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Tuesday, April 15, 2014

What should every lawyer know?

It is schedule-selecting time again, particularly for 1Ls trying to map out the next two years. A colleague proposed a different way of thinking of this: Lawyers, as Tocqueville's American aristocracy, should have some core base of legal knowledge when they leave law school. Thus, there is some set of courses every law student should take--beyond classes targeting the areas in which a student wants to practice, bar-tested classes (although there is some overlap), and classes providing general skills and experiential practice. What is the law school canon? It must be a small portion of the 59 post-1L credits, thus leaving students room to 1) explore specific areas of interest and 2) do some skills/experiential stuff.

Accepting the underlying premise (and I understand that some people might not), what courses belong in that canon? If you were advising 1Ls on the doctrinal classes they should make sure to take before they graduate, regardless of anything else, what would they be? [Update: Just to clarify: This is for upper-level courses; I take as a given that the current 1L curriculum is unchanged] [Further Update and Clarification: I am not talking about career advice and what they should take for career/practice purposes, but general legal knowledge]

A tentative list:

• Evidence

• First Amendment

• Bus Orgs/Corps

• Federal Courts (at least if you are even thinking about being any type of litigator)

• Administrative Law

• Wills/Trusts/Estates

This is 19 credits, leaving another 40 for the student to play around with. What am I missing? Is there anything that should not be on the list?

Clarifying Again: Let me try to put the question this way. People would say you should not leave college without taking a basic course in some area of human knowledge and creation, such as, say, Shakespeare (even if your career is not going to involve his work in any way). So what are the legal equivalents of Shakespeare?]

Posted by Howard Wasserman on April 15, 2014 at 09:31 AM in Howard Wasserman, Teaching Law | Permalink

Comments

I'm not sure I'd include Evidence or First Amendment as mandatory classes for all students. I would, however, add Criminal Procedure (since most Criminal Law courses don't cover it).

Posted by: Urska | Apr 15, 2014 1:16:51 PM

I'm curious about your inclusion of 1st Am. Is it likely to be a real issue for many lawyers? (I mean this as a real question- I would be interested in hearing more about why you include it.)

I'd want to suggest at least one class that involves a lot of statutory interpretation, as a lot of law involves that- more than most students would expect after the common-law emphasis of much of 1L. I often suggest that immigration is a good class for this skill, as students have to spend a lot of time trying to figure out a complex and poorly written statute. Immigration also provides an opportunity to either learn some admin law (if the student hasn't taken admin, though I agree they should) or see how it's applied. After Padilla v. Kentucky, it's also an important class for students interested in criminal law work. Given this, while I wouldn't go so far as to say that all students should take immigration, I do think it's a helpful class for more students than would expect it at first.

Posted by: Matt | Apr 15, 2014 1:20:40 PM

Tax.

Posted by: Steven R. Morrison | Apr 15, 2014 1:24:05 PM

This is decidedly *not* about what you are going to do in your career. Rather, this is about what all lawyers should "know" and I think the First Amendment, which many regard as the most important individual liberty, qualifies.

I see Steven's point about Tax, which also gets at the goal of having a statutory course (although I think many of the other classes on the list involve some intensive statutory interpretation.

I might amend my original post to replace Ad Law with an Leg/Reg course, covering both statutory interpretation and legislation.

Posted by: Howard Wasserman | Apr 15, 2014 1:31:51 PM

Employment Law. Virtually all lawyers will be employees or employers during their careers. Even for folks who have no interest in being an employment lawyer, it is (in my admittedly biased view), critical for every lawyer to have a basic understanding of the regulation of the workplace.

Posted by: Brian Clarke | Apr 15, 2014 1:51:23 PM

I'd bump Federal Courts in favor of Civ Pro, wrapping in some of the more fundamental concepts and incorporating some state-specific stuff.

I'd also include Contracts. If there was some way to do a Property-lite course that included a good bit of WT&E, that would be awesome. I'm fairly ambivalent on Admin vs. Leg/Reg, but I think you need one of them.

Posted by: My $0.02 | Apr 15, 2014 2:00:11 PM

Just to clarify: This is for upper-level classes, the last two years (or three years for part-time students) of law school. I am starting from the premise that that the basic 1L curriculum for most schools (Contracts, Torts, Property, Civ Pro, Crim, Con Law) are unchanged.

Posted by: Howard Wasserman | Apr 15, 2014 2:20:16 PM

Alternative dispute resolution. 95% of cases settle, and lawyers need to understand negotiation strategies and best practices, as well as how to prep their clients for and how to properly participate in mediations and arbitrations.

Posted by: Kendall Isaac | Apr 15, 2014 2:23:04 PM

Of your list, I took only administrative law...


• Evidence
• First Amendment
• Bus Orgs/Corps
• Federal Courts (at least if you are even thinking about being any type of litigator)
• Administrative Law
• Wills/Trusts/Estates

Posted by: new prof | Apr 15, 2014 2:58:38 PM

If the goal is to have lawyers know things that are relevant to the lives of the largest number of people, how about consumer law? Everyone is a consumer, and many businesses deal with consumers.

