Specialization in legal education, like that in private legal practice, has become more pronounced. Law schools have responded to the specialization trend by instituting programs leading to the award of post-J.D. degrees, primarily the LL.M., and by providing for recognition of specialization as part of the J.D. course of study through certificate or concentration programs. American law schools have had at least a decade to get accustomed to the idea that legal practice has become increasingly specialized. Law schools, themselves, have not escaped the tendency towards hyper-specialization that has characterized the legal profession for at least a generation. It is not uncommon for law schools to divide their curricula by fields of practice in ways that mimic the private sector. Not only have law school faculties evolved to reflect specialization, but the approach to training law students has changed as well. Law schools confront the new reality of specialization, or risk producing students less well equipped to compete in this new work environment.
Law schools have responded to this reality of specialization in a variety of ways. One of the more successful responses to this trend has been the proliferation of post-J.D. programs in specialized fields. Another response has been the establishment of concentrations or the creation of certificate programs—programs of specialized study leading to a certificate or other document memorializing the successful completion of this program of specialized study. Boston University’s web site suggests that concentrating one’s studies in one of a number of specialized areas of law may provide law students with the necessary skills to stay ahead of rapidly changing regulatory environments. “By pursuing a concentration, students can engage in advanced, in-depth study with the leading scholars and practitioners in a specific field, without having to pursue an advanced degree. Students are then equipped with the specialized legal training and tools that can give them a powerful advantage in the marketplace” (http://www.bu.edu/law/jd/concentrations/; accessed May 17, 2006).
Certificate programs became more popular in the 1990s. Their popularity can be explained, in part by their flexibility. The programs are not directly regulated by the American Bar Association or other professional regulatory body. The certificate earned upon completion of a program is not a “degree,” like a J.D., or other traditional indicia of completion of an academic program, all of which are heavily regulated within legal academia. It has no formal institutional meaning other than set forth on its face. Nor is the meaning of a certificate universal. Its academic “weight” is highly contextual. As such, it is worth “less” than a degree. But this freedom from regulation of programs, and this “worthlessness” of the certificate itself, will be crucial factors in the ultimate proliferation of certificate programs. These characteristics result in programs that are easy to implement and require substantially less administrative expense than their direct competitors—the LL.M. programs. Though the LL.M. degree may be “worth” more—have more value as an academic credential—than a certificate added on to a J.D. degree, the cost of implementing and maintaining an LL.M. program will be substantially higher than the equivalent costs of a certificate program.
At schools with the necessary faculty resources and courses already in place, creation of such programs requires minimal modification to current practice—usually just adoption of a set of simple rules specifying the courses a student must successfully complete in order to obtain a certificate. Thus, in their simplest form, certificate programs are cost-effective means of providing academic guidance to students seeking some sort of specialized program of study. It has additional benefits. It provides a means of informing employers of the student’s specialization, and of regularizing the course of study leading to that specialization—at least within each law school. Certificate programs may also aid in recruitment of prospective students. Students may be drawn to an institution that provides specialized study, leading to a recognition of that specialization, especially if they have an interest in the areas of the specialization available. Even if this is not the case, a prospective law student may use certificate programs as a proxy for faculty quality in a particular area of law, or depth of faculty coverage in these areas. Both surmises work to the benefit of the recruiting law school offering the programs—and to the detriment of competitor institutions that fail to act. Ironically, certificate programs may also provide another long-term conventional benefit —they may serve to prepare an institution for a solid investment in an LL.M. program.
The decision to create a certificate program in any area of legal specialization may be a difficult one for a law school. Successfully designed and implemented certificate programs require a substantial amount of attention to detail to ensure that they complement a law school’s mission and appropriately deploy institutional resources. Successful certificate programs are those that manage to increase generally the quality of an institution and provide aggregate benefits to students and faculty greater than the costs of operation of the program over the long-term life of the institution.
Certificate programs will vary considerably in their scope and content. Every certificate program must conform to the nature of the field that is the subject of study. As a consequence, such programs can vary considerably in form and detail. At some level of generality, however, all certificate programs contain common elements. This “commonality” is a function of shared principles underlying the creation and implementation of these programs. An understanding of these underlying principles is critical to the creation of sound certificate programs. My purpose in this section is to draw out those general principles, with a view to applying these principles to Penn State’s Certificate Program in the section that follows.
1. Differences in form between programs should be minimized.—At least within any institution, minimizing variation in the form between certificate programs offered by that institution will increase the marginal utility of the programs as a whole.
