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Wednesday, April 16, 2014

Do Chemerinsky and Menkel-Meadow's Views on Curriculum Represent a Consensus View in the Legal Academy?

I'm focusing on only one piece of this op-ed by Erwin Chemerinsky and Carrie Menkel-Meadow. They write:

Some, including the Bar Association’s task force, have suggested that states should reduce the level of undergraduate education required to take the bar exam. Yet the profession benefits enormously by having attorneys who have undergraduate degrees in other fields: This makes them more well rounded and better-educated citizens, as well as better lawyers. Many other countries have begun to recognize this, and nations like South Korea, Japan, China and Australia have recently shifted to the American model of requiring an undergraduate degree before law school.

Another common suggestion — also made by President Obama — is to reduce law school to two years. This is a terrible idea.

The profession needs law schools to produce lawyers who are better prepared to practice law, not less well trained. That would be impossible in two-thirds of the time. If law school were of just two years’ duration, the first things to be cut would be clinical education and interdisciplinary courses, which are the best innovations since we went to law school in the 1970s.

We agree that legal education could benefit from further innovation, but not in the ways many of the critics advocate. Law schools need to teach a greater diversity of subjects to improve legal judgment and decision-making. In this respect, law schools should emulate business, architecture and planning schools. These have adapted to new economic realities by emphasizing the teaching of leadership, corporate governance, new finance and negotiation skills.

Law school faculties, in their teaching and their scholarship, must deal with the emerging problems of the 21st century. Law schools need to develop new courses to provide students with the expertise to deal with the crucial problems of our time in fields like banking law, national security, conflict resolution, food safety, Internet law and migration policy. There should be “problem-based” seminars in fields such as public health, homelessness, environmental habitat regulation and world peace.

None of this will be possible if law school is cut to two years. Sometimes, less is not more. And sometimes, the rhetoric of crisis leads to proposals that are far worse than the actual problems we face.

I agree with the last sentence, as it turns out, although that has nothing to do with whether there is a crisis or not (I'm not sure the label is terribly useful, but neither is it outrageous), or whether law school reform is necessary (law school reform is always necessary). It's not just that treating reform in this area as a response to a crisis may lead to ill-considered reforms, although I think that is true. Rather, I'm worried that if the "crisis" is seen as having passed, it will sap the will and energy to think about useful long-term ways to reform or remake law schools. Law schools are ostensibly faculty-governed, and faculty have an ongoing ethical and professional obligation to monitor what they are doing and think about how they could do it better, crisis or no. I also agree that increasing and even mandating finance and accounting related offerings would be a good idea for law schools. 

That's a side note. What I am really interested is in asking whether Chemerinsky and Menkel-Meadow's views represent a consensus view in the legal academy. I'm pretty sure the answer is "no." Of those interested in law school reform issues, as far as I can tell, many believe there is nothing wrong with a two-year law degree, or with a two-year degree for licensing purposes with the option of additional years of study. Of those who prefer a required third year of study, I suspect that a fair number of them favor it for traditionalist reasons and are not looking to redo the third year altogether; of that group, some hold those views strongly and others are just casual defenders of the status quo. Of those who favor a third year of study that does different things than the current curriculum does, I suspect that many of them would rather have that year emphasize lawyering skills and not "21st century" issues like "national security, conflict resolution, food safety, Internet law and migration policy."

And, sadly, I suspect a large (but shrinking?) number of law professors are still just not that concerned with these issues at all. Given a relatively costless choice like, say, going to an AALS panel on law school reform or hanging out in the hotel lobby, a substantial number will still choose the latter option. (Although I will note that the numbers of people attending those sessions, and voicing interest in such issues at their own institutions, has certainly grown.) In an ostensibly faculty-governed environment in which the faculty often don't govern much and mostly do their own thing in their own classroom, apathy is always a problem.

None of this makes Chemerinsky and Menkel-Meadow wrong, of course. (I think they are.) But I wouldn't treat their views as representative of the legal academy. 

One last word, on “'problem-based'” seminars in fields such as public health, homelessness, environmental habitat regulation and world peace." I think the idea of problem-based seminars on public policy issues is a good one. (And not just public policy issues: they could and should work with issues involving the private sector as well.) In my view, the benefit of such seminars, if they're done right, will derive substantially from bringing in people other than lawyers as students and speakers. Most public (or private) policy issues involve a variety of stakeholders with different skills and interests, and this would be a useful way to learn what (if anything) lawyers can contribute, how they should deal with these different stakeholders, and what the non-lawyer stakeholders think is good or bad from their experience working with lawyers.

But not on "world peace," for God's sake! Too many law schools are already too intent on being "national" schools dealing with national or global issues, emulating schools at the top of the food chain. They are too little concerned with local issues, with the fact that they serve a local market, with forging relationships with local lawyers and stakeholders, and with performing actual services for the state, city, or region in which they are located. Regardless of the conclusions these seminars draw, the recommendations they make, or the service they provide--which, obviously, need not fall into some cliched and rather ideologically particularized vision of "social justice"--it may be that by focusing on difficult local issues, these seminars could provide a useful education to the students, expose students, experts, and stakeholders to each other and help them to sit down at the same table, provide the kinds of recommendations that might be useful to local governments (or private interests) in an age of straitened resources in which many states and localities simply buy public policy solutions off the rack from various think tanks and interest groups, and actually give something back to the region in which a law school is located.

None of this is adequate reason, in my view, for a mandatory third year; and the more national or global the subject these seminars handle, the less useful and educational they will be. Nor must or should these courses have a specific, heavy ideological tilt; they're about problem-solving, not political indoctrination. (Maybe a seminar on public policy issues surrounding a local crime problem would recommend stop and frisk! Or a seminar on why a locality is having trouble growing new businesses would conclude that local licensing and zoning requirements are overly burdensome and monopolistic and should be lessened or repealed! Who knows?) But the idea itself is a good one.   

Posted by Paul Horwitz on April 16, 2014 at 12:08 PM in Paul Horwitz | Permalink

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