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Thursday, September 24, 2009

What's happening in legal education?

With the beginning of a new school year, and a new law professor hiring season, one might want to know the answer to this question. Specifically, I can imagine law-professor job candidates being asked the question: "Are you familiar with the Carnegie report on legal education, and how would it affect your approach to teaching?"  So I'd recommend you at least read the executive summary. Over at Concurring Opinions, Kathleen Boozang says that the report was greeted by a "big yawn" by most law professors, but she speculates that the collapse of the legal market could change that. 

A recent National Law Journal article quotes Rod Smolla, the dean of Washington and Lee and architect of its new Carnegie-esque third-year curriculum, as saying "we are at a moment of historical change in legal education...When we look back at this period in five to 10 years, we will mark it as the time when the whole mission of law schools made a fundamental turn."  In W and L's third year, students learn "substantive" areas like family law or employment law through real and simulated cases where students act as lawyers and try to solve problems, not by reading appellate opinions, taking notes in class, and mushing it all into an outline at the end for a 3-hour typing race. More students opted into the new curriculum than expected, and applications there were up 33% this past year, with a survey indicating that the new curriculum played a role in many students' decisions to go there. 

Meanwhile, Martha Minow, the new dean of Harvard Law School, where the Langdellian method of teaching from appellate opinions was developed, has called for "another case method" closer to the one used in business and public-policy schools, and consistent with W and L's approach and Carnegie. 

So will there be significant change or not much at all? My own view, for what it's worth, is that much depends on the success or failure of innovations like Washington and Lee's third-year curriculum, the more practice-oriented curriculum at Northwestern, and the new law school at UC-Irvine. If they succeed, I would imagine others will follow.  What do you think?

Posted by Jason Solomon on September 24, 2009 at 11:03 AM in Life of Law Schools | Permalink

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Comments

But what can be done in lieu of the exam? I'm on the market this year, and have a few ideas, but should I express that during AALS interviews/job process?

Posted by: anon | Sep 27, 2009 11:22:50 PM

Anon, I now use The Torts Process (Henderson et al) as my book, and couldn't agree more on 3-hr final -- thanks for the comments.

Posted by: Jason Solomon | Sep 27, 2009 1:38:15 PM

I think what professors need most be concerned with is the reality that 3hr exams at the end of a semester is a dumb way to test students on knowledge.

Posted by: anon | Sep 27, 2009 11:33:26 AM

Arthur, I had asked Profesor Solomon not to post the second comment once I realized I had misread your original claim, so consider the second comment withdrawn. Sorry.

Posted by: Brian | Sep 27, 2009 9:44:02 AM

Professor Solomon, which book do you use to teach Torts?

Posted by: anon | Sep 27, 2009 12:19:07 AM

Brian, how is Pritzker's introduction of skills in the first year related to my statement that medical schools spend 2/3 of the time after the first year teaching skills? Please explain how that information about the first year shows my statement to be a misrepresentation.

Posted by: Arthur | Sep 26, 2009 8:47:18 PM

It is probably worth noting that Arthur's misrepreentation of what goes on in medical education is belied by a typical first-year curriculum like this one:
http://pritzker.uchicago.edu/md/curriculum/courses/firstyear/

Allowing for the differences of discipline and practice, the 'clinical skills' sections each quarter are the analogue of the standard legal reserach & writing. No doubt if there were a legal analogue to taking the blood pressure and pulse of patients all law schools would teach it, but there isn't.

Posted by: Brian | Sep 26, 2009 8:34:07 PM

The "Socratic method" is a fraud, but that's not the issue. I suggest that anyone actually interested take a look at the Carnegie pablum. I stand by my description: "It was not produced by a distinguished group of legal scholars and educators, or by accomplished practitioners and jurists. It's a vaguely anti-intellectual document, apparently unaware that law schools are also research institutions, and is a mix of empty ethics pablum and familiar ideas for more 'practical' experiences." There are precious few authorities on education, but the Carnegie operation isn't among them: they are hit and miss, and have a deservedly mixed reputation among students of educational practices ('mixed' is probably a nice way to put it).

Posted by: Brian | Sep 26, 2009 8:30:16 PM

I second Arthur's response, and think Rick's argument has three additional problems, though I'm grateful for the comment, and think the Rick/Brian view is widespread in the academy.

First, it misrepresents the content of the Carnegie report and the W and L 3rd year curriculum. The Carnegie report doesn't call for more one-off "skills training" classes as the MacCrate report did. Rather, it calls for an approach to teaching our usual doctrinal classes by integrating doctrine, skills, and professionalism in a way that most of our courses (and books) do not. It means classes and course books that put students more in the role of lawyers, not appellate judges. It's a far more intellectually interesting approach than the way we teach most of the doctrinal classes (modified-Socratic dissection of appellate opinions, and lecture). There are books out there that do this. I use a version of this approach now in both 1L Torts and upper-level Employment Law, and it seems to work reasonably well.