There is pedagogical value in establishing a similarity of form among all certificate programs offered at a particular institution. An overall consistency among programs may reduce student confusion. It serves, as well, to decrease the likelihood that students will fail to fulfill the requirements of a particular certificate program. Overall macro-consistency may also reduce faculty confusion, or indifference to programs. Reduction of faculty confusion may encourage faculty to better counsel students seeking their advice. Reducing indifference may encourage faculty curiosity and the advancement of knowledge through conversations across disciplines. Lastly, basic similarity of organizational form may make it easier for certificate program directors to interact, from simple matters such as sharing information on administration and student concerns, to matters of substantial institutional advancement such as the creation of joint endeavors.
There are administrative advantages to macro-similarity as well. Program similarity may serve to reinforce the distinctive culture of an institution. Macro-uniformity makes it easier to structure and implement other programs of concentration. Each concentration can make use of a basic structure that experience has shown works successfully within the academic and administrative context of the institution in which the concentration is to be adopted. Thus, program similarity reduces the cost of administration. Deans, associate deans and others charged with multi-program administration may find such tasks easier where the basic organization and functioning or programs share basic components in common. Such similarity may also encourage uniform treatment of programs by senior administrators. Perceptions of fairness tend to reduce friction within a faculty; a culture of uniform treatment is a basic component of that perception of institutional fairness that reduces the usual habits of faculty to seek individual advantage from administrators, and the resentments caused within a faculty when one person or group appears more favored than others.
Basic organizational uniformity can make it easier to publicize such programs among the various outside constituencies of an institution. For example, undergraduate recruiters may find it easier to “sell” programs where similarities make the variety of programs offered easier to explain. Likewise, organizational similarity may provide a more efficient means of publicizing such programs to alumnae and the local judiciary and bar. Where programs are open to participation by non-law students, organizational similarity makes participation easier.
2. Design programs for the future, not the past.—It is easy to build programs based on an understanding on where things stand at the present. Indeed, there is sometimes an urge to fix a program based on current views and understandings to ensure that the program will run in the future the way it was set up. This sort of approach to program design can be fatal to the long term utility of any legislation or program, including law school programs, and particularly certificate programs. Programs designed for flexibility, and with an eye toward the possibilities the future may bring can become more powerful vehicles for student and faculty satisfaction. Such programs permit change as faculty change. It makes response to changes in the market, in the fields of law, in faculty, and student interest much easier to make. It makes expansion, as well as contraction, of programs less of an administrative nightmare. It makes experimentation possible.
Yet, such a future-centered approach can require quite a bit of trust on the part of a faculty. The ideal of future focused program construction gives rise to issues of rules versus discretion that has plagued significant areas of law in the twentieth century. Where fairness is an issue, where core values and outlooks are not shared among those responsible for governance, discretion itself becomes problematic. Yet monitoring can serve as an effective substitute for limiting discretion in the context of the implementation and administration of certificate programs. Fairness to students in the administration of the certificate program, for example, can be monitored by instituting a protest or appeals process that leads to review by the Academic Dean. Discretion can be monitored by decanal or faculty oversight in the form of periodic reports from the administrators of the program. In addition, where empire building is a concern, multi-person administrative boards reduces the remote possibility of misusing certificate programs.
3. Program objectives should be clearly related to the mission of the Law School.—Certificate programs should be built on the basis of the assumption that the academic institution has committed sufficient faculty and other institutional resources to implement the certificate program in good faith. Absent this commitment, a certificate program is an empty shell—good only for the web page and recruiting. Ultimately, unrealistically implemented certificate programs tend to produce the ill will that flows from the belief among students that they have not received the benefit of their bargain with the Law School. Law Schools generally play to their strengths, as well as to the interests of students who tend to matriculate at each institution. This is a matter of economics and feasibility. This tendency to play to strengths, geography and limited mission is already well advanced in legal academia.
It is conceivable that a law school with multiple strengths could support more than one certificate program. It is also likely, under those circumstances, that the aggregate number of certificate programs will not affect the ability of the law school to offer its students a well-rounded curriculum. As long as the faculty is satisfied that its mix of mandatory and optional courses is fair and realistic, and that certificate programs do not completely monopolize student time, it is unreasonable to presume that certificate programs, even certificate programs in the aggregate, will substantially adversely affect the well rounded curriculum of any law school.
4. Limits—not every law school can support formal certificate programs in every field.—To be successful, certificate programs must be credible. One lesson of the last section must be that credibility requires playing to strengths. However, there are limits to the ability of law schools to create environments in which certificate programs, and especially multiple certificate programs, can operate. While there may be no quantitative limitation to the number of certificate programs that can be maintained by a law school, there ought to be qualitative limitations on the creation of these programs. A realistic qualitative assessment of the strengths of an institution in a particular field ought to be undertaken prior to any decision to move forward with a certificate program. Any such qualitative assessment can be most fairly accomplished only when based on the application of a uniform standard of assessment. Such a standard is necessarily contextual—its application will depend on the unique circumstances of each proposed certificate program within a law school. However, such unique circumstances can be consistently assessed against a uniform set of factors derived from the principles of certificate program construction developed in this section. Factors that must be weighed in any determination of certificate program feasibility should include at a minimum the following:
(i) the number of full and part time academic faculty devoted to that area of law at the law school,
(ii) the number of courses offered at the law school in that field,
(iii) the reputation of that law school among the community of scholars in that field,
(iv) the number of students who have historically and might in the future participate in the program,
(v) the synergistic value of a formal certificate program in that field,
(vi) the realistic potential for sustaining a focused scholarly and curricular enterprise in that field of law.
