Doesn't the debate about legal education feel like Groundhog Day? The NY Times ran an article this weekend from the ABA annual meeting in Dallas, and reading it reminded me of reading so many other articles criticizing law schools. Maybe it's because I'm one of the self-interested, sclerotic dinosaurs (a/k/a a tenured faculty member) who serve as boogeymen in the narrative about legal education, but I'm occasionally frustrated that a couple of things have been overlooked:
1. The legal profession seems to have forgotten that it was the elite organized bar (the ABA, the ABCNY, et al.) who lobbied vigorously in the 1920's and 30's to bring legal education within the university, both to improve quality and to associate the profession with the social prestige of the university. Now the profession is complaining that university education looks like . . . well, university education. Universities have their own norms, values, interests, and quirks. It's a lot of fun to poke fun at the culture of universities (see, e.g., David Lodge), but a lot of what seems inefficient and irrelevant from the perspective of practicing lawyers is directly related to one of the central value commitments of the academy, namely, free inquiry. The profession in the early part of the 20th Century recognized that moving from a trade school model of education to a requirement of a university degree would enhance the public image of the profession. Bar leaders and judges are always banging on about how lawyers should see themselves as part of a profession, not a mere business. I'm not necessarily endorsing that position, but notice the implicit appeal to an ideal of detachment, objectivity, and public-spiritedness, which are characteristics of a profession, not a business. Which institution do you think is better suited to inculcate the knowledge and dispositions appropriate to a profession -- the university or the practicing bar?
My response to Judge Harry Edwards's lament about the "growing detachment" between the profession and the academy has always been to celebrate that detachment as necessary for the very ideal the profession claims to be seeking in education. Yes, a lot of law review articles are a waste of time and paper, but that doesn't mean that all legal scholarship is useless. And I don't mean only traditional doctrinal scholarship, but interdisciplinary work as well. The obvious example is empirical scholarship that reveals how the legal system actually works, but law and humanities scholarship has an important role as well. Much of my own scholarship is pretty far from practically useful, but I have done many seminars and CLEs with practicing lawyers on theoretical legal ethics, and found lawyers often to be grateful for the opportunity to engage in reflection on the morality of their professional lives. For perfectly understandable reasons for-profit law firms and busy government legal departments do not set aside time for detached reflection. The university is the appropriate social institution to cultivate this practice. The history of legal educations shows that the profession values an education process that is in touch with the ideals of scholarship and professionalism. That shouldn't get lost in the reform of legal education.
2. Speaking of the disjunction between the academy and practice, the article quotes a retired partner at Williams and Connolly, teaching as an adjunct at GW, calling for the increased use of adjuncts. I tend to bristle a bit at the assumption that any experienced lawyer could be a good teacher, as though there is nothing to effective teaching beyond knowing the underlying subject matter. Some lawyers may be good teachers, but the skill sets involved in these two activities are distinct, if overlapping. Many lawyers who wish to serve as adjuncts may not have thought about issues such as: What is the right mix of providing information vs. engaging the students in discussion? Do you cold-call or take volunteers (and what are the pros and cons of each)? How do you balance responsiveness to student questions vs. the need to cover the material you assigned for the day? What do you think about PowerPoint and iClickers? A more subtle, but very important skill is breaking down something you understand completely and explaining it to someone who is coming to it for the first time. I've been teaching torts for 14 years and, believe me, understanding something like proximate cause or assumption of risk is very different from explaining it. Then there are all of the issues related to exams: How should they be structured (essay, multiple-choice, etc.), how broad or deep should the coverage be, what is the right blend of issue-spotting and analysis, how do you compare different answers for grading purposes, and so on. You get better at all of these things with experience, but it does not follow that experience at being a lawyer necessarily translates into being an effective teacher.
3. Having said this, I'm not opposed to reforming legal education. But like Lord Grantham in last night's episode of Downton Abbey, I'd prefer reform to be incremental, not radical.
The reform I’d be most favorably disposed toward would be modifying the third year, which almost everyone agrees is a waste of time in its current form. (I got married and got my pilot's license in my third year of law school -- both were great uses of my time, but not directly related to my legal education.)
Off the top of my head, I can think of several things one could do with the third year: (a) An externship/apprentice year, with students working in practice under the supervision of lawyers, with some overarching supervision provided by faculty from the school. CUNY/Queens and Northeastern already use this model. One problem with this model would be ensuring that employers actually help train students and do not simply abuse them as a cheap source of labor, as often happens with unpaid interns. (b) Practical or experiential training (trial practice, pretrial advocacy, drafting, negotiation, etc.) conducted within the school by full or part-time faculty. My old school, Washington and Lee (for which I retain a great deal of affection), has adopted this model with considerable fanfare, and it seems to be attracting a lot of applicants to the school. (c) A specialized classroom curriculum, alluded to by the Oregon dean in the NYT article, so that students could specialize in business, litigation, tax, criminal, or whatever. (d) Some blend of (a)-(c).
The NYT article does not mention an op-ed that ran a few weeks ago, by Dan Rodriguez and Samuel Estreicher, discussing a proposed change to admission standards in New York. The proposed New York rule would allow applicants to sit for the bar exam after two years of law school. If successful, they would be licensed to practice law, but would not have a law degree unless they completed their third year. If the rule is adopted, Rodriguez and Estreicher argue, law schools would be forced to demonstrate to students that the third year is relevant. But I think the burden of proof goes the other way: Employers and clients would need to be convinced that a law degree is irrelevant if someone has a bar card.
The proof of the pudding will always be in the eating, and the one thing that’s uncertain is how the profession as a whole would react to a law school’s adoption of a new curriculum model. Elite employers – both large private law firms and high-powered government offices (DOJ, SEC, Manhattan DA, U.S. Attorney’s offices in places like the SDNY, etc.) – have generally preferred graduates of highly ranked schools over graduates of schools that do more skills training, somewhat belying the claim that employers are chafing under the existing system. It may be the case, however, that clients are balking at paying the bills for training relatively raw graduates and are squeezing firms on their billing practices. The the profession wants to externalize the cost of practical training onto the academy.
To put it differently, practical training is something of a football that keeps getting kicked back and forth between the profession and the academy. The New York proposal cited in the Rodriguez/Estreicher op-ed has the virtue of letting the market sort things out. If employers really don't want to pay for practical training, they'll hire lots of graduates of W&L or CUNY. If, on the other hand, what employers really value is a credential, students will still have an incentive to seek admission to a school in the proverbial T14, regardless of what happens in the third year. It may be the case, of course, that the market will be differentiated, with some employers caring more about practical training than credentials, and vice-versa.