Monday, August 03, 2009

Some Thoughts at the Start of Curriculum Reform Season in American Law Schools

As Summer wanes and American Law Schools begin their preparations for another academic year, curriculum reform remains very much in the air. In particular, the shape and character of first year legal education appears to continue to elicit concern. Faculties worry about the goals should be achieved by the 1-L curriculum, the construction of ideal curricula, the extent of curricular control by faculty rather than students, and a significant concern about measurement--of strengths, weakness, comparative advantage, satisfaction, and the like. For these purposes faculties tend to like to consider changes in legal practice and in the way in which students use their law degree, curricular innovations adopted by other schools, and the curricula of schools against which an individual faculty prefers to benchmark. Indeed, with respect to this issue, the law school academic trade association, the Association of American Law Schools Curriculum Committee, maintains an Overview of Curricular Innovations Survey, including innovations, "starter documents" (fairness, ethics, justice, globalization), and eventually additional resources. Faculties worry about elective courses in the first year--whether there are too few, too many, ought to be none at all, and how carefully controlled the "elective experience" ought to be.

I have written about issues in curriculum reform, especiually as they touch on matters of internationalizing that curriculum. See Larry Catá Backer, Parallel Tracks? Internationalizing the American Law School Curriculum in Light of the Principles in the Carnegie Foundation's 'Educating Lawyers'. Comparative Perspectives on Law and Justice, Vol. 3. My purpose here is to engage, very lightly, on some of these issues, and suggest some of the approaches that might become or remain influential during this academic season's engagement with the issue of improving curricula.

General Observations: The character of a law school curriculum tends to serve as a window into the character of the institution itself, and its sense of place among its peers. It is my sense that we now have an opportunity to energetically join our peers at the highest levels of American legal education, while allowing ample space for the very necessary education and training of those who serve all communities requiring legal services. The current curriculum tends towards the production of a singular type of lawyer with an excess of rigidity serving a singular set of increasingly local communities. Our training mission is broader than that. We produce traditional lawyers that serve the region, lawyers that serve emerging markets in larger cities, and lawyers expected to participate and shape changes in law and lawyering in the coming generations. At the same time, we serve other communities, from legally trained members of civil society, to those who look as law as a component of an interdisciplinary set of studies. Increasingly, we serve an international community of students at the J.D. and soon the post J.D. level. We made great strides toward a modern curriculum with our last set of reforms. But, further change is necessary in these dynamic times, especially in light of changes to faculty composition and aggregate faculty talents and interests.

Change is unsettling. But from an acceptance of the notion that law schools now serve increasingly varied markets should come a realization that change is inevitable. But change ought not to be reduced to a process of discarding the old. Rather, the ancient traditions that have produced and will continue to produce in the future large numbers of extraordinary lawyers ought to be reconstituted to suit the realities of changes in law as theory and as practice. Law schools serve a variety of markets that were on the fringes even a decade ago. The profession has expanded its scope and grown more flexible and dynamic. The needs generated thereby ought to be accommodated as well. Whatever its form, the most successful set of innovations will likely be those that avoid a narrow, rigid and singular view of the sort of graduate law schools produce.

Short explanation of a sensible approach to curriculum reform:

A. First Year Program. “Like the practice of law at the highest level, our curriculum is global, interdisciplinary, and rigorously practical.” Columbia Law School, Our Curriculum. First year programs range from wholly mandatory (Ohio State) to minimally compulsory with substantial integration between first year and other students (UC Berkeley). Whichever approach is chosen, it seems sensible to design its contents with the goal of providing the entering student with a related set of introductory materials grounded in only two sets of pedagogical goals. The first is to introduce the student to fields of substantive law. The second is to introduce the student to the variety of law frameworks she will encounter. The overall goal is to provide the student with a range of experience of legal contexts in which substantive law is realized: traditional case law and case law analysis (torts); statutory law and analysis (criminal law); modern hybridity through rulemaking statutes and case law (civil procedure) or statute (property); higher law (constitutional law); and law beyond the state (transnational law). Thus, for example, torts might be taught to acquaint the student with a field of law (personal wrongs) and a legal methodology (elaboration of legal rules and standards in cases, what is left, in effect, of the ancient common law). A first year student, then, ought to be exposed as much to the distinct methods and frameworks through which regulation is effected (common law, statutory systems, rule based systems, hybrids, etc,.), as to mastery of selected fields of law (torts, contracts, etc.). Both are necessary foundations for later work.