There are doubtless other factors that may play an important part in the consideration within the peculiar context of an individual law school. Thus, for example, it may be inadvisable to create a certificate program where there is only one faculty member involved full time in teaching and writing in the field, the number of courses that can be offered are limited, course offerings will be dependent on outside non-academic adjuncts, and there is little likelihood at the time the certificate is considered that either faculty or student interest in the field will be sustained or will grow. In those circumstances, there is no reason informal concentration programs cannot be created and run by interested faculty. These would serve primarily as a means of helping interested students choose more focused course packages in those fields where the law school does not exhibit the strength sufficient to create a formal program leading to a certificate.
5. Certificate requirements should be fair and realistic.—Parents who attempt to live through their children, who use their children as a means to correct the “mistakes” they made in their own youth, are rightly scorned in this society. Faculties, like parents, find it easy to get carried away by desires to “do what is best” for their students. Faculties must constantly fight the urge to do with their students what neurotically dysfunctional parents have been attempting in soccer fields and academic competitions throughout the United States in the last generation—live their fantasies through them.
The objective of determining the number and scope of requirements for a certificate should be to provide a substantial basic grounding in the field of law the study of which is represented by a certificate without the need to produce an expert the equal of the academics who trained the certificate recipients. A certificate is neither an advanced degree in law, nor does it represent anything but the systematic basic study of a field in which the beginner has commenced concentrated study. To invest the certificate with greater “results” than that is an exercise in delusion. As a consequence, certificate program requirements ought to be developed with an eye toward realistic expectations in the context of programs designed to provide a basic, significant advanced introduction to the field of law studied. All designers of certificate programs must communicate to their colleagues the difference between a certificate earned in conjunction with a J.D. and an advanced degree in a concentrated study of a field of law.
6. Certificate Programs should not be a refuge of the marginally performing student.—For a certificate program to provide the greatest benefit to students, the students themselves must be ready and able to profit from a concentration in any specialized area of law. To attain this aim, it is necessary that students be well prepared in the basics. Students who do not exhibit a minimum facility in core areas of law may find the program less valuable than alternatives. Moreover, a faculty may determine that students who do not seem to be able to demonstrate an adequate level of mastery of basic subjects ought to concentrate on that mastery before attempting specialized study.
Having determined that some minimum demonstration of mastery of basic subjects is desirable, it is necessary to determine which of the basic subjects are most relevant to the specialized study of a particular certificate program. This determination is highly contextual. To determine which courses were important as a general foundation for the certificate in international, comparative and foreign law, a number of factors were taken into account. These factors included the extent to which the substance of basic courses be important for success in the fields of law covered by the certificate. Another factor was the extent to which the basic course provided needed vocabulary or introduction to general principles with application to courses in the fields covered by the certificate. Yet another factor was the extent to which the course provided basic grounding in the lawyer’s craft and legal ethics. All of these factors, of course, have something in common. They all developed basic patterns of approach to legal problems, or a basic understanding of the structuring of basic institutions and process at the core of the lawyer’s function.
7. Program administration should be used as a vehicle for the integration of all faculty working in the field within the common enterprise.—Development of program administration can be as important for optimizing the value of a certificate program for an institution as program design. There are two general models of governance generally followed, though the variation within each category is large. The first is the single administrator model. The second is the governance-by-committee model. The former, at its worst, can be a vehicle for personal aggrandizement within an institution, and the springboard to personal advancement—perhaps to a deanship. At its best, the single administrator model can be the basis for dynamic and flexible efficient administration. Variations on this form of administration include administrator plus advisory committee, or the executive director plus board of directors model. Governance by committee can range from a dual director model, to a model based on governance through committee or committees. The basic difference between the two models is that a single person is ultimately responsible for decisions under the single director model and more than one person, collectively, is responsible for decisions under the other model. In many institutions, the model chosen is based on historical accident. Usually little attention is paid to the form of governance as a matter of theory, apart from personal benefit to the actors directly affected at the time the model of governance decision is made.
8. Certificate Programs should serve as a focal point for generalized guidance for students on curricular choices.—One of the hardest tasks for most law students is choosing the appropriate mix of courses that may maximize the value of their law school education. While maximizing the utility of curricular choices is to some extent highly subjective, such decisions are more difficult to make in the absence of information. A certificate program provides a useful vehicle for a law school to meet its information and guidance roles, at least with respect to the fields of law covered by the certificate.
