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Monday, March 01, 2010

What Class Should be Added to More Law Schools' Curricula? My Suggestion: A Class in Plea Bargaining. What's Yours?

I would like to thank Dan Markel for inviting me back to guest blog on PrawfsBlawg for the month of March. I last guest blogged here in April 2009 and posted entries about ungraded midtermsthe law school case method"open everything" examsbackwards, forwards, and sideways exam gradingexam word limitsbiased examsexam reading periodsblind gradinguncurved classesflex credit classesexam conferences, and oral exams. David Byrne said the following about the Talking Heads choosing the title for their second album:

"When we were making this album I remembered this stupid discussion we had about titles for the last album," Tina smirked. "At that time I said, 'What are we gonna call an album that's just about buildings and food?' And Chris said, 'You call it more songs about buildings and food.'"

The band ended up calling the album More Songs About Buildings and Food. You can think of my posts this month as More Posts About Teaching and Grading. 

My first post is about classes which law schools should think about adding to their curricula. When I thought about this topic, the first class that popped into my mind was a class in plea bargaining. Many law students enter the field of criminal law, and "[p]lea bargaining now dominates the day-to-day operation of the American criminal justice system; about ninety-five percent of convictions are obtained by way of a guilty plea." Michael O'Hear, Plea Bargaining and Procedural Justice, 42 Ga. L. Rev. 407, 409 (2008). Moreover, I would argue that plea bargaining in this country is in a constant state of flux, especially in the wake of the Supreme Court's opinion in United States v. Mezzanatto, 513 U.S. 196 (1995).

And yet, I would also argue that most law students don't learn much about plea bargaining at most law schools. Sure, Criminal Procedure II/Criminal Procedure Adjudication classes cover plea bargaining. That said, the topic is usually only covered in one or two class sessions, and far fewer students take this class than Criminal Procedure I/Criminal Procedure: Police Investigation. 
 
So, what would a Plea Bargaining class look like? Well, after thinking about this topic, I did an internet search and found that Josh Bowers at the University of Virginia School of Law teaches a Plea Bargaining class, and he graciously provided me with a copy of his syllabus for his semester-length version of the class (Download Plea Bargaining Semester-Length Syllabus) and his syllabus for his January Term (J-Term) version of the class (Download Plea Bargaining J-Term Syllabus). 
 
So, what do readers think? Do you teach a class that you think that more law schools should offer and/or are you otherwise aware of such a class? Or is there a class that your school doesn't offer but that you think that it should offer?
 
Update: Commenters suggested that a course in depositions could be useful. After some research, I found that Albert Moore teaches such a class at UCLA. I contacted Professor Moore, and he graciously provided me with a copy of the outline for the course and other materials related to the course which you can download here (Download Depositions course outline, Download Depositions course self-critique, Download Depositions course video exercise, Download Depositions course why teach, and Download Depositions course witness instructions) Readers interested in teaching such a course might also be interested in David A. Binder, Albert J. Moore,  and Paul Bergman, A Depositions Course:  Tackling the Challenge of Teaching for Professional Skills Transfer, 13 Clinical L. Rev. 871 (2007). 
 
-Colin Miller

Posted by Evidence ProfBlogger on March 1, 2010 at 02:23 PM in Teaching Law | Permalink

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Comments

I'd like to see a course in Basic Investigative Techniques, preferably taught as a follow-on to the basic evidence class. This might include some issues that would be covered in a depositions class, but should also include (order is random):
* how and when to ask questions to which you don't know the answer
* dealing with the uncooperative witness or other information source
* what actually constitutes a "regular system of records"
* how to use second- and third-hand accounts when no first-hand account is available
* lawful/appropriate and unlawful/inappropriate use of public and quasipublic data systems, such as (but not only) credit reports
* how to construct a proper Toulminian warrant without access to first-hand sources... so that you can get that access
* conversely, how to protect confidential information from discovery, and develop some judgment on when it's better to just produce it under seal
* questioning techniques and imperatives for client-screening interviews
et cetera, et cetera, et cetera.

Obviously, this would need to be a non-exam-oriented course...

