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Tuesday, March 02, 2010

Law School and the Bar Exam: A Snapshot from 1898

My thanks to Dan and the rest of the Prawfsblawg community for the invitation to join the conversation this month as a guest blogger.  As an initial foray into the prawfsblawgosphere, I thought I would follow Colin’s lead and offer a couple of quick observations on the changing character of the law school curriculum. 

Recently, I found myself wondering how the curriculum at Syracuse has changed since its early days . . . So I asked one of our superb reference librarians to help me track down the college’s course offerings during its early years.  As it turns out, when Syracuse first transitioned from a two-year curriculum to a three-year law curriculum in 1898, it offered the following one-size-fits-all course package:  

First semester: Contracts, Torts, Elementary Law, Personal Property, Bills and Notes, History and Philosophy of Law
Second semester: Contracts, Torts, Criminal Law, Personal Property, Domestic Relations, Bills and Notes, Legal Ethics 
Third semester: Criminal Law and Procedure, Real Property, Law of Evidence, Quasi Contracts, Agency, Civil Procedure at Common Law, Statute Law, Hypothetical Cases
Fourth semester: Sales and Warranty, Real Property, Law of Evidence, N.Y. Code of Civil Procedure, Partnership and Liens, Equity Jurisprudence, Roman Law, Hypothetical Cases
Fifth semester: Equity Jurisprudence, Trusts, Corporations, N.Y. Code of Civil Procedure, Bailments, Law of Negligence, Medical Jurisprudence, Moot Court 
Sixth semester: Wills and Administration, Trusts, Corporations, Insurance, Moot Court, Special Lectures (International Law-6 sessions, Patents-8 sessions, Trial of Actions-6 sessions, Searching and Examination of Titles-10 sessions).  

I expected to find significant substantive differences between my school’s current curriculum and the early curriculum, and (not surprisingly) there are some major differences.  The most glaring difference, to my eye, is the paucity of public-law subjects in the 1898 curriculum.  

No constitutional law.  No administrative law.  A mere six lecture sessions on international law.  Only one course devoted to “statute law,” and that course apparently focused on issues involving the statute of frauds and various statutes of limitations, not the legislative process or statutory interpretation more broadly--let alone the broad spectrum of regulatory courses that now make up the bread and butter of today’s upper-level law school curriculum.  (In contrast, Syracuse now requires students to take both Constitutional Law and Legislative Law and Policy in the first year, and a full half of our upper-level course offerings have a public-law emphasis.) 

At the same time, I was mildly surprised to find that few courses from the law school’s early days have fallen completely by the wayside.  True, some of the school’s original courses have been renamed, repackaged, expanded, condensed, or folded into others.  But virtually all of the subjects offered in 1898 continue to be taught in some form at Syracuse in 2010.  (The one glaring exception is “Searching and Examination of Titles,” but I suspect that few of our students will mourn its passing.)  

With some further snooping around, I discovered (again, perhaps not surprisingly) that our 1898 curriculum matched up almost perfectly with the bar examination of the same time period.  An 1899 NY/CT bar examination review book (yes, these existed before Barbri) covers essentially the same subjects as our 1898 curriculum: agency, bills and notes, carriers, constitutional law, contracts, corporations, criminal law, damages, equity, evidence, insurance, partnership, pleading, personal property, real property, quasi contracts, sales, torts, trusts, and the New York Code of Civil Procedure.  Indeed, an argument could be made that the old 1898 curriculum tracks the current bar examination subjects more closely than the standard curriculum in U.S. law schools today . . . that is, to the extent that most of us now limit the number of required courses, allowing students to opt out of most upper-level “bar courses” in favor of important electives in the public-law area (e.g., antitrust law, environmental law, federal courts).

Should we be concerned that the bar exam (at least in NY) continues to emphasize the same subjects tested a century ago to the neglect of new burgeoning fields of public law?   If the purpose of the bar examination (like a legal education) is to ensure the basic competency of lawyers to practice in the legal profession today--an environment characterized by pervasive global integration and administrative regulation--it seems self-evident to me that the exam should reflect the growth of public-law litigation over the past century, particularly in the fields of federal and state regulatory law, foreign relations law, and public international law.  Subjects such as administrative law, legislation, and international/transnational law are central to legal practice today, and they are beginning to make inroads into mandatory curriculum at a number of schools.  Perhaps it is time for the bar exam to join legal education in the twenty-first century rather than linger behind in the 1890s? 

Posted by Evan Criddle on March 2, 2010 at 05:57 PM in Teaching Law | Permalink


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I have to agree with the other commenters here that foreign relations law and public international law are irrelevant to the practice of law for all but a tiny subset of attorneys. What I was honestly struck by reading this list of courses is how rigorous it is, and how it would provide a superior grounding for a lawyer practicing today than the current law school curriculum. I understand a few of those courses would fall by the wayside or be combined nowadays (A full class on bailments seems excessive, but at the same time I can guarantee you that more students will deal with issues regarding bailments than they will issues of public international law). And some more classes should be added to reflect how the practice of law has changed...a class on (state and federal) administrative law with a focus on administrative procedure is important, as is tax, securities law, et cetera.

I have trouble imagining students complaining that a 3rd year in a program like this would be worthless. It seems that many law school classes are aimed at teaching their students to think not like lawyers but like law professors, and ignoring the simple fact that to effectively teach these subjects you need to be a lawyer and a law professor. The resultant classes are intellectually flabby and bear little resemblance to the law that the students will spend their career practicing. I'd suggest that the lesson of this post is not a suggestion that the bar exam be remodeled to fit what law professors teach, but rather a reminder of rigor that has faded from law school, and how law professors have a gross misconception of what the practice of law for their graduates will entail.