For faculty, certificate programs can serve as an efficient gateway for the counseling of students. Faculty, even those not involved in the fields covered by the certificate program, can make use of the curricular requirements of the certificate, in general, and the illustrative courses of study, in particular, to help students develop a personal program of study that maximizes the utility of their years in law school. Moreover, well constructed illustrative programs of study leading to the award of a certificate can be developed consistent with the general mission of the Law School to produce well-rounded lawyers.
9. Certificate Programs should be made available to alumni and other members of the bar.—Law schools have increasingly understood their mission as neither limited to the three years of study leading to a J.D. degree, or to the education of their matriculating students. Increasingly, law schools have understood the importance of providing their alumni with opportunities for continuing education as well as for other lawyers. A certificate program provides a sound vehicle for an integrated, long term program of continuing education for lawyers wishing to expand their areas of expertise. It may thus be possible to permit lawyers to audit or otherwise enroll in courses leading to the granting of a certificate, and to make a certificate available to lawyers who finish the program. Alternatively, the courses comprising the certificate can be made available for enrollment by lawyers seeking continuing legal education credit.
Though, on first blush, one might be tempted to object to any program that permits lawyers to sit in on classes designed to meet the requirements of the J.D. curriculum, a more careful consider-ation suggests that the benefits of this mixing far outweigh any theoretical negatives. One of the strongest objections to mixing might be that programs of this kind offer lawyers the opportunity to retake courses already taken in law school. Yet this is unlikely to occur in fact. First, lawyers are busy, J.D. courses, even on audit, would tend to require the expenditure of some money. Lawyers would tend not to want to waste their time or their money on silly enterprises. Lawyers most likely to take advantage of these opportunities would be those who never had a chance to take the courses offered when they went to law school and find themselves confronting problems in new areas of law.
10. Certificate programs can be crafted to avoid adversely affecting bar passage rates.—Evaluation of the suitability of any certificate program will invariably lead to a discussion of the effects of the certificate program, or of legal specialization in general, on bar passage rates. Someone will suggest that certificate programs contribute, directly or indirectly, to a downward pressure on bar passage rates. Yet careful consideration of the issues statements like that raise indicate that certificate programs, when carefully constructed, do not have this negative effect on bar passage rates. The argument confuses the effect of specialization with hat of poor grades on bar performance. More significantly, it hints at dissatisfaction, not with certificate programs, but with the curricular choices made by the faculty between mandatory and optional courses.
In considering the parade of horribles attendant on any change within an institution, it has sometimes been suggested that certificate programs may somehow be linked negatively to an institution’s bar passage rate. Certificate programs, it might be argued, offer marginally performing students a way of rehabilitating their relatively poor performance (at least vis-a-vis the other students in their class). These students may be disproportionately attracted to certificate programs in hopes that a certificate may deflect a closer or more meaningful inspection of their aggregate academic performance. And indeed, where poorly performing students do better on their certificate courses than on other courses, they might even take advantage of this to advertise a higher grade average in an area of interest than in their aggregate performance. As a result, so the argument may conclude, such students devote a disproportionate amount of their class time on “marginal” courses, that is courses necessary to complete the certificate, and less time on “important” courses, that is courses that might help them better prepare for practice. As a result, these students may be more likely to fail the bar and thus negatively affect the bar passage rate of the institution.
Careful analysis of this argument suggests some of its weaknesses. First, it is not clear that marginally performing students are attracted in disproportionate numbers to certificate programs. Second it is not clear that marginally performing students will perform better in courses that count for the award of a certificate than in other courses. Indeed, assuming that all courses are taught within the same range of rigor, a student’s performance should, on the average, be similar in certificate and non-certificate courses. Most importantly, the connection between participation in certificate program courses and other course work which, if properly undertaken might have bettered the student’s chances of bar passage, rests on slim logic and little hard evidence. It suggests that but for the time spent on a course of certificate study, the student with a low grade point average would have either performed better in courses otherwise deemed more appropriate to bar preparation, or would have taken more courses deemed essential to bar preparation.
11. Certificate Programs can contribute to the development of a well-rounded graduate.—Most law schools profess a mission to produce a law graduate with a well rounded legal education. Certificate programs, if well constructed, can provide an efficient means of affording direction in the third year of law study, increasing the utility of the student’s third year. At their best, certificate programs, in conjunction with a well thought out program of required courses in the first and second year of study, provide an integrated course of study that can enrich all three years of legal study. Certificate programs provide a means of thinking about general curriculum issues in a narrower context. Similar considerations should guide the structuring of the sequence of courses, required and optional, that forms that basis of a certificate program, as those that inform the creation of the general law school curriculum. Certificate programs may well thus provide a framework, or another more narrowly focused space, within which the important issues of curricular needs and “what is best for students” can be developed. Yet at the same time, the focus permits law schools to adjust to the realities of the markets they serve, both legal and otherwise, especially the move towards specialization—not hyper-specialization, but rather specialization to some extent. Certificate programs provide a point at which legal education can adjust to the practices and cultures of the industries in which it operates.