Posted by: C.E. Petit | Mar 2, 2010 4:41:25 PM

I am also teaching a course on plea bargaining (at American, for the first time this semester -- thanks to Josh Bowers for sharing his excellent syllabus). One of my reasons for developing this seminar was a sense, as Colin put it, that "most law students don't learn much about plea bargaining at most law schools." My experience in the course this semester has confirmed this. The students cover some topics in Crim Pro courses that relate to plea bargaining, but they often do not connect those topics with the reality that is our plea-driven system, of consider how some of the issues could/should be viewed in light of that reality. In addition to many of the topics that Josh covers, I also have a segment on negotiation - both theory and practice (in the form of a taped simulation and critique). I mention this because I would add negotiation to the list of courses that law schools should consider adding, something could be done in many forms. Of course many schools have some type of negotiation course, but these are often small classes with quite limited enrollment. Negotiation is also taught in many clinics. But not every student - or perhaps even most students -have enough exposure to this critical area that lawyers engage in on a regular basis. It is certainly deserving of more attention in our curricula. It's a great area to explore law and psych connections as well, through the work of people like Rebecca Hollander-Blumoff and others writing in this area.

Posted by: Jenny Roberts | Mar 2, 2010 2:04:59 PM

It depends on the goal. If the goal is to be generally useful to students, then I would say add a course on argument theory that goes from top to bottom: theories of justice down all the way down to human psychology and the structuring of specific points.

If the goal is to expand the scope of law school and give students access to new practice areas, then I would say to add a course on veterans law. There are a million claims filed each year but only a few hundred practitioners. A few schools have veterans law clinics, but I'm not sure if any are teaching classes on the unique structure, theory, and history of VA's non-adversarial system.

Posted by: anon | Mar 2, 2010 1:59:52 PM

Another issue is the balance of international and comparative law. Many law schools focus on public international law offerings that have little use outside diplomacy. Yet, a large share of business lawyers, particularly those with big law practices, routinely encouter comparative law questions: "What do I need to do to set up a business in Lebanon? How should I structure my company's Mexican office? What tax considerations apply to a German business?"

While many law schools offer an introductory international business or comparative law survey, this is an area where regional groups of elective classes for 2Ls, 3Ls and LLMs could be a real asset. An institution might offer, for example, a three course series of electives on Latin American comparative law.

Private international law could be incorporated across the curriculum, rather than taught as a separate course, as one can almost never use private international law without also getting deeply immersed in comparative law issues.

Since private international law, international tax and comparative law issues, together are such a specialty and are a barrier to entry for domestic firms, outside funding of these specialities could provide good jobs for graduates and also be a legitimate grant subject for federal trade agencies, state trade agencies, international trade entities, and private groups interested in advance global trade. For example, almost every state has an office concerned with export propotion and grant funding of a local public law school for curriculum development and staffing in this area could dovetail well with this agency's purpose.

Posted by: ohwilleke | Mar 2, 2010 1:58:56 PM

Justin, I don't know whether you saw it, but there was a good thread about whether law schools should offer courses on state constitutional law on Volokh Conspiracy:

https://volokh.com/2009/04/08/should-law-schools-offer-courses-on-state-constitutional-law/

Posted by: Colin Miller | Mar 1, 2010 10:21:14 PM

ohwilleke, it looks like Cornell offers a business practices class that could serve as a good model:

LAW 6141 Law and Ethics of Business Practice Fall. 2 credits. S-U only.
S. J. Schwab. Students enrolling may not use Law 6141 to fulfill the ethics requirement.
Each week a distinguished guest lecturer from the business world will present a business-law problem. Speakers include the founders of businesses, the managing partners of large law firms, and the managers of hedge funds and private equity firms. The problems will cover a wide variety of topics, such as how to comply with the Sarbanes-Oxley audit requirements and how a hedge fund should react to improperly discovered confidential information. Students will be required to write two 5-page lead papers on particular problems, and four 2-3 page response papers on themes covered in the class. No final examination.

Posted by: Colin Miller | Mar 1, 2010 10:17:04 PM

"I think practice-oriented international & comparative courses are needed. Examples include International & Comparative Employment Law and International Commercial Arbitration."

Mike, it looks like Loyola offers a class in the former that could serve as a good model:

288 - International and Comparative Employment Law (2). This seminar will begin with a brief baseline description of some of the most significant features of United States labor and employment law. Comparative materials will then cover the basic employment laws of Canada and Mexico. We will then look at the regional regime established in the NAFTA labor side accords. Next we will move to Europe to study the employment laws of the United Kingdom, Germany and France, followed by the regional employment laws generated by the European Union. Following that, we will look at the employment laws of Japan, China and India. The final focus of the seminar will be on International labor law, particularly the International Labor Organization. (Zimmer)

Posted by: Colin Miller | Mar 1, 2010 10:12:12 PM

you can never have too many tax courses.