Posted by: AnonForever | Mar 5, 2010 1:12:59 PM

I echo the sentiment that foreign relations law and public international law are virtually irrelevant to most lawyers.

Federal and state regulatory law have grown more important in the practice of law. Subjects like tax, securities regulation, and the administrative part of employment law, for example, playing a powerful role in modern legal practice.

But, even among those lawyers who regularly deal with international cases, myself among them, foreign relations law and public international law matter very little. I frequently need to apply comparative law concepts and international tax law concepts, to even routine small and medium sized business cases. FSIA is sufficiently obscure to make the intricacies of the law of future interests, the law against perpetuities, the dead man's statute and imputed ownership of shares for tax law purposes seem like pervasively common matters by comparison. For the most part, foreign relations law and public international law have more relevance to political scientists and future diplomats than they do to lawyers, for whom tax, comparative law and private international law are where the action is.

Posted by: ohwilleke | Mar 4, 2010 7:21:04 PM

What I find interesting is that the 1898 1L curriculum included two classes that either are generally required of 1Ls or have been moved to the later years: History and Philosophy of Law and Legal Ethics. Law school does a poor job of educating acolytes about legal history, including the history of our profession that still informs many aspects of practice. And professional responsibility is practically an elective, since you can take it anytime during the last two years -- indeed, you can take it after you've taken and passed the MPRE.

Also, the 1898 curriculum offered procedural classes and moot court in the later years, unlike their current primacy in the 1L curriculum. Does that mean the faculty then thought you should get the substance first, then form (so to speak?) What would it hurt a 21st century 1L to wait and take procedure in the later years?

And how does the Syracuse curriculum line up with curricula in diploma states? That is, how different was Wisconsin from Syracuse during this period. The 1898 curriculum seems lined up with what I have read about the nature of law practice then -- mostly private, few public law issues because of limited government activity and laissez faire -- no Interstate Commerce Commission, etc. And perhaps constitutional issues were addressed within the substantive classes themselves?

Posted by: Hugh Brady | Mar 4, 2010 2:44:03 PM

I don't know that it ought to be on the bar exam (I don't have set opinions about that) but FSIA issues come up fairly often in cross-border business transactions, so there's some real value in having at least a basic knowledge of those rules for many lawyers working on, what is today, fairly common business deals.

Posted by: Matt | Mar 4, 2010 6:25:26 AM

Evan: I largely agree that students should have an understanding of legislative and regulatory processes. On the other hand, the bar exam is a finite resource. Assuming that we don't lengthen the exam to a week or a month, there are only so many subjects that can be tested. So if you add more subjects, what are you going to take out? The bar exam hasn't changed much over a 100 years, dare I say, because plain-vanilla legal work (as opposed to the elite work at AmLaw 100 firms that don't need bar exams to ensure competence) has not changed.

Posted by: TJ | Mar 3, 2010 2:01:53 PM

Matt: I'm afraid I don't know what the "Hypothetical Cases" course covered. All I have found is a cryptic reference to the course in an old archival document without any course description. I assume it represented an early effort to integrate doctrinal learning with practical skills, but your guess is as good as mine at this point.

Jason and TJ: I share your skepticism about the design of the current bar exam. In the interest of full disclosure, I teach Administrative Law and Public International Law, so some of this may be wishful thinking on my part. But I do think that no student should leave law school today without a solid grasp of the legislative and regulatory processes and at least a basic familiarity with certain issues in international and foreign relations law (e.g., sources of international law, principles of the law of treaties, FSIA, extraterritoriality).

Posted by: Evan Criddle | Mar 3, 2010 10:04:48 AM

I find it hard to believe that many lawyers would find a knowledge of "foreign relations law, and public international law" important to "practice in the legal profession today." The few elite lawyers who argue before the international court of justice, or write memos for OLC, have a client that presumably does not need a bar exam to ensure competency in its representation.

Posted by: TJ | Mar 2, 2010 11:42:42 PM

That's very interesting, Evan. Do you have any idea what the "Hypothetical Cases" class was about? (I mean, hypothetical cases, I guess, but what _that_ means isn't so clear to me.)

Posted by: Matt | Mar 2, 2010 8:19:29 PM

If you really believe that the bar exam is designed in a way that even remotely "ensure[s] the basic competency of lawyers to practice in the legal profession today," you have a rude awakening in store when you actually review any recent exam. The majority of states use BOTH the MBE (200 multiple-choice questions on 6 subjects, including criminal law as it existed under the Common Law of Crimes circa 1776, seriously!) AND the multi-state essay exam (6 incredibly poorly drafted essay exams on a range of topics that tend to focus on pointless minutiae instead of anything approaching "basic competency"). Some states, like mine (IL) add a few token state-law based essays on procedure or some such thing, but the bulk of the exam is really a silly game. This shameful state of affairs results from a combination of sloth by state bar commissions (cheers to Louisiana and other states that have not capitulated and abdicated their responsibility to the National Conference of Bar Examiners) and the venality of the NCBE and their "scientific" sleight of hand in hawking their exam products to the states. Adding topics to the bar exam is the very last thing anyone should be proposing, though I support your suggestions of greater competency in regulatory and international/transnational subjects.

Posted by: Jason Kilborn | Mar 2, 2010 7:24:59 PM

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