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Wednesday, November 22, 2006

Curricular Reforms and New Governance

I’ve been thinking some about curricular reforms for several reasons. It’s on the agenda of my school as with many other schools. Indeed, in some schools, like Vanderbilt and Harvard, it has recently been a major driving force of debate and change.  Also, I have been recently appointed to serve on the AALS committee on curricular reform. Chairing the committee is Dean Edward Rubin, who has been extremely innovative in his thinking about curricular changes for Vanderbilt JDs. Also on the committee is Martha Minow, who chaired the HLS reform.

There has been much talk about Harvard successful completion of a reform committee’s work, unanimously adopted last week by the faculty. More than the fact that uniting such a large, and at times conflicted, faculty around a significant reform was a personal accomplishment for Dean Kagan, the reform itself is interesting and I look forward to hearing about its implementation and whether other schools will move in similar directions. Of course, as Brian Leiter was quoted saying, other schools have already been adopting similar reforms, but I think the significance of this reform is both in its breadth and in the fact that this is Harvard. So what is the HLS reform about? Basically it is about cutting down the hours of the traditional first year courses (contracts, torts, civ pro, crim, property) to make way for additional mandatory 1st year offerings. The three new course requirements are a new course on legislation and regulation; a course on international/comparative law; and a course on “problems and theories”.

This last course offering is the most interesting to me, because I see it as very much part of what I have termed “the rise of governance in contemporary legal thought”. Here is how Harvard described their problems and theories course: “the new course…will allow students to reflect on what they have learned through systematic treatment of methods of statutory and case analysis, discussion of different theories of law and work on a complex problem (or problems) beyond the bounds of any single doctrinal subject, explored through simulation and team work. The course’s focus will be on complex problem solving. The basic materials used will be case studies of complicated situations involving facts and diverse bodies of law and demanding both creativity and analytic rigor in generating and assessing solutions.”

Overall, the three new focal points are intended to achieve the following goals, the last two again resonate particularly well with contemporary ideas about regulatory innovation and participatory governance:

"greater attention to statutes and regulations; introduction to the institutions and processes of public law; systematic attention to international and comparative law and economic systems; opportunities for students to address alone and in teams complex, fact-intensive problems as they arise in the world (rather than digested into legal doctrines in appellate opinions) and to generate and evaluate solutions through private ordering, regulation, litigation and other strategies; more sustained occasions to reflect on the entire enterprise of law and legal studies, the assumptions and methods of contemporary U.S. law and the perspectives provided by other disciplines, and to develop a common fund of ideas and approaches relevant to designing effective and just laws and institutions."

Again, this sounds a lot like new governance theory – a shift away from a narrow focus on adversarial legalism to a broader study of the entirety of the legal process, a deeper understanding of public management techniques, and the many techniques through which private and public institutions can be designed to better solve problems efficiently and legitimately.

Posted by Orly Lobel on November 22, 2006 at 11:31 PM in Orly Lobel | Permalink


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I think its fantastic that people committed to scholarship are also turning their hands to curricular reform. I am a great admirer of Martha Minow, who is so thoughtful, and I have no doubt that you will be a great contribution to this as well. I wonder what additional insights a person who has not been forced through the first year curriculum and having some international perspective (such as yourself) would have on that question.

I think that a course devoted to problem solving and synthesis is a great idea. I am not sure from your post what exactly it has to do with "new governance." It sounds similar to me to a course that is or used to be taught by Paul Brest at Stanford. And it's very similar to what my colleagues and I are trying to do with our Wal-Mart course here at Connecticut.

One of the problems of such a problem-oriented course is that the gear up time is enormous, whereas courses such as civ pro, torts, etc. all have a more or less settled curriculum that is relatively easy to teach. I wonder who will invest the time to come up with a really fantastic problems course in an era when scholarly production is at such a premium.

Finally, I wonder what your thoughts are on having professional responsibility as part of the first year curriculum, since its the only mandatory course required by the ABA that is not part of that curriculum, and I think it suffers as a result. That said, there is a limit to how much you can stick in the first year.

Posted by: ADL | Nov 28, 2006 11:23:11 AM

While I don't have a strong position on curricular reform, I would like to share an observation about the changes underway at Vanderbilt. Setting aside the merits of Dean Rubin's plan (and I do have substantive concerns), he has gone about implementing his version of what a law school should be like without any consideration of the existing culture at Vanderbilt.

Specifically, Vanderbilt has for years prided itself on hiring faculty who, in addition to be top notch scholars, were also oustanding teachers. This strategy contributed greatly to my experience at the school. Rubin's approach has been to disregard what made Vanderbilt unique in order to pump up the school's reputation (and to reap the benefits that would presumably accrue to the school's USN&WR ranking). This means undertaking a radical overhaul of the curriculum and pushing faculty to concentrate solely on scholarship while devoting as little time to teaching as possible. Lest you think this implausible, Rubin tacitly admitted as much to students in a town hall last spring. While I'm not too optimistic about the near term prospects for Vanderbilt, I hope other deans will take a more sensative approach to restructuring their law schools.

Posted by: 2006 Vandy Grad | Nov 27, 2006 8:08:19 PM

Actually, it sounds a lot like the Legal Process course that Henry Hart and Albert Sacks famously taught at Harvard in the 1950s and 1960s. Glad to see that Harvard is being innnovative in an Eisenhower-era sort of way. (I've been reading some old articles on curricular reform, and apparently the focus on international law was also a big deal in the 50s.)

Posted by: Orin Kerr | Nov 23, 2006 1:50:02 AM

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