Law schools have responded to this reality of specialization in a variety of ways. One of the more successful responses to this trend has been the proliferation of post-J.D. programs in specialized fields. Another response has been the establishment of concentrations or the creation of certificate programs—programs of specialized study leading to a certificate or other document memorializing the successful completion of this program of specialized study. Boston University’s web site suggests that concentrating one’s studies in one of a number of specialized areas of law may provide law students with the necessary skills to stay ahead of rapidly changing regulatory environments. “By pursuing a concentration, students can engage in advanced, in-depth study with the leading scholars and practitioners in a specific field, without having to pursue an advanced degree. Students are then equipped with the specialized legal training and tools that can give them a powerful advantage in the marketplace” (http://www.bu.edu/law/jd/concentrations/; accessed May 17, 2006).
Certificate programs became more popular in the 1990s. Their popularity can be explained, in part by their flexibility. The programs are not directly regulated by the American Bar Association or other professional regulatory body. The certificate earned upon completion of a program is not a “degree,” like a J.D., or other traditional indicia of completion of an academic program, all of which are heavily regulated within legal academia. It has no formal institutional meaning other than set forth on its face. Nor is the meaning of a certificate universal. Its academic “weight” is highly contextual. As such, it is worth “less” than a degree. But this freedom from regulation of programs, and this “worthlessness” of the certificate itself, will be crucial factors in the ultimate proliferation of certificate programs. These characteristics result in programs that are easy to implement and require substantially less administrative expense than their direct competitors—the LL.M. programs. Though the LL.M. degree may be “worth” more—have more value as an academic credential—than a certificate added on to a J.D. degree, the cost of implementing and maintaining an LL.M. program will be substantially higher than the equivalent costs of a certificate program.
At schools with the necessary faculty resources and courses already in place, creation of such programs requires minimal modification to current practice—usually just adoption of a set of simple rules specifying the courses a student must successfully complete in order to obtain a certificate. Thus, in their simplest form, certificate programs are cost-effective means of providing academic guidance to students seeking some sort of specialized program of study. It has additional benefits. It provides a means of informing employers of the student’s specialization, and of regularizing the course of study leading to that specialization—at least within each law school. Certificate programs may also aid in recruitment of prospective students. Students may be drawn to an institution that provides specialized study, leading to a recognition of that specialization, especially if they have an interest in the areas of the specialization available. Even if this is not the case, a prospective law student may use certificate programs as a proxy for faculty quality in a particular area of law, or depth of faculty coverage in these areas. Both surmises work to the benefit of the recruiting law school offering the programs—and to the detriment of competitor institutions that fail to act. Ironically, certificate programs may also provide another long-term conventional benefit —they may serve to prepare an institution for a solid investment in an LL.M. program.
The decision to create a certificate program in any area of legal specialization may be a difficult one for a law school. Successfully designed and implemented certificate programs require a substantial amount of attention to detail to ensure that they complement a law school’s mission and appropriately deploy institutional resources. Successful certificate programs are those that manage to increase generally the quality of an institution and provide aggregate benefits to students and faculty greater than the costs of operation of the program over the long-term life of the institution.
Certificate programs will vary considerably in their scope and content. Every certificate program must conform to the nature of the field that is the subject of study. As a consequence, such programs can vary considerably in form and detail. At some level of generality, however, all certificate programs contain common elements. This “commonality” is a function of shared principles underlying the creation and implementation of these programs. An understanding of these underlying principles is critical to the creation of sound certificate programs. My purpose in this section is to draw out those general principles, with a view to applying these principles to Penn State’s Certificate Program in the section that follows.
1. Differences in form between programs should be minimized.—At least within any institution, minimizing variation in the form between certificate programs offered by that institution will increase the marginal utility of the programs as a whole.
There is pedagogical value in establishing a similarity of form among all certificate programs offered at a particular institution. An overall consistency among programs may reduce student confusion. It serves, as well, to decrease the likelihood that students will fail to fulfill the requirements of a particular certificate program. Overall macro-consistency may also reduce faculty confusion, or indifference to programs. Reduction of faculty confusion may encourage faculty to better counsel students seeking their advice. Reducing indifference may encourage faculty curiosity and the advancement of knowledge through conversations across disciplines. Lastly, basic similarity of organizational form may make it easier for certificate program directors to interact, from simple matters such as sharing information on administration and student concerns, to matters of substantial institutional advancement such as the creation of joint endeavors.