In this regard, it might be useful to consider the well reasoned policy objectives approach to reforms adopted in 2006 by the Harvard Law School. See,

* greater attention to statutes and regulations;
* introduction to the institutions and processes of public law;
* systematic attention to international and comparative law and economic systems;
* opportunities for students to address alone and in teams complex, fact-intensive problems as they arise in the world (rather than digested into legal doctrines in appellate opinions) and to generate and evaluate solutions through private ordering, regulation, litigation and other strategies;
* more sustained occasions to reflect on the entire enterprise of law and legal studies, the assumptions and methods of contemporary U.S. law and the perspectives provided by other disciplines, and to develop a common fund of ideas and approaches relevant to designing effective and just laws and institutions.
HLS Faculty Unanimously Approves First Year Curriculum Reform. For a criticism of this approach on somewhat narrow grounds, see Lloyd de Vries, How Not to Fix a Law School: Legal Analyst Andrew Cohen Schools Still Aren’t Preparing Lawyers for the Real World, CBS News, Nov. 10, 2009, (the difficulty here, of course, is Mr. Cohen’s view that law schools, like some sort of single purpose machine, is tasked with the production of a very specific sort of graduate). Michigan, on the other hand, continues to tilt toward a more traditional approach “to keep the first year students together in groups of about 90,” and to socialize students in “one of the experiences shared by almost all lawyers.” The University of Michigan Law School Course Descriptions. Washington & Lee Law School shares a similar rationale. “Everyone takes the same first-year courses, creating a shared intellectual experience and a true sense of collaboration that carry throughout the years at W&L.” About the J.D. Program at Washington & Lee.

In addition to an introduction to forms of law and fields of substantive law associated with these distinct forms of law production and application, the first year ought to introduce students to forms of communication appropriate for lawyers. Just as Roman jurists studied rhetoric, American law students ought to be able to develop a facility for written and oral persuasive communication. They ought also to cultivate a talent to research, not merely a facility for uncovering law, but for uncovering those facts essential for legal analysis. It is in this respect, of course, that the recent Carnegie Report made the most sense. In this respect it might be useful to consider Indian Bloomington’s approach adopted last year:

Beginning in the spring of 2008, first-year law students began taking The Legal Profession, an innovative new course on the economics and values of the profession. This course was inspired by the 2007 Carnegie report, one of the most important studies on legal education in decades. Team-taught by professors and professionals, this 4-credit-hour course immerses students in the true complexities of lawyering, overturning myths and preconceptions.

Indiana University—Bloomington, The Difference: A First Year Foundation. Training students to be competent lawyers, rather than competent students, is a more worthy goal. But persuasive communication grounded in competent research is no longer limited to the research memo and legal memoranda of the traditional domestic law office. Writing persuasive letters to regulators, to clients, to opposing counsel, to legislators, and the like is also important. As law graduates assume more varied roles, the sort of writing and research they are training in ought to change as well. Consequently, an integrated two year six or eight credit course ought to be considered for this purpose.

B. First Year Elective. The faculty might be guided by a pedagogical preference increasingly embraced by top tier schools to retain in the first year a flexible menu of broadening options for students. The idea here is that since one size fits all education is no longer consistent with the increasingly diverse markets top tier schools serve, then it is important to open the first year courses to a limited and carefully chosen menu of courses designed to broaden the exposure of law students to diverse areas of law that accords with the interests of students. A difficulty with the current design of the program is the sense of the serendipity of the courses offered. One, criminal procedure, is likely inappropriate as an elective, being better suited for teaching as a general upper level course. But beyond that, the is little holding the offerings together. A more useful approach, perhaps, would be for the offering of courses that might serve a foundational purpose for upper level study in conventional law fields or for deeper analysis of particular issues of law. Transnational law, jurisprudence, critical race theory, gender and the law, legal history, statutory interpretation, and similar courses might be suitable.

Other schools provide alternatives to this model worth considering. At Columbia, elective courses included Critical Legal Thought, Foundations of the Regulatory State, Law and Contemporary Society, Law and Economics, Law and Social Science, Law, Culture, and Notions of Justice, Lawyering Across Multiple Legal Orders, Legislation, Principles of Intellectual Property, Regulation: Decentralization and Globalization. Columbia Law School, First Year Courses, First Year Curriculum. At least one school, the University of California Berkeley, there are no segregated first year electives. See University of California, Berkeley Law School, First Year Curriculum. That is the practice at Michigan as well, though there, a specific list of upper level courses are selected for use as a first year elective. See The University of Michigan Law School Course Descriptions.