Posted by: andy | Mar 1, 2010 9:36:22 PM

State constitutionalism is under-studied and important in equal measure.

Posted by: Justin | Mar 1, 2010 9:28:06 PM

One of the things I plan to blog about this month during my guest stint here is the new course I have been teaching this semester, Quantitative Methods. Here's the class website and here is a FAQ I wrote last semester for interested students.

I took the class at UCLA Law ten years ago, and I know that it is still taught there today.

Illinois Profs. Lawless, Robbenholt, and Ulen just released a new Aspen book entitled Empirical Methods in Law, and a group of notables at Harvard released Analytical Methods for Lawyers six years ago.

Given all of the empiricists in the legal academy today, I bet we'll see statistics classes springing up around the country.

Posted by: Paul Ohm | Mar 1, 2010 9:25:55 PM

Colin, the Law Practice Management class sounds really interesting. I imagine that certain profs might emphasize aspects of the class around their strengths, which is understandable.

Ohwilleke, I completely agree on "business practices". I went straight from law school to corporate in-house practice and was inundated with a demand for drafting many deal documents - some simple enough and some very complex. Of course, most of my lack of prep was my own doing - that particular position was not one that I envisioned for myself and I didnt take readily available course work that would have helped - still, a hands on course on deal document drafting would be really helpful.

Posted by: Jeff Yates | Mar 1, 2010 9:21:44 PM

I like the "Depositions" class, provided, however, that it is a clinically oriented class about how to question witnesses, and not primarily a law of depositions class.

I am also a strong proponent of offering a class on "Business Practices" which would focus on teaching students the customary terms and provisions in a wide range of contractual arrangements. For example, what are the typical terms of a venture capital financing arrangement, or a bond issue, or a commercial lease, or an executive employment agreement, a set of compensation agreements for a movie, or a sale of assets agreement in a medium sized business.

This is information that is amenable to being taught in an academic setting, is eminently useful to anyone doing deals or trying to understand them in litigation, is rarely taught, and is hard to learn without a mentor in every day legal practice.

Far more lawyers get paid to negotiate business deals than are paid to take pleas, and the boundaries of plea negotiation tend to be more transparent. You can sit at the back of a courtroom for a week and learn what the going deals are if you must, and informed by a statute book you are likely to have some real understanding of what is going on. You can't sit at the back of a private deal room to learn those terms and form books aren't an adequate resource standing alone.

Posted by: ohwilleke | Mar 1, 2010 8:43:59 PM

What should be added to law school curriculum are classes in economics or mathematics, two subjects that law students and SCOTUS are woefully unprepared in.

Posted by: malthus | Mar 1, 2010 7:23:55 PM

I think practice-oriented international & comparative courses are needed. Examples include International & Comparative Employment Law and International Commercial Arbitration.

Posted by: Mike Zimmer | Mar 1, 2010 6:56:44 PM

I'm not sure whether any law schools offer a class in statistics

Penn occasionally offers a class on statistics for lawyers, but not on a regular schedule, I believe. Here you can take a certain number (3 or 4- I'm not sure) of classes in the rest of the university, and some classes can be pass/fail, so I assume the options can be mixed. This would allow for taking states in one of the other divisions where its offered. (I assume there are several.)

Posted by: Matt | Mar 1, 2010 6:24:19 PM

Jeff, we recently added a class along those lines at John Marshall:

Law Practice Management (2) Law 264

The areas of study include the public's perception of the legal profession, legal profession trends, small law office survival, products and services, office accounting, case planning, fee contracts, fee arrangements, common ethical complaints and methods to avoid them, civility in the profession, marketing and promotion of legal services, firm performance evaluation, financial analysis of the firm, strategic planning, modern law office technology, use of law clerks and paralegals, pro bono obligations, and human resource management.

Posted by: Colin Miller | Mar 1, 2010 5:52:27 PM

In lieu of a statistics class, perhaps allowing students to take a statistics class provided by the University at large as a pass/fail option would be a better approach?

I am wary of "statistics for lawyers" since it seems what lawyers really need is statistics, period. Of course, the question is what statistics courses best compliment law?

The interesting thing about Law Office Management, in my exposure, is that it tends to be the "easy A" class at many schools. This doesn't mean something of value cannot be gleaned from the class, but it does mean it is difficult to get that something of value.

