wire fraud? (Remember, Martha Stewart was charged for denying her guilt over the wires. And Ken Lay is being prosecutor for wire fraud for giving his employees a pep talk.)

Many law schools rarely teach courses in securities law. So that's an undertaught area.

Con law is way overtaught. I took six con law-related classes in law school (since 50% of my time is spent consulting on 1983 cases, this was actually very practical, but for the most part, con law is junior league philosophy.)

Posted by: Mike | Aug 28, 2005 2:26:55 PM

I'm going to make my proposal even bolder: I think that law schools should come up with an alternate degree path for transactional lawyers.

Most law school classes teach subjects from the litigation side -- even those that deal with subjects that are related to transactional work (contracts, corporations, etc.). While transactional lawyers need to understand lititgation, because half of the point of contracts is to avoid litigation, they need other skills that aren't taught in law schools: an understanding of their clients' business, the ability to assess risk and know how to spread it, negotiating skills and strategy, etc.

Most of these extra skills are better learned in business school. So I propose a new hybrid JD/business program where students get roughly two years of the traditional legal training and one year of business classes (negotiating, risk, basics of business, etc.).

(I couldn't figure out from a quick perusal of the ABA rules whether a 2-year law, 1-year business format would be acceptable ... if it's not, though, I do think there is a case to be made that current legal training for transaactional lawyers is inadequete and that the rules should be relaxed accordingly to allow for this modification).

This format would have a few key advantages over the traditional joint/MBA program: 1) it would take 3 years instead of 4, 2) it would accomodate students who don't have enough work experience to be admitted into a good MBA program, and 3) it would eliminate some of the unnecessary training in litigation-based legal training. 4) A transactional lawyer could opt-in to the program midway through their second year of law school or later (whereas you usually have to apply for the MBA side in the fall of your first year of law school or earlier).

Should a top school adopt this program successfully, it would distinguish itself significantly from its peer schools. Put simply, there is an ignored market opportunity out there. Should a top-ten (or so) school implement this program, they would instantly become the best place to go for budding transactional lawyers. Every other law school is focusing on improving their LSAT/GPA numbers and gaming the US News system; here is a way to actually improve the quality of education for large groups of students and establish a pathbreaking dominance of a huge part of legal education!

Posted by: Jeff V. | Aug 28, 2005 3:35:54 PM

Jeff: UVA has a program similar to what you're describing. We have separate sections for four or five of the major business law courses that require some sort of accounting and finance knowledge as a prerequisite. Those courses tend to be more useful for transactional lawyers. It's far more moderate than what you're suggesting, but it's a step in the right direction. I think UVA also tends to offer more transactional electives than most other schools.

Posted by: Xavier | Aug 28, 2005 4:05:10 PM

Carlton's absolutely right about insurance law. The legal regulation of risk-shifting might be a great seminar or class topic.

I also vote for health law. Health care spending now makes up about 15% of the economy, and I think that level is likely to increase even more as technology advances. The government's ever-more-byzantine efforts to evade a single-payer system (while still appearing to care about universal accessibility) will generate tons of work for lawyers.

On the other hand, the following article suggests that the ascendant political faction in DC now wants to replace defined benefit health insurance with a defined contribution style of payment:

http://www.newyorker.com/fact/content/articles/050829fa_fact

Posted by: Frank | Aug 28, 2005 4:20:40 PM

All excellent choices on the undertaught courses: M&A, Transactional, Sentencing / Remedies, Health Law, Insurance, are all under taught. One I didn't see up there, however was admin law &/or corporate regulation (incl. antitrust).

Posted by: karl | Aug 28, 2005 10:37:11 PM

I would vote for something on the law of privacy (I am thinking here of the database-selling sense of the word, not the Roe sense).

Evidence is an overrated course.

Posted by: alkali | Aug 29, 2005 8:32:22 AM

Eric G. asked exactly the question I was going to ask. ;) Also, and this is also a question rather than a statement - in her response essay in A Matter of Interpretation, Mary Ann Glendon laments the state of legislative drafting in America, and notes that there is little or no teaching of it at law schools. To the knowledge of Prawfs readers, is this subject taught at all, at any level, in seminar or elsewhere? Or is it just assumed to be covered under legal writing generally?

Posted by: Simon | Aug 29, 2005 11:30:59 AM

Simon,

There were two different courses in statutory interpretation when I was at Columbia. Both of them discussed legislative drafting in some detail (rules of interpretation, and all the famous examples like "no dogs in the park," and "using a firearm").

Posted by: Kaimi | Aug 29, 2005 1:23:11 PM

Legal History.
And if the US educational system gets any worse, "English for Drafting".

Posted by: Nigel Pond | Aug 29, 2005 5:03:59 PM

Jeff V. --

Northwestern has a 3-year JD/MBA program (including classes over the summer). It is focused, as far as I know, on transactional and corporate work. I don't know how many spots it has, though....

Posted by: BuddingProf | Aug 29, 2005 6:07:28 PM

Legal writing programs fail to teach statutory drafting (at least mine did!) This is where the general point about transactional work come in -- legal writing and other skill training courses are way, way too focused on litigation, even to the detriment of litigators. Practice drafting contracts and legislation would redound to the benefit of all lawyers.

Posted by: BuddingProf | Aug 29, 2005 6:12:45 PM

Well, if we're talking about practice relevant stuff, there ought to be a "dealing with clients" course...

Posted by: Paul Gowder | Aug 30, 2005 9:44:58 AM

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