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Monday, August 27, 2007

What is the animating theory of the law School curriculum?

My post on changes in Civil Procedure (and the 1L curriculum generally) and Bill Araiza's post on the third year of law school brings up the obvious question -- what is the law school curriculum intended to achieve?

There are several schools of thought about what the first year of law school is all about.  The first is the "skills" thesis.  This is the idea that the goal of the first year of law school is to introduce students to the fundamental skills of the profession and that they can learn the substance later.  What type of things count?  There is room for reasonable disagreement, but I imagine its something like the ability to read a case closely, understanding theories of interpretation and types of legal reasoning and argumentation.  Under this theory, the substantive doctrine taught is less important than these fundamental skills.   A "skills" civil procedure class could include either personal jurisdiction or Erie, as both are complex doctrinal structures that have evolved through case law and teach basically the same skills set.  The class would also include some aspect of the federal rules that are more rules-based, such as pleadings (though that will be changing given the Supreme Court's recent decision last term in Twombly) or whatever strikes your fancy (discovery, summary judgment, post trial motions) to teach interpretation, statutory construction and close reading of rules.   

I'll call the second theory the "proficiency" thesis.  This is the idea that the goal of the first year is to inculturate students by teaching them fundamental doctrines and values on which will (1) build their understanding of the structure of the American legal system and (2) allow them to have educated conversations in a professional context.  This is the excuse I give my students for teaching Pennoyer. I tell them the story recounted by Linda Silberman of a homeless man who, to prove he was really a lawyer, recited the holding of Pennoyer v. Neff.    This type of civil procedure class would need to include both jurisdiction and Erie, for obvious reasons.

The 1L curriculum is a little bit of both - most of us want to teach basic skills and we think certain substantive doctrines or types of arguments or what have you are essential to a well rounded legal education.   I think people are more likely to disagree on the latter (what doctrines are essential?) than on the former.   As we think about this more deeply, I think we will find that what doctrines one thinks are essential are formed largely by one's own experience as a 1L.   But I was surprised to see in the comments to my last post some people who took the view that the purpose of 1L year is almost exclusively  skills-oriented.  I disagree.  What we teach is important, not only how we teach it.

Posted by Alexandra Lahav on August 27, 2007 at 11:42 AM in Life of Law Schools, Teaching Law | Permalink


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Like most things, the 1L curriculum is trying to do 4 or 5 things at once. Some courses are mostly about teaching skills (crim); some mostly about teaching some substantive areas (civ pro); all are there to satisfy the ABA and get students ready for the bar exam.

I do think the basic 1L curriculum hasn't changed in 100 years because it very usefully covers building blocks of later study. Torts is the basic background for insurance, accident, and other forms of liability law; Contracts for corporate law; Property for trusts and estates, land use, etc;; Crim for the areas of criminal law; and civ pro for civil practice and federal jurisdiction. Most of the upper level curriculum springs out of the common law background traditionally covered in the 1L year.

Of course, a lot of stuff you could get up to speed on pretty quickly, and our everyday experience suggests that most people forget most of a course a few months (or weeks?) after it's over. So it's possible that this rationale is overstated.

Posted by: Orin Kerr | Aug 27, 2007 12:42:49 PM

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