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Friday, May 16, 2014

Justice Scalia and the upper-level curriculum

Following on my post on Justice Scalia's William & Mary commencement address.

Scalia also criticizes the absence of required upper-level classes, noting the curriculum from his Harvard days. I probably would be all for required upper-level classes, but do not see how it would happen. The problem is that the first-mover would be at too-great a disadvantage. Schools are now actively and competitively recruiting good students and students are playing schools against one another; one thing schools may try to offer is "flexibility" in the final two years and the chance to "create" an upper-level course package. School A thus can sell that flexibility as against School X and its mandatory post-1L classes (however limited they may be). School X is not going to win the battle for that student (all else being equal), even if its approach may produce better Scaliaesque lawyers-as-professionals.

On the other hand, is that move necessary? At least outside the super-elite schools, the pressure of bar passage causes schools to push students hard towards "bar-tested" courses, which likely are the same courses that schools would make mandatory in any event.

Posted by Howard Wasserman on May 16, 2014 at 01:53 PM in Howard Wasserman, Teaching Law | Permalink


I'm skeptical that flexibility in the upper class curriculum is a deal maker / breaker for very many students. It seems like the kind of thing deans throw into a brochure as a bonus, or matriculating students cite when they have trouble articulating their concrete reasons (or are embarrassed by them).

On the other hand, it probably is true that in the lateral market the ability to teach a pet seminar over a large bar lecture is a real inducement.

Posted by: brad | May 16, 2014 3:03:35 PM

Agreed, I doubt very many, if any, students would choose a school in order to avoid an extra 2 or 3 doctrinal courses in year 2.

Posted by: Anon | May 16, 2014 4:41:00 PM

I doubt know the numbers on this. But I tend to doubt that there are many professors who teach nothing but pet seminars and courses. Even at schools with a 2-1/1-2 load, two of those classes are likely either 1L or large-enrollment upper-level courses. What we don't know (and it may vary by school) is whether the problem is because Harvard isn't offering Fed Courts or because Fed Courts is being offered opposite "Legal Process and Society" and the students are opting into the latter.

Posted by: Howard Wasserman | May 16, 2014 4:48:14 PM

We also don't know to what extent the titles of courses are accurate reflections of their contents. There can be goofy-sounding classes like "legal process and society" that turn out to be "civil procedure as taught by Larry Solum," http://apps.law.georgetown.edu/curriculum/tab_courses.cfm?Status=Course&Detail=476. Meanwhile, a class called "Federal Courts" might well be taught primarily from "Federal Courts Stories" rather than a casebook.

Posted by: Will Baude | May 16, 2014 5:21:02 PM

Scalia's analysis is pretty good. I like that he cites both Brian T. and Paul Campos in his comments. Very timely, and nice to see that the Supreme Court is following hot topics in legal education.

Posted by: Jojo | May 16, 2014 5:39:09 PM

I think you're right that no one except maybe some emeritus professors get away with teaching no large lectures on core topics. But if a school were to adopt significantly more required courses that'd mean more sections of those courses and someone would have to teach them. Either the school would have to do more hiring, use adjuncts for those courses, or they'd have to ask existing faculty to give up a seminar in favor of a large lecture. I think it's more plausible to believe that the third choice would have an a non-trivial effect in the lateral market than to believe that it would have a non-trivial effect in the top student market.

Posted by: brad | May 16, 2014 5:45:07 PM

UW-Madison and Marquette are, I assume, the only schools in the country to actually have some significant measure of "required" upper level courses actually. If a student wants to get the "diploma privilege" (automatic admission to the Wisconsin bar, no need to take the bar exam) they need to make sure to take a certain selection of upper-level courses, set by Wisconsin supreme court rule. (Diploma privilege is only available to students at Wisconsin law schools, meaning UW and Marquette). A UW student doesn't technically need to take all of the "diploma privilege" courses to get a UW or Marquette JD, so the courses are not literally required, but in practice almost all of our grads want to get the "free" bar admission, and so, for example, almost all of our students take Trusts & Estates, which is required by the Wisconsin SC rules. Along with several others. The two in-state law schools have some discretion in how they interpret and apply the rules, but in practice it means that both Marquette and UW "require" (in a loose sense) a significant number of upper-level classes. The logic is that the state is comfortable waiving the normal bar-exam requirement if it is assured (via supreme court supervision of the in-state law schools) that students have received a passing grade in courses comprising a curriculum deemed essential for legal practice in Wisconsin. (This system has been challenged on federal constitutional grounds in the past by graduates of other law schools seeking to practice in Wisconsin, and who have to take the Wisconsin bar, but those lawsuits have all failed to date).

Is the Wisconsin system a good or a bad thing? I don't really know. But anyone advocating "required" upper level courses in law school should study the Wisconsin experience, for sure.

Posted by: Jason Yackee | May 16, 2014 6:33:36 PM

Those schools are combining legal education and bar prep, so they're trying to do something slightly different. But my guess is that any effort at requiring classes would identify many of the same bar-tested classes.

Posted by: Howard Wasserman | May 16, 2014 10:21:30 PM

I have two thoughts:

1. First, Scalia comes across as having an 'all or nothing' approach (perhaps unsurprising?). Why can't we have people with 3 year degrees called lawyers, as well as people with 2 year degrees called lawyers. Naturally the 'top' schools will stick to what they perceive as a more prestigious 3 year program, but if we can have people with 2 year law degrees, that doesn't inherently mean they need to be called something else and treated as having specific rather than general skills. He seems to suggest that anyone with less than 3 years would simply be a subject-specific phoney, when this doesn't need to be the case.

2. Second, the first mover problem in curriculum structure is less of an issue with the 'top' schools. If Harvard returned to the Scalia curriculum, would it lose students? Not in any real sense. If a third-tier law school did, then perhaps - but we see the lower rated schools copy the top schools, so the top schools (who can virtually do as they like, in a customer sense) are the ones to lead the charge.

Personally, from outside the US, I'd support a 2 year law degree as entitlement to practice; the 3rd year would be optional (though no doubt the top schools would only offer a 3 year degree for various reasons, this shouldn't be essential). Not every lawyer needs or wants to be a Scalia.

Posted by: Thomas NZ | May 17, 2014 7:36:15 AM

If school's were going to sell post-1L flexibility to potential students, why hasn't there been a push to sell 1L flexibility? Am I wrong to assume that every law school has a fixed 1L schedule that all 1Ls have to take? Shouldn't this open up the opposite arbitrage opportunity to the one discussed in this post, i.e. a middling school selling complete scheduling freedom from the get-go to attract students with slightly higher LSAT scores? Presumably this would also be a selling point for faculty hires as well, since (at least at my alma mater) few professors really want to teach 1L civil procedure or torts or contracts when they could be teaching environmental law or fed courts or securities regulation.

Posted by: Andrew | May 17, 2014 3:12:15 PM

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