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.