Where Legal Education Needs Reform (and Where It Doesn't)
The New York Times has been on a rant all year against legal education, the latest an attack on the gap between what is taught in law school and the skills first year associates need to have in order to practice. Front and center is a group of first year associates at a prominent Philadelphia firm who apparently did not know how to file merger papers.
Criticism like this is silly. My colleague Dan Farber pointed out that it only took him a few seconds on Google to figure out the formal details to file merger papers. The harder thing, which I think is taught in the best law schools, is the economic and legal dynamics of a deal: what terms are more important than others, where ambiguity is or is not helpful, what different clients need.
The NYT apparently thinks that more clinical education is required. I think this is unsuited to law schools (though it may make sense for an education in medicine). I cannot even imagine how it would work: law schools would have to create law firms (that would compete with the firms of its graduates), so that professors could practice law and have law students watch and participate. Law schools would charge high billable rates so they could pay for the labor-intensive and small faculty-student ratios required to teach in a clinical setting. Imagine the ideological bias that would dictate the operations of these law school-firms–it's no secret that the clinical programs that already exist at many schools are directed to the agenda of the left.
That is not to say that there are no problems with legal education. However, the problems are not with the method of teaching, but with the subjects of required classes. First year law students mainly focus on classic common law cases–in contract, torts, property, and criminal law, among others–in subjects that have not changed in decades. These are cases where judges have the power to "make the law" and the main method is using human reason to arrive at a correct result. The world, however, is increasingly dominated by statutes and regulations, where careful reading of texts passed by legislatures and administrative agencies is just as important as reasoning one's way to the "right" answer. Lectures on bargaining theory and negotiation could help in classes on contracts and on criminal law. Moreover, economics should become a more important feature in many classes, as it already has become in legal scholarship.
Legal education in the U.S. is not perfect, but it is a better model than the alternatives, and it is the envy of other countries. Japan and Korea, for example, recently reformed their legal education systems and adopted the U.S. law school model over those in Europe and Latin America.
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Re: Where Legal Education Needs Reform (and Where It Doesn't)
Some schools do have both. My third year of law school I earned credits for being part of the "civil law clinic." The state of Delaware passed a statute allowing us to represent clients for free under the direction of a professor.
I drafted some tax returns for elderly clients, but more exciting was that I actually got to try a case in landlord/tenant court. It was the real deal - no moot court in a classroom.
I have to admit I found it beneficial.
May '10
Re: Where Legal Education Needs Reform (and Where It Doesn't)
I think that law schools should "teach to the test" for the first two years- lots of contracts, torts, con, crim, property, estates, trusts, etc. And let them know that the amount of time spent digging in books and papers compared with courtroom action is at least 200:1 out in real life. That helps weed out the Michelle Obamas of the world.
Then do all that blue sky stuff in year 3, instead of almost three years of navel-gazing, followed by a frantic few months of concentrated BarBri cramming.
Oct '11
Re: Where Legal Education Needs Reform (and Where It Doesn't)
When I was in law school I took a semester long clinic. For me it wasn't very helpful, since I'd worked in the real world for some time before law school. But for those students who went straight from undergrad and had meaningless summer jobs, it was their first chance to handle responsibility and realize the struggles that come from dealing with people rather than books. I'm not sure if it's the most efficient way, but if the alternative is Gender and the Law, I'd say it wins out.
As for the agenda of the left - if you run a public interest clinic, it just kind of works out that way. We had far more cases than we could handle, so when selecting cases, we considered how challenging the case was, what areas of law were involved (for purposes of getting diverse exposure), and how long the case would take. The students had the final say, and the faculty was open to taking interesting cases that we brought forward. I don't remember ever taking a case over another due to "social justice".
Oct '11
Re: Where Legal Education Needs Reform (and Where It Doesn't)
Duane Oyen:
Then do all that blue sky stuff in year 3, instead of almost three years of navel-gazing, followed by a frantic few months of concentrated BarBri cramming.
