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Friday, April 13, 2018

The myth of the stagnant law school curriculum

I didn't want to jump too quickly into the legal ed discussion after 60-some posts over 5 weeks here at Prawfs. But Dean Dan Rodriguez highlighted a comment from ABA President Hilarie Bass today, and I thought I'd stew on that for moment (before returning to legal ed next week). The comment: "We are teaching in law schools the same way we have for 100 years."

Even if a paraphrase, it's consistent with several comments to that effect in the early posts of the Future Legal Ed posts. Instead, I confess I find laments among some that we’re living in a Langdellian environment of legal education largely incorrect and want to share a few brief thoughts on what legal education looks like today as opposed to a hundred years ago.

Langdell envisioned a two-year, entirely fixed, classroom-based curriculum without an accrediting body; we now have a three-year, mostly-elective, some field and some classroom curriculum that the ABA at times micromanages. We had an entirely optional system of education that was unnecessary to take the bar exam; now, it's a precondition to the bar in most jurisdictions (indeed, it makes one wonder why the ABA is still accrediting law schools). Faculty spent little time engaging in the scholarly enterprise; today, that is emphatically not the case.

True, most first-year curricula today include substantial common-law courses using the casebook method and a (highly modified) version of the Socratic method so yes, a first-year student in 1918 might have expected a prawf to cold call on him (ed.: not a lot of hers back then) and ask to recite the facts of Hadley v. Baxendale (which isn't a terribly Socratic question, to be honest). But most first-year courses are not year-long courses as they were 100 years ago; we have exams (err, "assessment") at the end of the semester, not the end of the year (think The Paper Chase); legal research and writing has moved from nonexistent to (typically) a 4-unit course in the first year; courses like legislation, now-mandatory ethics, or electives are now a part of many first-year curricula.

We’ve seen a dramatic rise in student assistance related to career development, academic success, bar preparation, and professional formation. Students engage in more clinical courses, experiential courses, simulated courses, practicums, externships, part-time jobs, and study-abroad programs. There are more journals, more advocacy competitions, and more student organizations.

Schools have dramatically altered their curricula over the last couple of decades. Schools have seen a surge in intellectual property, international/comparative law, and alternative dispute resolution courses since 1992. (Note: the ABA also has a 2002-2010 study, but sadly a free PDF is not available.) Schools have, in contrast, cut back on admiralty, products liability, agricultural law, and trusts & estates. They’ve developed increasing specialization or certificate programs. Upper-division drafting courses (such as contract drafting, litigation drafting, and legislative drafting) have exploded in popularity.

Now... to briefly take another example, Westlaw uses the same Keycite system it’s been using for 150 years, but few, I think, consider this a sufficiently-similar touchstone to say that Westlaw is “basically” the same as it was back then. So what is it about legal education that attracts this myth that it looks basically the same?

My sense is that some believe legal education is not changing (or has not changed) quickly enough. But rather than state that we need to do X, Y, and Z (although that inevitably comes), or that we're not doing it quickly enough, a false narrative is projected onto legal education: you haven't changed, you see, so now is the time to start. In reality, I think, we dramatically understate the changes in legal education when we ignore these many, many changes over the last century (indeed, mostly over the last half-century, and some in the last decade). Maybe more is required. But it is assuredly not because a lack of change.

(It’s a slightly different reflection than Professor Harold Krent’s correct and important observation that law school has changed significantly in the recent past, or from Professor Deborah Merritt's that past changes have been welcome, grudguing, slow, and perhaps without the impact we may desire.)

So, what about these changes? Were they good, right, beneficial, useful, valuable? More on that to come....

Posted by Derek Muller on April 13, 2018 at 09:24 AM in Teaching Law | Permalink


One suggested correction, I think you mean the West key number or digest system is 150 years old. The topical tagging of cases using a system of headnotes. Keycite is a relative new comer of a citation check West developed after Lexis discontinued West's license to use Shepard's.

Posted by: Edward Hart | Apr 16, 2018 10:27:58 AM

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