Chatting with colleagues across the American legal academy over these past several months, has revealed that in many institutions, the focus of curriculum reform is on the first year or 1-L curriculum. It is possible to describe three broadly defined approaches to the construction of a 1-L curriculum that nicely illustrates the way status differences among law schools may be implemented in the form of distinct approaches to curriculum. The Conventional Approach is animated by a traditionalist principle; the 1-L curriculum should be composed entirely of required courses in the substantive areas traditionally taught in the first year. Courses drive this curricular approach, and justifications beyond tradition follow. The Limited Flex Approach is driven by the principle of controlled variety: the 1-L curriculum should include one or more elective options in addition to required courses in the substantive areas traditionally taught in the first year. With this approach traditional courses drive the curriculum but spaces are made available to a limited range of alternative offerings. Yet lacking legitimacy in tradition, some or all possible emerging courses contending for a place within the canon of mandatory courses. Lastly, the Objectives Based Approach inverts the traditional approaches. It starts with objectives and then seeks to find courses that fulfill those objectives irrespective of their prior privileged place within the curricular canon. Applying an objectives principle, the approach incorporates the idea that an appropriate 1-L curriculum ought to be judged by its ability to teach students particular approaches to law rather than a collection of specific substantive fields.
An elaboration of these approaches suggests both their contours and limitations. It suggests that even the most conventional curricular approaches involves a choice that can have effects beyond curriculum.
I. Conventional Approach.
It is relatively easy to generate a typical form of conventional first year curriculum using this approach. It builds on principles and understandings that have been closely guarded by faculties seeking to retain the form of model approaches popular a generation or more ago. It is not merely a conventional approach, but one that permits significant ties to local communities and can leverage off a century's worth of pedagogy. It is, in this sense, the most inexpensive and thoughtless of the variations, that is a variation requiring little thought. It is also the most likely to produce something acceptable to the greatest number of people. It might be usefully referred to as the "good enough" or "respectable" (in a Babbitt kind of sense) approach; both worthy and well worn.
A typical application of this approach might include a set of offerings familiar t all lawyers: Civil Procedure (3-6 credits); Torts (3-4 credits); Criminal Law (3-4 credits); Writing, Research Program (3/4 Plus 3/4 credits); Contracts (4-6 credits); Property (4-5 credits); Constitutional Law (4 credits or 3 Plus 3 credits).
One could, of course, substitute a number of other courses for some of those listed and vary the allotted credits. The end product would still look substantially similar to the usual conventional course of study common among "middle class" law schools. Thus, for example, it might be possible to allocate fewer credits to the "legal practice" course, add or substitute courses in Sales or Criminal Procedure, increase the number of credits allocated to Civil Procedure and extend the course over two semesters (something quite common before the 1990s), or nod to changes in contemporary law by adding "special" courses in Statutory/Regulatory Interpretation (an effort with a spotty track record i many schools over the last twenty years or so), and, of course, the course in some sort of International/Transnational/Comparative Law hybrid.
III. Flexible Approach
An important recent variant of the conventional program of 1-L instruction, increasingly popular with this generation of law faculty offers more flexibility. This provides a nod both to the realities of legal practice and the increasingly dispersed interests of law faculty. Flexibility is built into the program by reducing the number of required 1-L courses and permitting student choice among other offerings. Further variation is possible by either contracting a separate stable of exclusively 1-L electives (this tends to tax faculty resources) or designating one or more upper level courses as suitable for 1-L elective enrollment. Sometimes, the list of eligible courses are limited to "core courses" as such things are understood within the culture and reference frame of a particular faculty. Sometimes the opposite is true--eligible courses include everything but core courses.
These considerations raise of number of issues that tend to serve as barriers to adoption of flexible programs of this kind, or at least they tend to raise the transaction costs of adoption and the administrative costs of running programs like this. These issues, in turn, suggest the reasons that this variant tends to be a "rich school's" program. It also suggests a marker that separates schools fearful that variation in curriculum will adversely affect employment markers for their students, from those with reputations sufficiently well established so that such flexibility will be read as enrichment rather than dissipation of resources. As such, ability to indulge these sorts of programs can be said to be a proxy for approximate position within academic status hierarchies.
Issues raised include; (1) the politics of designating "core courses"; (2) grading; (3) issues of administrative convenience--everything from registration to decisions about course offerings; (4) work load equity and other fairness issues; and (5) resource issues--some faculties have neither have the number of faculty required, nor a sufficient number of faculty qualified to provide a rich and constant offering of these course.
IV. Objectives Based Approach
This approach is quite new and suggests a rethinking of the curriculum in terms of objectives. Those objectives, in turn tend to represent the end product of a hard look at the reality of law practice at the highest levels and its ramifications for the production of law graduates able to operate at any level of `practice. The starting point for this approach are objectives. That is, courses are valuable to the extent they serve the overarching objectives of 1-L legal education. Those objectives, in turn, reflect the sort of legal work that attorneys are now likely to encounter. For many faculties unable to undertake this sort of analysis on their own, or those others that need the validation of "pack leaders", there are the programs being developed at high tier or academically vetted "progress leaders." Among these are the usual suspects, for example, Harvard Law School or the University of California--Irvine tend to provide comfort or validation, but other elite schools with benchmark leader reputations (that is those that non leader faculties might safely follow) will do as well.
Among pedagogical objectives sometimes privileged in this analysis are procedural analysis; common law analysis; statutory analysis; constitutional analysis; and legal research and writing. For more sophisticated faculties, international/transnational systems and analysis are also sometimes included. The latter, depending on the experience and abilities of the faculty might constitute either its own separate objective category or be deemed "immanent"--that is to be folded into other objectives to the best ability of those assigned that task. Additional objectives can include: problem solving; private ordering systems; governmental regulation of private relationships; criminal wrongs; written forms of analysis; interpretation of positive law; interdisciplinary analysis; professional Responsibility; constitutional limits on investigation and prosecution of criminal cases; written and oral communication; practical skills; client communication; multicultural competence; values.; experiential learning; and interpersonal skills.
One can see how easy it might be to get carried away--a constant danger among faculties trained in that art form. The process comes full circle in some places where included among these objective based curriculum design programs are things like bar passage, sometimes thought to be the animating objective underlying the Conventional Approach. More interesting still, though is the possibility that an objectives based approach might be used to mask traditional faculty disputes about course ordering. The larger and vaguer the objectives, of course, the more likely that virtually any course or no course will fit the bill. Thus this approach might reduce itself to anarchy or to a cloak over the reaffirmation of more traditional curricula. For all that, I remain a fan, in appropriate circumstances and within appropriately constituted faculties. See, Larry Catá Backer, Some Thoughts at the Start of Curriculum Reform Season in American Law Schools, Law at the End of the Day, Aug. 3, 2009. Yet, the Objectives Based Approach is not for all faculties, nor for all Law Schools. The choice is as much a proxy for status, and therefore repetitional horizon as are LSAT and GPA scores of students or some third party ranking system.
But then, that is my fundamental point. Legal education is fracturing along "class" lines. Elite schools will have the greatest opportunity to develop and implement new programs without sanction. Other schools with fewer resources will have trouble catching up. And eventually it may be possible to segregate schools as much by the curriculum they (have the means to) adopt as by any other marker. And as law schools fracture in this way, the opportunities for students and faculties to participate in the life of the law--as lawyers, academics, and policy, or to serve in the judiciary or government, will also fracture. In ways that are informally true enough today but will be more explicit in the future, the choice of a law school to study or teach will also increasingly serve to define the parameters (and limits) of a career.