Monday, October 11, 2010
Revamping the 1L Curriculum
How do law schools justify their curricula in a world where tuition keeps rising and employment rates for grads keep falling?
In response to this question, and at the nudging of our curriculum committee, several of my colleagues today began discussing what should be done to revamp the 1L curriculum. It was amazing to hear how much consensus there is about what skills too many students lack after the 1L year. They can't (or don't) read cases closely enough; they can't (or don't) read statutes closely enough; their writing skills are underdeveloped; their analytical skills are weak; they lack initiative and self-reliance.
There was far less consensus on how to solve the problem. Proposals included having a separate class to teach legal reasoning skills, adding skills components to traditional 1L classes, making sure 1L students have a small section experience, beefing up legal research and writing requirements, requiring 1L profs to use essay exams, banning laptops in class, and adding components to 1L classes designed to boost "emotional intelligence" or professionalism.
Inevitably, when it comes time to vote for changes, many of my colleagues will resist some or all of these proposals. Some will refuse to believe that the traditional methods simply aren't working adequately to teach legal reasoning, even while they complain about the supposedly "lazy" students "this generation" has produced. Some will contend that teaching skills (however defined) is somehow beneath us profs (although they won't use these words) and that students can pick up skills on their own. Some who make this argument will genuinely believe, as I once did, that students can teach themselves almost anything once they understand the process of legal reasoning; others will simply be reluctant to revamp a course they've taught for years. Yet others will say it is the job of law firms to mentor young lawyers,thereby showing that they've completely missed the transformation of law firm culture that took place after they left law practice. It is becoming increasingly clear, however, that if law schools aren't proactive in training students to "hit the ground running" when they graduate, the ABA will force our hand.
I don't know what the answers are, but I do know something must be done. What has your school done? Is it working?
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My law school did two things that I believe helped prepare myself and my fellow students for the real practice of law.
The first was a comprehensive legal writing program. (Called LLR -- or Lawyering and Legal Reasoning.) It was a two semesters, 3-hour course each semester, and it had to be taken seriously. It also was a smaller section. Our normal 1L class was divided into 3 sections. Legal writing was divided into 8.
These 8 sections were divided into Plaintiff/Defendant in 4 different cases. Therefore each section had an opposing section. From there each section did a mock interview, drafted letters to the client, prepared a short memo, a long memo, a complaint/answer (depending on party), discovery requests/responses to discovery, a motion for summary judgment, and an appeal of the granting of summary judgment. We also did moot court on our appeal and a mock settlement negotiation.
Too often advocates of changing the curriculum look to add new courses instead of adapting some courses to better suit the needs. By putting these types of skills-based projects into legal writing it provides an opportunity to hone your legal writing skills, be exposed to the nuts and bolts of a case, and to learn elements of law more concretely than you might otherwise.
The second thing my school did was have evidence as a required 1L course. I understand this is not common. The impact, however, should not be underestimated. Evidence is practical on many levels. The most basic is in the courtroom. By requiring evidence, my school required its students to understand the basics of what is allowed in and out during trial.
Less evident is the greater context provided to other courses. Civil Procedure benefits, for example, from understanding how discovery can be used to produce admissible evidence. Torts benefits from understanding how you can arrive at admissible evidence to meet the required elements. Later courses, such as Criminal Procedure, benefit in similar ways.
These two 1L curriculum requirements have gone a long way for myself and my fellow classmates. I know of a number of graduates from my school who have been able to hang out shingles and become solos because of these experiences.
Even so, this does not necessarily address the types of skills sought by in-house counsel or large firms. A solo or small firm will need slightly different skills. For example, a large firm is more likely to need someone with strong transactional skills. Contract drafting an analysis would be a benefit in this circumstance. The more litigation-focused approach of my legal writing curriculum did not address this. (Although my Contracts course and some electives I took did, but this was not a typical experience.)
The benefit of creating a legal writing curriculum that focuses on these types of practical, real-world projects is that a student can potentially better grasp the importance of the black letter law and theory he/she is learning by seeing it put into practice. I do not think these types of projects need to necessarily be injected into the topical courses, I think a substantively strong legal writing course can do the job.
I know some schools sadly neglect their legal writing courses. A number of friends and colleagues who attended other schools talked over legal writing courses that amounted to two large projects: an long, open memo on a topic and an appellate court brief on that topic.
How often do new lawyers get appellate projects out of law school? Not often. How often do they prepare complaints/answers, discovery, motions? More often.
