November 3, 2006
Interdisciplinary Adventures, Pt. 1
On Monday, I will start a new quarter at Baylor, teaching a class titled “Criminal Practice.” The class is designed to replicate the criminal process from investigation through sentencing, and involves a series of student exercises as they track a simulated case (there are several) through each step of the process. For example, they will conduct an initial interview of either their client or investigator; after that, those who are in the role of prosecutors will then present an indictment to a grand jury. When I first started this class there were only 8-12 students per quarter, but now it is up to 47. For the first class, I use the Susan Glaspell play Trifles, which was written in 1916. The script of the play, which is in the public domain, is available here. I will teach the class with Dr. Deanna Toten Beard, a dramaturg in Baylor's Theater department. The play involves a criminal investigation in which the sheriff and DA miss the crucial evidence because they dismiss the concerns of women as "trifles." It works as a framing device for the class because it emphasizes the importance of humility as a balance to the power and discretion allowed prosecutors, and establishes the cost of arrogance in the pursuit of justice in a very real and whole way.
November 1, 2006
Razors, jobs, dead cats, and curricular reform
You read that right. Razors, jobs, dead cats, and curricular reform. All of those, plus Larry Kramer, Doug Berman, and Orin Kerr on the question of whether the first year of law school is the one that "works," now playing at MoneyLaw.
The Mandatory Third Year Curriculum
The comments by Doug Berman, Dean Kramer and others regarding the Law School curriculum remind me of how different Baylor is than most schools, and in its differences offers a contrast to the situations others describe.
At Baylor, the majority of the third-year curriculum is mandatory. The concept of "third-year" students is somewhat skewed as we are on a quarter system, but it works out to roughly 70% of a student's last year in school being dedicated to required and especially intense classes. The common impression left on students is that the third year is the hardest of all at Baylor.
At the center of this third-year program is the Practice Court program, which is required of all students. In the first quarter of that program, all classes are required. Each week, they receive about 7-10 hours of instruction on advanced civil procedure, 7-10 hours on evidence and related topics, and 2-3 hours on professional responsibility. The reading load for these classes is very heavy. In addition, on most afternoons in this quarter the students are busy with mandatory courtroom exercises, in which they serve as advocates, jurors, judges, and witnesses in several complete trials. The second quarter consists of 7-10 hours of advanced civil procedure class, more exercises, and a few electives.
Baylor has required Practice Court for over 80 years. Whatever drawbacks it may present, it does keep the students very engaged in law school through their third year.
October 30, 2006
Pedagogy and the bottom line
Responding to Dean Kramer's extended missive about law curriculum, Orin Kerr astutely notes here that his musing about 2L and 3L disengagement "is overlooking something important: j-o-b-s." As Orin explains:
By a month into their second year, many students (and almost all at a school like Stanford) are going to have lined up summer jobs at law firms. As long as they don't act like freaks over the summer, they will get full-time job offers. As a result, the rat race is effectively over for many students the moment they accept their summer positions; they pay less attention than before because, well, they can.
Commentors to Orin's post confirm his insight, with one candidly admitting "yah, I basically don't care now that I have my summer job at a top firm," and another asserting that "there is essentially no reason for a rational law student in possession of a summer associate offer ... to exert more than minimal effort for the remainder of law school."
These comments, in turn, suggest an even bigger issue — namely, the extent to which the students' perceptions of the bottom line necessarily impact law school pedagogy. I am always disappointed when I students report they are taking a particular course only because they thought it would impress an employer or would help them pass the bar. But, because I have the luxury of tenure, it is easy for me to tell students not to worry about these matters. Orin's post and the comments should remind any would-be law school innovator that those innovations most attentive students' bottom-line attitudes are likely to be the most successful.
By way of introduction
My name is Elmer Masters and I am the Director of Internet Development for the Center for Computer-Assisted Legal Instruction, better known as CALI. For the past 14 years I have been involved with legal education and technology, first as a law librarian at Syracuse, then as the director of IT for Cornell and Emory. For the past 20 years CALI has been bringing technological innovation to legal education. My intent is to tap my experience and that of CALI to bring some thoughts and ideas about the function of technology in innovating law schools to this discussion. I am pleased to have the opportunity to serve as a contributing editor for the Law School Innovation blog and am looking forward to engaging the community on the many issues surrounding law school innovation.