Second, the empirical assumption that the Carnegie/W and L approach means less reflection and attentiveness to morality is false. Precisely the opposite: as excellent Legal Profession teachers know, putting students in the role of lawyers, and forcing them to confront real-world dilemmas in context, increases their reflectiveness and attentiveness to morality.

Third, Rick's argument has a serious baseline problem. Most students are spending most of their time 2L and 3L year taking regular doctrinal classes, not seminars where they read history, jurisprudence, or law and literature. Personally I'd love to be a law student at Notre Dame taking a seminar on Jurisprudence with John Finnis or Law and Religion with Rick Garnett, for example. And I hope many students continue to have this kind of experience. This is a real downside of a system like W and L's that seems to exclude such courses if you opt in.

But we really need to compare the Carnegie/W and L approach to the regular modified-Socratic/lecture appellate opinion classes that dominate students' experience at most law schools. One of the leading authorities on higher education in the world (Carnegie), after observing a lot of law school classrooms and thoughtfully comparing our approach to other forms of professional education (i.e. med school), confirmed what many of us know. For the vast majority of us who are not master Socratic teachers, there's a better way, and our students will learn more and be more effective lawyers.

If you email me offline, I'll tell you how I really feel. :)

Posted by: Jason Solomon | Sep 26, 2009 2:34:02 PM

Rick, medical schools spend 2/3 of the non-first-year curriculum teaching skills. Are they not worthy participants in universities?

Posted by: Arthur | Sep 26, 2009 12:56:47 PM

I am also uneasy about the rush, in some quarters, to sign on to the Carnegie report's (and others') "law school needs to be made more practical, and the current job market / economy confirms this" claim. It is possible (isn't it?) that part of the job of legal scholars (who enjoy tenure and other trappings of the academic life) to push students, and the bar, to resist the temptation to regard the practice of law as, well, just practice. It seems to me that lawyers *need* to be reflective, well read, historically sensitive, creative, and attentive to theory and morality -- whether they all realize this or not. Yes, of *course* it is unhealthy and offensive when law professors at elite (or other) schools disdain the on-the-ground realties of the profession, or the enterprise of actually doing law in the "real world." Let's put that disdain aside; no one really defends it. But do we really think that law schools would be worthy participants in universities if 1/2 of the non-first-year curriculum is given over to skills training? I'm not so sure. Some might say, "that's fine -- law schools *don't* need to be full participants in universities." Maybe that's the way things are going. But, I hope not.

Posted by: Rick Garnett | Sep 25, 2009 2:56:02 PM

If you were going to start a revolutionary legal skills program, why in gods name would you do it in Lexington, Va., home of one of the smallest adjunct pools in the country?

Posted by: JD | Sep 25, 2009 10:05:15 AM

Exactly why should the collapse of the legal market (i.e., the inevitable deflation of a bubble in associate leverage) catalyze change in legal education? Law firms have whined for years that law schools do not prepare students for practice (read: law firm partners do not want to bother mentoring disposable associates -- this reality is the yeast that leavened the Carnegie Report), their business model is then exposed as fatally flawed. Our conclusion is that the law schools must change?

Posted by: Patrick | Sep 25, 2009 4:46:22 AM

I would be astonished if any good law school asked a job candidate about the Carnegie Report. Why do you think anyone takes it seriously? It was not produced by a distinguished group of legal scholars and educators, or by accomplished practitioners and jurists. It's a vaguely anti-intellectual document, apparently unaware that law schools are also research institutions, and is a mix of empty ethics pablum and familiar ideas for more 'practical' experienceds. If it contains a recipe for helping students entering a difficult legal marketplace, it is well-hidden.

Posted by: Brian | Sep 24, 2009 2:01:38 PM

I've expressed opinions on this before, I believe even in comments on this blog. But I can't say enough that the "Carnegie-esque" hands-on approach is something I wish there was more of when I was in law school.

There is one professor at Wisconsin, David Schwartz, who begins the problem-based learning with the 1Ls. His Civil Procedure I class involves a simulated trial. The students are assigned as either plaintiffs or defendants and are required to do everything from writing a complaint or answer to drafting interrogatories and holding mock depositions. They then take the case to trial, of course also making pre- and post-trial motions.

The 1Ls are assisted by a group of 3L students who are acting as teaching assistants for credit. Those 3Ls do everything that the 1Ls do, but on a more advanced level. I had the advantage of being both one of Prof. Schwartz's 1Ls, and one of his 3L teaching assistants. The method made me really understand the FRCP, plus I got to practice legal writing and be involved in planning trial strategy. And (believe it or not), I saw the 1Ls having FUN with their law school experience.

I advocate for a full transition from appellate case review (except maybe in Constitutional Law, where it is really a necessity) to this more problem-based approach. How many studies do we need to say "we learn by doing" before we make the change?

Posted by: GJELblogger | Sep 24, 2009 1:56:39 PM

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