Posted by: A commenter | Apr 15, 2014 3:12:25 PM

You ended up asking two very different questions. In your comments, you say that the question is what lawyers should "know" (implicitly, in order to be a well-rounded person), in counterdistinction to what would be important as a matter of career and practice. But in the main post, you framed the question as "If you were advising 1Ls on the doctrinal classes they should make sure to take before they graduate," which many of us took (I think not unreasonably) as advice-giving based at least in part on career and practice considerations rather than lofty aspirations about being well-rounded.

If we are talking well-rounded lawyers, I'm not sure that I see Fed Courts and Trusts & Estates as being essential shared knowledge. How many non-civil-pro-specialist cocktail conversations that assume basic familiarity with Younger abstention have you participated in?

Posted by: TJ | Apr 15, 2014 3:57:01 PM

No need for First Amendment, which is specialized and ever-changing anyway. I mean, it's very important to all Americans, but really not very important to the day-to-day lives of nearly all lawyers. It is sexy and highly politicized though, which is why law profs like it.

Tax is a must take. It pops up with everything - family law, estates, real estate, torts, M&A, employment, labor, etc.

I'd add conflicts of law, a course that few litigators and fewer transactional lawyers take, but pops up at least once every few years in each of their practice areas. If you know some basics about conflicts, it really can help your clients. It's often overlooked, even by the courts. (Unlike Crim Pro or First Amendment where the existence of conlaw fight is obvious even if the resolution of it is not, there's a lot of gray area to conflicts and a good lawyer can really use that to his or her advantage.)

I'd also add a basic bankruptcy law course. At some point in your career, there will be a bankruptcy issue that you must address. Bankruptcy is like Plan B - what happens to your contracts, your commercial rights, your judgments, your litigation when there's not enough money to go around?

Posted by: Jojo | Apr 15, 2014 4:09:05 PM

TJ: Then I apologize for any lack of clarity, although I did specify that I was asking beyond "classes targeting the areas in which a student wants to practice." I thought that was clear enough.

Posted by: Howard Wasserman | Apr 15, 2014 4:15:43 PM

Negotiation - it's important in any professional role.

Posted by: Art H. | Apr 15, 2014 5:03:57 PM

Howard, I see why you are running in to confusion in the comments. You say you want stuff that all lawyers should "know" rather than "likely to practice", but then you put Fed Courts there "if you want to be any type of litigator." which seems like, again, career advice.

You also want to seem to exempt "skills" in the first paragraph. I agree with others that negotiation is fundamental, and everyone should have to know something about it.

In addition, I don't know if that there is consensus that "everyone" should take a course in "Shakespeare". Plenty of STEM grads never do.

But, accepting the premise as amended, Leg / Reg seems to be the most obvious one, with heavy statutory interpretation, for both practice and for knowledge, but I think we will see more of a shift to this in the first year curriculum regardless.

Exempting leg/reg, is Con Law a first year course? It is many places, but not all. If that isn't a first year course, then we should include at least 14th amendment and separation of powers from that course.

But the one I am surprised that no one has mentioned yet is international law. Despite not having taken it in law school, I still think that some knowledge of how international disputes are being resolved in an increasingly connected legal world would be fundamental, even if you don't practice in that area.

Posted by: anonandoff | Apr 15, 2014 7:08:00 PM

Astronomy.

1 in 4 Americans do not know that the Earth revolves around the Sun:

http://www.usatoday.com/story/news/nation/2014/02/15/newser-earth-circles-sun/5508413/

Posted by: Eugene Pekar | Apr 16, 2014 8:12:59 AM

If the goal is cultural literacy in the context of lawyering, I recommend that students get acquainted with a basic history of our domestic legal system. If it were to become mandatory, it wouldn't have to be a full course. It could be delivered in a shorter series of online lectures, with a basic test to ensure that the student paid some attention to it.

Posted by: John Steele | Apr 16, 2014 10:50:08 AM

I'll join the "something on employment" and "bankruptcy" crowd, and add another area of increasing importance: intellectual property and its close cousin unfair competition. An astounding proportion of disputes (and conflicts not rising to the level of disputes) revolve around "this idea is mine" and/or "I will not tolerate anyone else in my sandbox"; lawyers should explore that mindset, at least a little, in copyright, or in trademark-and-unfair-competition, or in patent, or in antitrust contexts.

Posted by: C.E. Petit | Apr 16, 2014 11:30:52 AM

What do you n e e d in your life, to live, to assist parents, kids:
tax, employment, insurance, health/elder law (unless, of course one or one's parents plan opting-out of growing old or dying), civ pro, crim pro, admin law/legs/regulation, negotiation, and, being a nation of immigrants - immigration law (certain states may substitute Indian Law).

Posted by: John | Apr 16, 2014 1:15:54 PM

I'm going to join the chorus that questions First Amendment. Especially if a school offers Con Law as two semesters, then a First Amendment course is not vital (unless a student has a strong interest). I think the better argument is for Con Law II, with a month or so of 1st Amendment thrown in.

