Sunday, October 12, 2014

Improving law school without changing it (too much)

Knightly reads his case law
With very few lawyer jobs available for their armies of graduates, many law schools are trying to “innovate” and make their curriculum “practice ready” to give their new grads a leg up in the job market. Aside from whether today’s law schools are capable of such genuine curriculum redesign, one prof recently wrote that law schools should simply stop such efforts, and instead “change the conversation.” This prof argues that attempts to innovate are essentially admissions that the traditional law school approach — reading case law — is no longer valuable. Instead, he argues, law schools should market / sell / discuss what they’re good at: “teaching students how to read cases with the requisite degree of care.” Now, while I suspect that many of today’s practice-ready reform efforts are just marketing campaigns designed to compete for a shrinking number of law school applicants, the prof’s defense of the status quo also has some flaws — though they could easily be corrected.

First, law profs don’t actually teach students how to read cases. I think case reading is a skill that can be taught, but profs don’t even try. In my experience, the students that were good at reading / understanding / distinguishing / criticizing cases knew how to do that (almost intuitively) from the get-go; those who struggled remained clueless throughout the semester while laboring under the often-repeated hope and delusion that “it will all make sense right before the final.” To correct this serious problem, law schools should give students a one- or two-day training session — including actual instruction, not just more Socratic method — on how to actually read / understand / distinguish / criticize cases. 

Second, I’ll admit that after one semester of law school I was slightly more adept at reading cases than when I started. There is no doubt that practice improves any skill, and case reading is no exception. But the problem is that law school is three years long. If a student can’t learn and nearly perfect the skill of case reading after one semester — or, worst case, after one year — then that student probably isn’t going to “get it,” ever. And for those students who hone the skill quickly, the second and third years of law school become a waste of time. For me, the thought of reading cases for three years was unbearable; after my first semester of law school, I decided to graduate in 2 ½ years. I was onto something: today, many schools are correcting this problem by cutting their J.D. programs to 2 ½ or even two years. 

Third, let’s assume that problems one and two are corrected: (1) law profs use the first few days of law school to actually teach students how to read / understand / distinguish / criticize cases; and (2) law school is cut down to two or 2 ½ years. Even with these changes, the problem is that, at least in many areas of law, students still come out of law school with nothing more than the ability to read cases. That is, they haven’t obtained any useful body of knowledge they can apply to actual problems. 

How can this be? Consider this analogy. In medical schools, students emerge with certain skills that are akin to the law student’s skill of reading cases. However, new doctors also learned a substantive body of knowledge about their subject (the human body and medicine) that is useful and can be applied in practice.  This is easily accomplished as the human body and medicine are pretty much the same regardless of the state in which a particular medical school is located.

In law school, however, many areas of law are highly, if not entirely, state specific. Yet law schools are obsessed with being “national” in scope, so profs typically teach from case books that collect a handful of edited cases from many different states. Therefore, even if students emerge from law school being really, really good at reading cases, the cases they studied are of no value beyond developing the skill of reading cases! I found this out the hard way when, after spending 2 ½ years in law school, I had to spend a great deal of additional time teaching myself Wisconsin’s substantive and procedural criminal law from scratch. Never mind the need to develop the practical skills of actual lawyering; I’m referring to a basic body of legal knowledge that most law schools simply don’t teach. 

The solution to this third problem? Whether you are a prof at Boston U., Stetson, T-Jeff Law, or anywhere in between, when you teach state-specific subjects like criminal law, teach the actual body of law of the state where the school is located. True, not every graduate will practice in that state — some will go out-of-state and many won’t even land a lawyer job — but even those graduates will be no worse off than if you had used a casebook to teach a mish-mash collection of cases from multiple states.

Fourth, let’s now assume that even the third problem is corrected: law profs are now teaching a useful body of law such as, for example, California criminal law and California criminal procedure for students at California law schools. There is still one additional problem: profs have to resist the urge to teach only the cases that are “interesting.”

Sticking with criminal law, profs also have to teach cases addressing legal issues that most would consider mundane. For example, how is sentence credit computed? What is the remedy for a violation of the state’s speedy trial statute as opposed to the federal constitutional speedy trial right? Is there a difference between actual pre-arrest silence and the specific, pre-arrest invocation of the right against self-incrimination? The list goes on and on. These, I suspect, are legal questions that many profs don’t even know exist, let alone put on their syllabus. But if profs are going to teach students entirely through case law, then they simply have to be thorough when selecting the case law that they teach.

So there you have it: a plan for law school “reform” that doesn’t require any curriculum redesign, and permits law profs to stick to what they are comfortable with. Despite largely maintaining the status quo, however, this plan would ensure that law students: (1) really learn how to read cases; (2) don’t have to spend a full three full years to learn that skill; (3) emerge with a useful body of knowledge; and (4) emerge with a comprehensive body of knowledge within a given subject area.

Sometimes change isn’t so tough.

1 comment:

  1. And run a legal clinic which accepts as many cases as possible. I'm not a lawyer, but I doubt there's any better training than helping with as many actual cases as possible, start to finish.