Also interesting is the prevalence of a LOPM (Law Office Practice Management) classes at non top-tier schools, but the lack of them at top-tier schools. Or, at the least, in the South East region this seems to be a theme.

This might be because these classes tend to be taught by adjuncts.

A bigger question is how should a LOPM class be designed?

Posted by: John | Mar 1, 2010 4:35:13 PM

At Berkeley, we have a class on quantitative methods that covers statistics in quite a bit of depth. (https://www.law.berkeley.edu/php-programs/courses/coursePage.php?cID=7203&termCode=B&termYear=2010)

Posted by: Eric Biber | Mar 1, 2010 4:31:58 PM

While some schools already have a class in this area, I would suggest something along the lines of "law office/law firm management". I think that if you are outside of the top 20 law schools and look at your alumni 10-15 years out you will see that quite a large proportion of them (or at least those who still work as lawyers) work in firms smaller than 15 attorneys (and a good number in solo practice). Hence, management skills are likely to be very important to them down the road. Some of the possibilities mentioned above are already handled in other courses (e.g. depositions in Pretrial Litigation, and plea bargaining in Interviewing, Counseling, and Negotiation, although I had plea bargaining in Crim Proc II) - but I agree that they probably warrant their own class. Of course, as a social scientists I especially appreciate Matthew's suggestion of a statistics class.

Posted by: Jeff Yates | Mar 1, 2010 4:24:48 PM

Matthew, for a class in Regulatory Process, maybe schools should look at George Mason's Regulatory Clinic. Here is the syllabus for it:

https://www.law.gmu.edu/assets/files/academics/schedule/2010/spring/BRITO,DOOLING_LegalClinicRegulatory-Syllabus.pdf

I'm not sure whether any law schools offer a class in statistics because my searches on the subject keep coming up with the class statistics for entering students.

Posted by: Colin Miller | Mar 1, 2010 4:15:47 PM

I would like to see two classes: one, a class on regulatory process. Administrative Law is a little too head-in-the-clouds at most schools, and doesn't focus on the details of how you go about interacting with regulatory agencies (this is probably in part because every agency has a slightly different process). Second, I would like to see a class on statistics (or at least, some discussion of the proper use of statistics in certain classes). For example, mass tort/class action/products liability/complex litigation frequently involves showing the likelihood of a particular event occurring as evidence that the standard of care was or was not followed. This is a crucial piece of evidence, and it requires at least a working knowledge of basic statistics and probability. My experience has been that most lawyers are woefully incapable of understanding what a p-value is, or the meaning of a two-tailed or one-tailed test, nor why you would use one as opposed to the other (hint: in litigation, your theory is almost always going to call for a one-tailed test).

Posted by: Matthew Reid Krell | Mar 1, 2010 4:06:33 PM

Congrats to Washburn and UCLA then! I took classes that tangentially played on deposition work, but nothing solid.

The reality is that I have seen too many depositions win and lose cases. Sure, you can argue that depositions should not warrant a whole class, but I'd argue that they're so important to so many areas of litigation that they merit a whole class.

The reality is that a school would need to hire an adjunct for this, though. It is too much practice-oriented for a non-practicing faculty member to keep up with.

I do like the idea about the plea bargaining, though.

Before law school, I helped a friend open his own firm. I watched my friend learn the ins-and-outs of plea bargaining the hard way.

Luckily, my friend had tremendous mentors. Now, if I have questions, I go to him. (Which luckily does not happen often since I work in environmental, local government, and civil litigation fields.)

Posted by: John | Mar 1, 2010 3:23:27 PM

John, I just did a search and found that at least Washburn (https://washburnlaw.edu/curriculum/courses-t-z.php) and UCLA (https://www.law.ucla.edu/home/index.asp?page=2321) offer Depositions classes, and I think that you are correct that most schools don't offer such a class, which would be very useful. I will e-mail some of the professors who offer these classes and supplement this post with their syllabi if they offer them.

Posted by: Colin Miller | Mar 1, 2010 2:40:24 PM

A class on how to properly run, manage, and use depositions. Depositions are often run badly. Lawyers often do not know when or how to object. Questions that should be asked are left on the table, leaving evidentiary holes in the record that will be presented at summary judgment. Using depositions in court documents also is not well understood.

Depositions are wild, crazy evidentiary beasts. Why these important tools in the litigation process are not examined more in-depth is beyond me. At my school, and at every other school I know of, I've never heard of a class on these.

Posted by: John | Mar 1, 2010 2:32:48 PM

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