There are administrative advantages to macro-similarity as well. Program similarity may serve to reinforce the distinctive culture of an institution. Macro-uniformity makes it easier to structure and implement other programs of concentration. Each concentration can make use of a basic structure that experience has shown works successfully within the academic and administrative context of the institution in which the concentration is to be adopted. Thus, program similarity reduces the cost of administration. Deans, associate deans and others charged with multi-program administration may find such tasks easier where the basic organization and functioning or programs share basic components in common. Such similarity may also encourage uniform treatment of programs by senior administrators. Perceptions of fairness tend to reduce friction within a faculty; a culture of uniform treatment is a basic component of that perception of institutional fairness that reduces the usual habits of faculty to seek individual advantage from administrators, and the resentments caused within a faculty when one person or group appears more favored than others.
Basic organizational uniformity can make it easier to publicize such programs among the various outside constituencies of an institution. For example, undergraduate recruiters may find it easier to “sell” programs where similarities make the variety of programs offered easier to explain. Likewise, organizational similarity may provide a more efficient means of publicizing such programs to alumnae and the local judiciary and bar. Where programs are open to participation by non-law students, organizational similarity makes participation easier.
2. Design programs for the future, not the past.—It is easy to build programs based on an understanding on where things stand at the present. Indeed, there is sometimes an urge to fix a program based on current views and understandings to ensure that the program will run in the future the way it was set up. This sort of approach to program design can be fatal to the long term utility of any legislation or program, including law school programs, and particularly certificate programs. Programs designed for flexibility, and with an eye toward the possibilities the future may bring can become more powerful vehicles for student and faculty satisfaction. Such programs permit change as faculty change. It makes response to changes in the market, in the fields of law, in faculty, and student interest much easier to make. It makes expansion, as well as contraction, of programs less of an administrative nightmare. It makes experimentation possible.
Yet, such a future-centered approach can require quite a bit of trust on the part of a faculty. The ideal of future focused program construction gives rise to issues of rules versus discretion that has plagued significant areas of law in the twentieth century. Where fairness is an issue, where core values and outlooks are not shared among those responsible for governance, discretion itself becomes problematic. Yet monitoring can serve as an effective substitute for limiting discretion in the context of the implementation and administration of certificate programs. Fairness to students in the administration of the certificate program, for example, can be monitored by instituting a protest or appeals process that leads to review by the Academic Dean. Discretion can be monitored by decanal or faculty oversight in the form of periodic reports from the administrators of the program. In addition, where empire building is a concern, multi-person administrative boards reduces the remote possibility of misusing certificate programs.
3. Program objectives should be clearly related to the mission of the Law School.—Certificate programs should be built on the basis of the assumption that the academic institution has committed sufficient faculty and other institutional resources to implement the certificate program in good faith. Absent this commitment, a certificate program is an empty shell—good only for the web page and recruiting. Ultimately, unrealistically implemented certificate programs tend to produce the ill will that flows from the belief among students that they have not received the benefit of their bargain with the Law School. Law Schools generally play to their strengths, as well as to the interests of students who tend to matriculate at each institution. This is a matter of economics and feasibility. This tendency to play to strengths, geography and limited mission is already well advanced in legal academia.
It is conceivable that a law school with multiple strengths could support more than one certificate program. It is also likely, under those circumstances, that the aggregate number of certificate programs will not affect the ability of the law school to offer its students a well-rounded curriculum. As long as the faculty is satisfied that its mix of mandatory and optional courses is fair and realistic, and that certificate programs do not completely monopolize student time, it is unreasonable to presume that certificate programs, even certificate programs in the aggregate, will substantially adversely affect the well rounded curriculum of any law school.
4. Limits—not every law school can support formal certificate programs in every field.—To be successful, certificate programs must be credible. One lesson of the last section must be that credibility requires playing to strengths. However, there are limits to the ability of law schools to create environments in which certificate programs, and especially multiple certificate programs, can operate. While there may be no quantitative limitation to the number of certificate programs that can be maintained by a law school, there ought to be qualitative limitations on the creation of these programs. A realistic qualitative assessment of the strengths of an institution in a particular field ought to be undertaken prior to any decision to move forward with a certificate program. Any such qualitative assessment can be most fairly accomplished only when based on the application of a uniform standard of assessment. Such a standard is necessarily contextual—its application will depend on the unique circumstances of each proposed certificate program within a law school. However, such unique circumstances can be consistently assessed against a uniform set of factors derived from the principles of certificate program construction developed in this section. Factors that must be weighed in any determination of certificate program feasibility should include at a minimum the following:
(i) the number of full and part time academic faculty devoted to that area of law at the law school,
(ii) the number of courses offered at the law school in that field,
(iii) the reputation of that law school among the community of scholars in that field,
(iv) the number of students who have historically and might in the future participate in the program,
(v) the synergistic value of a formal certificate program in that field,
(vi) the realistic potential for sustaining a focused scholarly and curricular enterprise in that field of law.