Just my two cents. Good luck on any curriculum changes!
Posted by: John Nelson | Oct 12, 2010 1:25:33 PM
Think about who will teach what. Do you have the culture that will allow a legal writing person to be "attached" to a 1L course? Do you have 1L profs who can teach even small bits of transactional or other drafting exercises effectively?
If only some 1L profs buy in, the solution has to only involve those profs. Small section and/or greater focus on legal method in one or more courses is one possibility. Conventional wisdom is the need for universal "buy-in". Assuring some profs they don't have to change, and that what they do is valuable (more conventional instruction)may be more important and more realistic.
I would add legislation/regulation before I'd add evidence. But many legreg experiments have failed, partly because it doesn't look like the other courses. The same is true of legal method courses, which is why appending legal method to a conventional course (and perhaps adding an additional hour) may make more sense.
I'd add negotiation before I'd add evidence - though possibly neither belongs in the first year. All LAWYERS negotiate whether they are litigators or not. Negotiation and drafting (of all sorts) are probably the two more neglected areas of instruction at many schools.
Good luck. Don't make the perfect the enemy of the good, but spend a lot of time on "design issues" - on exactly how it will work, who will teach what, how those courses will look to students, etc.
Many of us could go on and on - but there's some of my off the cuff ideas.
Posted by: howard katz | Oct 12, 2010 10:56:57 PM
I disagree with adding leg/reg to the 1L curriculum. You have to remember that not all required courses must be 1L courses. A course on legislation and regulation would be better as a post-1L required course.
Negotiation is similar -- it adds nothing to the underlying theory learned in the 1L year, whereas evidence law is tied to the underlying theory of many 1L courses. Further, as you rightly said, all lawyers must necessarily be negotiators.
I do think a comprehensive lawyering and legal writing program, however, could provide introductory negotiation elements (as the one I took did). This is valuable, and it can help a student understand if he needs to pursue negotiation further in his second or third year.
Another reason I believe a strong lawyering and legal writing program is the best solution is that it provides a discrete place for practical skills application. Weaving practical skills into standard 1L courses is not a bad idea, but it will not provide strong reinforcement of those skills. Further, the fact is that teaching theory and teaching skills often require separate approaches.
By placing skills training in a lawyering and legal writing program you can have students learn from a professor who is focused on the best way to present drafting, writing, negotiation, and other skills rather than a professor trying to find ways to tie skills work into their casebook method.
Leveraging a strong lawyering and legal writing program also avoids the conflict of trying to 'teach old dogs new tricks,' so to say. Professors teaching classic 1L theory courses won't be told they have to change their approach or try and juggle two approaches to teaching. The down side is some professors might object to placing a legal writing course so highly (adding hours, adding more permanent faculty in the area, more resources, more student time spent, etc).
Developing a strong lawyering and legal writing program that focuses on the actual skills needed by new lawyers is a workable, valuable, and less drastic solution than many others I have seen suggested. For example, I think it is Georgetown that is moving its entire 3L year to a clinical system? All well and good, but many schools simply do not have the structure or resources to do this. A comprehensive lawyering and legal writing program can, however, provide similar skills with less resources, albeit with less reinforcement and practice. Similarly, leveraging the legal writing program to provide these skills is less disruptive on the core 1L theory courses than trying to work skills into theory courses.
The reality is that a law student needs the base theoretical work provided by the classic 1L course load. At the same time, the law student should be introduced to the practical side of the law. Beefing up the often more-neglected legal writing programs in many schools can do this for less cost or disruption than some of the more grand, aspirational approaches I've read about.
Posted by: John Nelson | Oct 13, 2010 7:41:13 AM
I don't want to turn this into a debate between John and myself, but...
I agree a lawyering process course may be the best vehicle for some of the reasons he states. But it depends on the facts on the ground.
The reason I advocate for negotiation and legreg early in the curriculum is related to why he and others advocate for "skills". One of the reasons why skills need to be introduced early - even though they could also be delayed until the second year - is to make the point to the students as to what is "normal" for law school and what is "extra" or "different". There needs to be a place for non-litigation in the first year (which negotiation serves) and a place for statutory and regulatory law (which are only lightly touched on in the traditional courses).
But again, with so many things we want in the first year, and with the strong need for doing the basic analytical thing, different schools will make different choices. One advantage of building around a lawyering process course is the ability to do "modules" which allow some exposure but not necessarily a full course. One disadvantage is that the people who teach in that program may or may not be the best ones to teach all skills and approaches.