That's right, and it'd be nice if they could waive that third year or at least substitute it with an apprentice position. Considering the joke classes and pass/fails most students take that last year, they would be better off making it an LLM for those who want to put in effort.
May '11
Re: Where Legal Education Needs Reform (and Where It Doesn't)
Having graduated law school many years ago, and having watched my sister go thru medical school, I will admit that I do see some benefit, especially in law schools that will graduate a number of individuals who will go into solo/small firm practice, to having a residency type of education that teaches the nuts and bolts of actual practice (i.e. Here is the courthouse. This is what you need when you file a Complaint. etc.) Not every law school graduate is lucky enough to go into a situation where they have a great legal secretary/paralegal, who knows the answers to the nuts and bolts questions.
Oct '10
Re: Where Legal Education Needs Reform (and Where It Doesn't)
Is it possible to graduate without having wrestled with the questions of 'What is law?' and 'What is justice?' - and lost?
Mar '11
Re: Where Legal Education Needs Reform (and Where It Doesn't)
I once started a thread here on Ricochet in which I revealed that I was considering entry into a law office study program (apprenticeship) which one can still do in California, and the responses I got from some of the lawyers here were remarkable in their hostility towards the concept. If you pass the bar, you pass the bar, right? Every professional benefits from experience on the job, I doubt that an apprenticed attorney is any worse than an expensively educated one, assuming they share equal mental capacity and aptitudes.
Jul '10
Re: Where Legal Education Needs Reform (and Where It Doesn't)
The whole practice strikes me as a guild. I think it aught to go back to the apprenticeship program as it was until the late 19th Century. But then, that would cut down on the number of lawyers, and the whole money making machine that is the law school industry. We can't have that, can we?
Oct '11
Re: Where Legal Education Needs Reform (and Where It Doesn't)
How about the English system? To be a solicitor does 3 years undergrad common law study. Then one does a 1 year practical skills course (teaches how to file claims, etc). Then one does a two year training contract with a law firm. The pay is low (about $45k-$50k per year at the best London firms). Only after this training contract does a person become a full fledged solicitor. For those already with an undergraduate degree in something else, there is a one year crash course on the common law followed by the practical and training contract. Since English BA's are 3 years, it still takes 7 years to be a solicitor as it does in the US, but 2 of those years are paid. And if you are lucky, you can the firm to pay the practical year or even the crash course too.
Nov '11
Re: Where Legal Education Needs Reform (and Where It Doesn't)
Every course taught in law school should be geared towards practicality and real world practice along with learning the definitional theory. The fact that there is only 1 test per semester is non-sense and there should be a more substantial display of one's knowledge to differentiate between students.
The fact that law schools don't have an interview process blows my mind. ALL you do is advocate for clients and use communication skills/problem solving skills in the overwhelming majority of law.
These two facets along with making a couple trial skills courses mandatory & being on the quarterly system would make legal education much better. Of course this requires more work from both the faculty & students and who is actually concerned with educating people anymore? All they want is their 120k for your piece of paper so 64% of people (according to the ABA 2010 stats) can actually end working in the legal market. This doesn't even include the people with temporary / crap doc review jobs.
My advice would be don't go into law unless you are passionate about it. Because you will end up teaching yourself 90% of everything you learn.
Re: Where Legal Education Needs Reform (and Where It Doesn't)
No one wants to reduce the number of lawyers more than lawyers.
The generation before me could hang out a shingle and money cases lined up outside the door. No longer.
In New Jersey, I'm competing against 80,000 licensed lawyers, 40,000 of whom reside here. 1 out of every 200 people living here is a lawyer.
McDonalds couldn't survive if they put 40,000 stores here.
What caused the huge numbers? There was an affirmative action push, the response to which was to make the bar exam easier to pass. At one time far less than half of first time takers passed the bar. Now over 90% pass.