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Saturday, May 17, 2014

Justice Scalia and Developing an Advanced Required Curriculum

By now, everyone has had a good chance to read Justice Scalia's remarks at William & Mary and to read many thoughtful posts.   I'm here to say that we here at Texas Tech have a strong advanced required curriculum.  Not only do all the students take Torts, Contracts, Legal Practice, Criminal Law, Property and Constituitonal Law during the first year, they take Business Entitities, Criminal Procedure, Commercial Law, Evidence, Income Taxation, Professional Responsibility, and  Wills & Trusts (26 credit hours) during their second and third years.

And it's not enough to directly address the phenomena Justice Scalia identified--the rapid increase of regulation.  He noted that there were entire fields now that did not exist when he was in law school and although not on his list, my own field, health law, is very much one of them.  It is almost entirely a creature of regulation. 

While everyone has heard about the Affordable Care Act, it is merely the latest in what have been wave after wave of regulatory programs springing out of nowhere and imposing substantial compliance obligations.

So what to do as a matter of curriculum?  Of course looking just at health law, we teach them the regulatory schemes that exist while they are in law school, but we do so with the guarantee that they will change substantially by the time they graduate (and more likely during the course.  Teaching healthcare regulation can be like weaving Penelope's Shawl).

In the bigger picture, the rate of regulatory growth leaves the question of whether a student can really be comfortable practicing law without an understanding of Administrative Law?

If it helps, Medical Education has exactly this problem.  There is so much to know that it is no longer possible to study each topic separately--instead all are moving in the direction of an integrated curriculum.  Here's an example of Yale's.  But as this article reflects well  change is no easier for medical faculty than it is for us.

The idea of a "general education" is as central to medical as it is to law, but has become equally unrealistic.    Like Law, phsyicians can specialize but they are not limited in their practice.  When it comes to prescribing medication, any doctor can prescribe any drug for any reason.    Equally, nothing but self-restraint (and fear of liability) prevents a licensed attorney from offering advice on a topic about which she knows little.

  This situation of too much to know in too little time probably isn't new.  I'd suspect that all law schools at all times have wrestled with what courses "all" students should be required to take.   No matter how many courses are required, at some point, no one can take a class covering everything they "should" know as a lawyer.  Some schools that have minimized required courses offer paths or tracks for students to take depending on their interests.  Essentially this is academic advising instead of a required curriculum.

More later, but one way to tackle this Augean Stable would be, again taking a medical school model, to put aside the idea that every subject needs to fit into a specific amount of weeks with a specific amount of credit hours.   Many schools are looking at offering one course at a time in a sequence rather than let schedules emerge according to availability.

It's easy to dismiss Justice Scalia's words as nostalgia, but that would be a mistake.  His point is a good one.  We probably all should, actively, be thinking not just about what "every" new lawyer should be able to do or know, but how to structure a curriculum so that students can have some coherent base in one or two areas.  Even though the reality of law practice is almost all of us end up doing something different than we thought, it still might be helpful to know not just "a little about a lot" but more than a little about something.

Posted by Jennifer Bard on May 17, 2014 at 05:46 PM | Permalink


A few years ago I wrote a post about the possibility of law school on the block plan
(http://prawfsblawg.blogs.com/prawfsblawg/2009/10/law-school-on-the-block-plan.html) and got some good comments on the idea.

Posted by: Howard Wasserman | May 17, 2014 6:53:58 PM

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