Posted by: howard katz | Oct 13, 2010 6:44:45 PM
I am enjoying the debate and it has helped me think of my own ideas on law school curriculum. I also think your ideas are good -- I had not thought of leg/reg even though my current job deals with local government law and environmental regulations.
I also agree with the facts on the ground. Each law school will be better situated to adapt its 1L curriculum in different ways.
I still disagree of the importance of having leg/reg in the first year. The core classes work best in developing an analytical mind. I've often heard the purpose of the 1L year is to teach students to "think like a lawyer." I believe in this mission and its importance, and I believe 1L curriculum should be geared in that direction. I don't believe most leg/reg courses are best geared towards this. (Although, as I've had to deal with legislation, statutes, and regulations the lessons learned in adapting legal theory in my 1L core classes have lent themselves well to statutory/legislative/regulatory construction.)
As for the fact that the people who teach a skills module in an introductory 'lawyering' class might not be the best ones to teach all skills and approaches, this is inevitable. Nevertheless, the purpose of the introductory course is in the name -- an introduction to these areas. A student might decide a contract drafting module was compelling or important and take an elective that focuses more in-depth on that subject. Similarly, someone exposed to negotiation might decide further negotiation courses would be prudent and interesting.
Just some thoughts.
Here's a question: some law schools seem to have ConLaw as a first year course. As far as I can tell the focus seems to be on Commerce Clause ConLaw. Some schools don't appear to require ConLaw at all. (I have heard this, but I am dubious of it.)
Would ConLaw serve the purpose of a leg/reg course in first year? Should ConLaw be in the first year? Should ConLaw even be required?
I'm partial to having ConLaw I and II as required courses. I enjoyed both and both served me well during the bar exam and during practice.
I've enjoyed the debate Mr. Katz, but I feel my anti-cold drugs are wearing off and I am becoming less coherent and more rambling.
Posted by: John W. Nelson | Oct 13, 2010 8:33:29 PM
I've enjoyed this discussion - I wouldn't really call it a debate since we agree on quite a bit.
I agree that if legreg doesn't teach core analytical skills, it shouldn't be in the first year. And that is one reason, I think, why so many of these courses have failed.
Because you and I agree on the importance of teaching "how to think like a lawyer", I am very skeptical of a course in con Law in the first year. Just when we begin to get students to "get" what is being done in the other courses, con law throws something totally different at them. AND, if taught with any intellectual honesty, it tends to heighten skepticism of any certainty and predictability of rules. there is plenty of time for students to become legal realists - con law in the second semester accelerates that process and therefore undermines many of our other first year goals (obviously I and others teach about the uncertainty and dynamic nature of rules in first year courses - it's a question of degree).
I do not believe con law serves the same purpose as legreg.
Properly done, legred would remind students that statutes and regulations are now the primary source of rules in many areas, and give students practice interpreting them and understanding why they are the way they are.
I'm partial to con law as required, and if there is only one 3 or 4 hour course, the structural stuff tends to get short shrift. At Elon we went from 3-2 to 2-3 (in the second year), to allow coverage of the structural stuff but also to give plenty of time for equal protection, due process, and some first amendment in a required course, so all students get at least some exposure. Not ideal, forces a certain division of topics that precludes a historical approach, rushes the introductory material a bit, but overall I think it reflects the realities of what students should know as future lawyers and community leaders.
Posted by: howard katz | Oct 14, 2010 9:55:33 AM
I am not a professor so I (maybe) cannot offer the best method for revamping the 1L (or even subsequent) curriculum. I do know, however, that the current method is not working. Law school is too much of a game, too much of hide the ball, and too much of "you gotta do what I say because I control the gate".
I have raised my concerns and thoughts to many professors and suprisingly they all agree for the most part. I have to wonder, if they all agree with what a lowly law student thinks, why isnt someone doing something about it? I feel that I have been under-prepared by law school and am just biding my time until the bar exam.
I learned more from my legal externship than in the 2 years before it. But there, being in real court cases, they didnt have classroom time all week to train me. I had to learn on the fly. So why cant law schools, with an environment where we can sit down and talk, do the job?
I agree that there should be a set 1L curriculum for basics and possibly a set 2L curriculum. But the Legal Writing program, which sounds great conceptually, has you jokeying for high grades writing a memo or brief before you even know what the heck you are talking about.