This might be controversial, but I don't think Admin Law is vital. I think that this is an example of a subject that professors have tended to practice in much more than their students are likely to. I'd also note that parts of Admin could be folded into Fed Courts.

I think Evidence belongs, as does Bus Orgs (in fact, Bus Orgs should be a first year course IMHO). Wills/Trusts is high up there as well. An intellectual property survey would be good too. Not many schools do this, but an intro class that covers both bankruptcy and secured transactions would be pretty close to vital if it was offered more (if offered separately then I think fairly few students end up taking bankruptcy, which is problematic). I don't know if this is done at all, but a survey course which covers both immigration and employment law at a high level would expose students to areas of law that are both pretty esoteric otherwise.

I guess more broadly, if we're going to talk about courses all lawyers should take, then maybe we should handle disciplines with commonality sort of like we handle intellectual property - have a high level survey class that covers a variety of related topics, and then specific courses that assume students already know the basics of the subject and dig much deeper into its details. That way we'd have students who at least know the basics of most broad areas of law they're likely to come into contact with.

Posted by: An0nAdjunct | Apr 16, 2014 2:39:42 PM

I agree with the tax suggestion including at least an introduction to accounting principles. It's bad enough most Americans don't understand how the basic moving parts of the tax system (i.e. how the graduating income tax works to mostly prevent a higher gross income resulting in a lower net income), but at the very least all lawyers should know and be able to explain them.

Posted by: brad | Apr 16, 2014 3:05:58 PM

Howard's question is not new but it is provacative and relevant. It deserves our attention.

See Sherman J. Clark, Law School as Liberal Education, 63 j. Legal Educ. 235 (2013) available at: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2353072&download=yes. Here is the abstract of this article:

Abstract:

The president of a liberal arts college, if asked why college is worthwhile, would be able to respond on several levels. He or she would certainly say something about the value of the degree as a credential to help students get a job or get into graduate school. In addition, he or she would likely emphasize the professional value of the skills and capacities developed through a liberal education, which can help students succeed at work or in graduate school. More deeply, however, we would expect that he or she would have something to say about the intrinsic value of the education and experience itself — why a thoughtful person might want to go to college, apart from the work it might help one get or do.

I believe that something similar can be said about law school. The legal academy and profession are confronting difficult questions about the value of legal education — about whether and how law school is worthwhile. Most of this conversation appropriately focuses on the commercial and professional value of a legal education because that is the main reason people go to law school — to qualify and prepare for careers. Here, I hope to add to the conversation by considering a set of ways in which law school, like a liberal arts undergraduate education, may be valuable to a thoughtful person apart from its instrumental value in qualifying and preparing one for work. How might legal education help one to thrive, to live a full and satisfying and meaningful life?

I recognize that framing the question in this way may create some skepticism. Indeed, vague talk about liberal education in the face of concrete realities, such as escalating tuition and unclear job prospects, warrants skepticism. Moreover, thinking about law school and thriving requires a willingness to think about what it means to thrive: Who are we to say what it might mean for any given person to live a full and satisfying life? But if we are to be thoughtful about the impact of law school on the quality of lives, we must be willing to think at least tentatively about what makes for quality in life. All we can do — indeed, what I think we have an obligation to do — is to try to be as thoughtful as we can about the ways in which legal education also may be valuable education for life, even if not every student will appreciate that deeper value, and even if it proves more difficult to describe than its more obvious professional benefits.

Tom Baker

Posted by: Thomas Baker | Apr 17, 2014 9:40:55 AM

FWIW, I think First Amendment law is fascinating but not a core need for most lawyers. On the other hand, most practicing lawyers should take a Remedies class and a Corporate Finance class. Every practicing lawyer is asked, at one time or another, "can I sue them if they breach?" or "Can they sue me? For how much?" or "Can a court order them [me] to stop doing XYZ?" As for corp. fin., every lawyer considering a structured settlement for a plaintiff, or negotiating negative covenants for a client, or reviewing a disclosure document for an offering, or drafting regulations for an agency, ought to know the basics of finance and some basic accounting.

Posted by: Douglas Levene | Apr 17, 2014 1:12:13 PM

I realize you say general legal knowledge as opposed to practice, but isn't a basic understanding of Negotiation something every lawyer should have? Not all lawyers litigate, but all lawyers (and all non-lawyers as well) negotiate. So I second Art H's nomination.

Also, I second Steve Morrison's nomination of Tax. The universe (or at least our corner of it) revolves around the tax code, regardless of what area of practice one is engaged in.

Posted by: Howard Katz | Apr 18, 2014 10:00:02 AM

I would dig a little deeper first. Until we get Langdell fully out of law schools, I don't think we can come up with any good list of necessary courses. Courses parsing redacted appellate cases miss much of the art, complexity, and humanity of the law. See: http://www.huffingtonpost.com/harold-lloyd/from-days-of-auld-langdel_b_5212107.html

Posted by: Harold Lloyd | Apr 27, 2014 11:34:39 PM

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