C. Upper Level Curriculum. The academy tends to oscillate between an upper level curriculum that is bereft of mandatory course and those that evidence a compulsion to control all aspects of education in the second and third years of study. But the problem with compulsion is that the assumptions underlying it may be false or falsely applied to a number of students. Thus, for example, it is possible to conceive of a mandatory curriculum based on the ideal of the well trained general litigator, but such a mandatory curriculum will be of less value to a transactional lawyer, and even less for someone interested in civil society work. More useful would be the development of paths to competence that might serve to guide student choices. Some of the old certificate programs used to serve that function, but that approach has been abandoned by some faculties, and may not be appropriate in all practice areas. Another approach would task the Curriculum committee with the development of model programs of study that focus on different interests—property, commercial law, litigation, international, public service, banking, transactional, and the like. A useful model, perhaps, is that of Indiana—Bloomington and their “areas of focus.” See Indiana—Bloomington, Areas of Focus. Others have adopted similar approaches. See Ohio State University, Areas of Study.

More importantly, perhaps, at the upper levels, curriculum is more closely tied to appointments and depth of resources. It might be useful to aim eventually to achieve a range and diversity of faculty, as a result of which “students benefit from a curriculum that can adjust quickly to changes in the legal profession and the world. In recent years, for example, HLS has enhanced its offerings in terrorism, corporate responsibility, and Islamic law.” Harvard Law School, Courses. But law school faculty mobility cuts in many ways, some of which can affect the durability of reforms. See, Clayton Gillette, “Law School Faculty as Free Agents,” 17 J. Contemp. Leg. Issues 213 (2008). Beyond the complexities of fluidity in hiring, and thus in faculty resources, Curriculum planning . . . takes place in a world of restraints and costs. Despite the obviousness of this point, it has received little attention.” John C. Weistart, “The Law School Curriculum: The Process of Reform,” 1987 Duke Law Journal 317-314 (April 1987). Nimbleness in curricular design, an ability to respond to market, grounded in a firm foundation in the foundations of the approaches through which regulation is effected in the United States or other jurisdictions might well be the most important innovation to any curriculum.

D. The Process of Curricular Reform. Beyond the traditional approach to curriculum reform, based on faculty committee study, the production of a report and, after discussion, faculty voting to adopt or reject the proposals, law schools have begun more intensive engagements with reform and the reform process. Instructive was the process used for reform at Vanderbilt Law School in 2005. See Vanderbilt Law School’s Curricular Reform Initiative (2006). That approach was both provided an institutional basis for reform and individual flexibility. It involved a multi day retreat, the development of new courses by faculty, and faculty approval of proposed revisions. But these forms of experimentation can be expensive.
Once these plans were approved by the Dean, the faculty member or members who proposed it were offered teaching relief, generally for one semester, so that they could develop the course and create materials for it without taking time away from their research activities. To replace the courses that were not being taught by these faculty members, visitors were hired with the funds provided by the University.
Id. Likewise, Washington & Lee’s new and much touted experimental program to redesign the third year involves substantial resources. “The new third-year curriculum, approved unanimously by the Law School faculty, will be entirely experiential in nature. Traditional classroom instruction will be replaced by practice simulations, real-client interactions and the development of law practice skills. All third year students will be required to obtain a Virginia practice certificate and participate in at least one real-client experience during the year.” Washington & Lee School of Law Announces Dramatic Third Year Reform. On the other hand, Washington and Lee offers little flexibility in their first year classes. “All first year courses are required, to give you a broad perspective of legal issues: American Public Law Process, Civil Procedure I and II, Criminal Law, Contracts, Property, Torts and Transnational Law.” About the J.D. Program at Washington & Lee.

The best approach, then, might be one that mimics the dynamic nature of law and its markets for law students. A faculty that is willing to constantly renew its curriculum, even in small ways, and to communicate those reviews and resulting changes to its stakeholders—students, lawyers, judges, community, etc.—is likely one better able to meet the needs of students, and the markets for lawyers and law school graduates, than others.

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