There are doubtless other factors that may play an important part in the consideration within the peculiar context of an individual law school. Thus, for example, it may be inadvisable to create a certificate program where there is only one faculty member involved full time in teaching and writing in the field, the number of courses that can be offered are limited, course offerings will be dependent on outside non-academic adjuncts, and there is little likelihood at the time the certificate is considered that either faculty or student interest in the field will be sustained or will grow. In those circumstances, there is no reason informal concentration programs cannot be created and run by interested faculty. These would serve primarily as a means of helping interested students choose more focused course packages in those fields where the law school does not exhibit the strength sufficient to create a formal program leading to a certificate.
5. Certificate requirements should be fair and realistic.—Parents who attempt to live through their children, who use their children as a means to correct the “mistakes” they made in their own youth, are rightly scorned in this society. Faculties, like parents, find it easy to get carried away by desires to “do what is best” for their students. Faculties must constantly fight the urge to do with their students what neurotically dysfunctional parents have been attempting in soccer fields and academic competitions throughout the United States in the last generation—live their fantasies through them.
The objective of determining the number and scope of requirements for a certificate should be to provide a substantial basic grounding in the field of law the study of which is represented by a certificate without the need to produce an expert the equal of the academics who trained the certificate recipients. A certificate is neither an advanced degree in law, nor does it represent anything but the systematic basic study of a field in which the beginner has commenced concentrated study. To invest the certificate with greater “results” than that is an exercise in delusion. As a consequence, certificate program requirements ought to be developed with an eye toward realistic expectations in the context of programs designed to provide a basic, significant advanced introduction to the field of law studied. All designers of certificate programs must communicate to their colleagues the difference between a certificate earned in conjunction with a J.D. and an advanced degree in a concentrated study of a field of law.
6. Certificate Programs should not be a refuge of the marginally performing student.—For a certificate program to provide the greatest benefit to students, the students themselves must be ready and able to profit from a concentration in any specialized area of law. To attain this aim, it is necessary that students be well prepared in the basics. Students who do not exhibit a minimum facility in core areas of law may find the program less valuable than alternatives. Moreover, a faculty may determine that students who do not seem to be able to demonstrate an adequate level of mastery of basic subjects ought to concentrate on that mastery before attempting specialized study.
Having determined that some minimum demonstration of mastery of basic subjects is desirable, it is necessary to determine which of the basic subjects are most relevant to the specialized study of a particular certificate program. This determination is highly contextual. To determine which courses were important as a general foundation for the certificate in international, comparative and foreign law, a number of factors were taken into account. These factors included the extent to which the substance of basic courses be important for success in the fields of law covered by the certificate. Another factor was the extent to which the basic course provided needed vocabulary or introduction to general principles with application to courses in the fields covered by the certificate. Yet another factor was the extent to which the course provided basic grounding in the lawyer’s craft and legal ethics. All of these factors, of course, have something in common. They all developed basic patterns of approach to legal problems, or a basic understanding of the structuring of basic institutions and process at the core of the lawyer’s function.
7. Program administration should be used as a vehicle for the integration of all faculty working in the field within the common enterprise.—Development of program administration can be as important for optimizing the value of a certificate program for an institution as program design. There are two general models of governance generally followed, though the variation within each category is large. The first is the single administrator model. The second is the governance-by-committee model. The former, at its worst, can be a vehicle for personal aggrandizement within an institution, and the springboard to personal advancement—perhaps to a deanship. At its best, the single administrator model can be the basis for dynamic and flexible efficient administration. Variations on this form of administration include administrator plus advisory committee, or the executive director plus board of directors model. Governance by committee can range from a dual director model, to a model based on governance through committee or committees. The basic difference between the two models is that a single person is ultimately responsible for decisions under the single director model and more than one person, collectively, is responsible for decisions under the other model. In many institutions, the model chosen is based on historical accident. Usually little attention is paid to the form of governance as a matter of theory, apart from personal benefit to the actors directly affected at the time the model of governance decision is made.
8. Certificate Programs should serve as a focal point for generalized guidance for students on curricular choices.—One of the hardest tasks for most law students is choosing the appropriate mix of courses that may maximize the value of their law school education. While maximizing the utility of curricular choices is to some extent highly subjective, such decisions are more difficult to make in the absence of information. A certificate program provides a useful vehicle for a law school to meet its information and guidance roles, at least with respect to the fields of law covered by the certificate.
For faculty, certificate programs can serve as an efficient gateway for the counseling of students. Faculty, even those not involved in the fields covered by the certificate program, can make use of the curricular requirements of the certificate, in general, and the illustrative courses of study, in particular, to help students develop a personal program of study that maximizes the utility of their years in law school. Moreover, well constructed illustrative programs of study leading to the award of a certificate can be developed consistent with the general mission of the Law School to produce well-rounded lawyers.