I dont have a great conclusive answer but I would imagine that law school should go something like: learn the basics, learn the reasoning, learn the writing, then spend your time putting them all together in real world type situations, then actually do real work type work. 1L = basics, reasoning, writing. 2L = graded legal writing and app. ad. and trial practice. 3L = internship/externship.
However, I think the real purpose of law school is for the school, the bar, West, Lexis, study guide producers, and Barbri and Kaplan to get their money ... only because they can.
Posted by: Billy | Oct 14, 2010 12:31:01 PM
There should be 4 year-long 1L courses:
1) Core Doctrine (Contracts, Torts and Property compressed into one course)
2) Civil Procedure (incl. Evidence)
3) Statutory Interpretation + Administrative Law + Federal Courts
4) Formal Logic + Brief Writing
Posted by: Raja | Oct 14, 2010 1:10:31 PM
I have to disagree with Mr. Billy who is frustrated by the law school hide-the-ball approach. And no, I am not a professor -- I'm a practicing lawyer.
I often here about how law school "hides the ball." This is often portrayed negatively. The people who who feel this way don't get why the American legal education system is so much better than most others.
Here's the simple truth: The practice of law is all about finding a hidden ball. All the time.
There is no such thing as a case on point. There is no such thing as a simple argument. Each time you are thrown into a new case or legal matter you come in with no context, no grounding, and you have to learn to swim over again.
Sure, repeat some areas enough and it's quick enough to get back into swimming form. But here's the thing: I have eaten, and see other lawyers eaten in return, those who just go through the motions in one case just because it had the same case styling as another.
Lawyers who think all divorce, or criminal, or contract, or bankruptcy, or debt collection cases are the same may not be committing malpractice. They may not even be bad lawyers. But they sure as heck are not good lawyers.
And this is the purpose of the "hide the ball" approach that is so maligned. It forces you, rather uncomfortably, to learn how to find that hidden ball. It is frustrating, as evidenced by the numerous folks who disdain it, but it is no more frustrating than the real practice of law.
This applies to more than litigation scenarios as well. If you cut and past into the same contract forms then sure, you might save some time and be more efficient, but you serve them better by treating each contract as a new thing. (This doesn't mean you don't borrow from others, it just means you begin with a blank and borrow rather than beginning with a form and subtracting.)
I remember classmates of mine in law school exasperated by the "hide the ball" approach. "Why can't they just tell us what they want?" is what they'd say. Because your clients won't tell you what they want, nor will the judges, nor will the opposing party!
Those that take to the socratic/casebook method with gusto learn how to adapt to each unique situation the practice of law throws at them. Those that do not are more often befuddled by new things or, worse, don't realize a legal matter they have IS a new thing.
However, I do think Mr. Billy has an interesting point about the practice of law. An ounce of practice sticks with a law student better than a pound of theory. Further, that practice can help the student understand the theory even better.
I spent a year prior to law school working as a legal assistant to a college friend who had just hung out his own shingle right out of law school. This required me to learn on my own, and rather quickly, some of the basics of legal practice. Drafting complaints, answers, motions, learning about service, jurisdiction, and venue and seeing how my boss and friend danced with the mayhem coming his way as a new lawyer out on his own truly helped me grasp many aspects of the theory better than I would have otherwise.
For example, many of my friends struggled through civil procedure as a dull course. I blazed through it, loved it, for I understood how powerful and important it was.
So practical experience can be very important, and it should be considered as a core part of any law school curriculum. I think the more difficult questions is where and when to work it in, and how best to provide it.
As for complaints about "hiding the ball," the best thing any lawyer can learn is how to find something hidden. This is a very important, core part of legal education that, sadly, I don't think many people truly grasp.
Posted by: John Nelson | Oct 14, 2010 9:27:11 PM
John, I hope you don't mind if I share your comments with my 1Ls.
Posted by: Lidsky | Oct 14, 2010 9:50:11 PM
Not at all. I hope it helps them.
Posted by: John Nelson | Oct 15, 2010 6:51:04 AM
John Nelson says, "the best thing any lawyer can learn is how to find something hidden." This is The core legal research skill. Students must be taught how to problem-solve using the relevant research tools for their jurisdiction and specific practice areas. As lawyers, they must be able to see the issues, know what tools can help them analyze the issues, and develop the expertise and confidence to craft practical, helpful answers. These skills come only with training and practice.
Posted by: Faye Jones | Oct 18, 2010 12:05:02 PM