9. Certificate Programs should be made available to alumni and other members of the bar.—Law schools have increasingly understood their mission as neither limited to the three years of study leading to a J.D. degree, or to the education of their matriculating students. Increasingly, law schools have understood the importance of providing their alumni with opportunities for continuing education as well as for other lawyers. A certificate program provides a sound vehicle for an integrated, long term program of continuing education for lawyers wishing to expand their areas of expertise. It may thus be possible to permit lawyers to audit or otherwise enroll in courses leading to the granting of a certificate, and to make a certificate available to lawyers who finish the program. Alternatively, the courses comprising the certificate can be made available for enrollment by lawyers seeking continuing legal education credit.
Though, on first blush, one might be tempted to object to any program that permits lawyers to sit in on classes designed to meet the requirements of the J.D. curriculum, a more careful consider-ation suggests that the benefits of this mixing far outweigh any theoretical negatives. One of the strongest objections to mixing might be that programs of this kind offer lawyers the opportunity to retake courses already taken in law school. Yet this is unlikely to occur in fact. First, lawyers are busy, J.D. courses, even on audit, would tend to require the expenditure of some money. Lawyers would tend not to want to waste their time or their money on silly enterprises. Lawyers most likely to take advantage of these opportunities would be those who never had a chance to take the courses offered when they went to law school and find themselves confronting problems in new areas of law.
10. Certificate programs can be crafted to avoid adversely affecting bar passage rates.—Evaluation of the suitability of any certificate program will invariably lead to a discussion of the effects of the certificate program, or of legal specialization in general, on bar passage rates. Someone will suggest that certificate programs contribute, directly or indirectly, to a downward pressure on bar passage rates. Yet careful consideration of the issues statements like that raise indicate that certificate programs, when carefully constructed, do not have this negative effect on bar passage rates. The argument confuses the effect of specialization with hat of poor grades on bar performance. More significantly, it hints at dissatisfaction, not with certificate programs, but with the curricular choices made by the faculty between mandatory and optional courses.
In considering the parade of horribles attendant on any change within an institution, it has sometimes been suggested that certificate programs may somehow be linked negatively to an institution’s bar passage rate. Certificate programs, it might be argued, offer marginally performing students a way of rehabilitating their relatively poor performance (at least vis-a-vis the other students in their class). These students may be disproportionately attracted to certificate programs in hopes that a certificate may deflect a closer or more meaningful inspection of their aggregate academic performance. And indeed, where poorly performing students do better on their certificate courses than on other courses, they might even take advantage of this to advertise a higher grade average in an area of interest than in their aggregate performance. As a result, so the argument may conclude, such students devote a disproportionate amount of their class time on “marginal” courses, that is courses necessary to complete the certificate, and less time on “important” courses, that is courses that might help them better prepare for practice. As a result, these students may be more likely to fail the bar and thus negatively affect the bar passage rate of the institution.
Careful analysis of this argument suggests some of its weaknesses. First, it is not clear that marginally performing students are attracted in disproportionate numbers to certificate programs. Second it is not clear that marginally performing students will perform better in courses that count for the award of a certificate than in other courses. Indeed, assuming that all courses are taught within the same range of rigor, a student’s performance should, on the average, be similar in certificate and non-certificate courses. Most importantly, the connection between participation in certificate program courses and other course work which, if properly undertaken might have bettered the student’s chances of bar passage, rests on slim logic and little hard evidence. It suggests that but for the time spent on a course of certificate study, the student with a low grade point average would have either performed better in courses otherwise deemed more appropriate to bar preparation, or would have taken more courses deemed essential to bar preparation.
11. Certificate Programs can contribute to the development of a well-rounded graduate.—Most law schools profess a mission to produce a law graduate with a well rounded legal education. Certificate programs, if well constructed, can provide an efficient means of affording direction in the third year of law study, increasing the utility of the student’s third year. At their best, certificate programs, in conjunction with a well thought out program of required courses in the first and second year of study, provide an integrated course of study that can enrich all three years of legal study. Certificate programs provide a means of thinking about general curriculum issues in a narrower context. Similar considerations should guide the structuring of the sequence of courses, required and optional, that forms that basis of a certificate program, as those that inform the creation of the general law school curriculum. Certificate programs may well thus provide a framework, or another more narrowly focused space, within which the important issues of curricular needs and “what is best for students” can be developed. Yet at the same time, the focus permits law schools to adjust to the realities of the markets they serve, both legal and otherwise, especially the move towards specialization—not hyper-specialization, but rather specialization to some extent. Certificate programs provide a point at which legal education can adjust to the practices and cultures of the industries in which it operates.
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