October 29, 2006
Dean Larry Kramer explains why first year "works" best
I am pleased to report that Stanford Law School Dean Larry Kramer wrote me a note to explain his recent comment (which I questioned here) that the first year of law school "works" best. (Apparently, Dean Kramer tried to post a comment, but it did not go through.) In his note to me, Dean Kramer sent the text of a very thoughtful (and very long) e-mail he sent to his students discussing law school curriculum. Here is the first part of Dean Kramer's e-mail:
I. Ask any law school graduate what was the most significant intellectual experience he or she had in law school (that is, what really shaped their thinking, what stuck with them, what mattered most), and almost all will give the same answer: the first year. This seems to be true no matter what law school they attended, no matter what career they chose to pursue, and whether they graduated last year or fifty years ago. I spend probably half my time talking to Stanford graduates, usually beginning a first meeting by talking about their time here, and I get this answer almost 100% of the time. The first year, in other words, is the part of law school that really seems to work. The problem with legal education is in the second and third year and consists mainly of failing to keep students engaged by offering them something of equivalent educational and intellectual value to what they got in the first year. It is, from that perspective, puzzling to see not just Harvard, but most schools that think about curriculum reform focus all their energy on changing the first year.
A common explanation for this curious fact is that we need to focus on the first year because this is the only year when we have the students' full attention. But that, of course, is merely to restate the problem: *why* do we have students' full attention only in the first year? Why do we progressively lose them after that? What are we doing wrong in the second and third years?
That legal education's weak spot is in the later years is hardly a new insight. Last year, I toyed with the idea of building my commencement address around the first commencement speech given at Stanford Law School, by Nathan Abbott. I was unable to find his speech (no copy seems to have survived), but I did find some letters he wrote about legal education---including one from 1901 in which he can be heard already bewailing the fact that third year law students are disengaged. Everyone knows this, for it is true everywhere and has been true since the beginning of the three-year curriculum. By third year, perhaps even the middle of the second year, law students know the drill and find themselves less engaged and less interested in their classes.
II. To understand why the first year succeeds so much better than the upper two years, we need to understand what it is that law schools do in the first year. We are, for the most part, teaching beginning students to "play scales." That is, we are teaching the basic skill of "thinking like a lawyer": the art of legal problem spotting and analytical thinking that distinguishes lawyers and constitutes the heart of our discipline.
In theory, this skill could be taught with almost any set of legal materials. But we are doing something else as well that first year, namely, introducing students to a set of foundational concepts and building block doctrines that underlie every field of law---such things as intent, reasonableness, consent, injury, negligence, duty, and the like. We teach these concepts through a sequence of common law courses. This, too, is not absolutely essential, and there surely are other ways to teach the same concepts. But they developed at common law, and experience has shown that these common law courses are an excellent vehicle for teaching them to students. (Mark Kelman believes, and I'm inclined to agree with him, that these particular courses actually hold together in presenting a coherent overview of law. But that's a complicated idea that would take some time to explain. It may provide an additional ! justification for using these courses, but it's not strictly essential for present purposes.)
Learning building block concepts and the accompanying art of using them as a lawyer does is actually quite exciting and engaging. It is truly new for most students, which makes it challenging and fun, if sometimes anxiety producing. The learning curve is very steep, and first year students have a palpable sense of how much they are gaining.
Beginning in the early to mid-1980s, most law schools began to reform the first year curriculum. A variety of different approaches were tried, but all shared the idea that we could accomplish what I described above within a first-year curriculum that included more variety. Law schools remained committed to the idea that the first year should be built mainly around the basics, and no one has abandoned a first-year curriculum consisting mainly of torts, contracts, property, civil procedure, constitutional law, and criminal law. But many schools concluded that they could reduce the number of hours spent on those courses and use the extra time to introduce some other things into the first year.
More interesting than the question of what to offer in a revised first-year curriculum was whether to do so in the form of new requirements or as electives. There is an ongoing debate about what law schools should require and why they should require it. Some people see requirements as necessary to signal students about what is important. By requiring some things, the argument goes, we send a message to students that these are the subjects that really matter and that other subjects are of secondary importance. Since statutes are at least as important as common law, if not more important, it's not enough just to add a course on statutes and regulations in the first year. It must be a required course.
I've always found this argument singularly unpersuasive, not to mention insulting to the intelligence of students. We don't require the common law courses because common law is more important than statutory or regulatory law. We require the traditional first-year courses for the reasons suggested above: because experience has shown that they work well as building blocks to teach foundational concepts that students will need in all their other courses, whether these other courses are based on common or statutory law. Beyond that justification, however, I don't see much reason to have substantive requirements in the first year. Students are smart enough to figure out that they shouldn't graduate without some significant exposure to statutes and regulations, and I seriously doubt that many graduate thinking that common law is more important than statutory law. We should, of course, offer students advice and ! guidance on their course selection---and one of our main projects in the coming year is to significantly beef up the process we have for advising students. But law students should have as much freedom as possible to define their own course of study and to make their own choices about what they want to take. Hence, when Stanford reformed its first year curriculum many years ago, it shortened the traditional courses but did so in order to create space for students to take electives. We offer electives for first year students that fit the important categories, but we give our students freedom to choose how and in what order they want to build on the foundation established in the traditional first year courses. (As an aside, I do think it makes sense to have some broad requirements like a writing requirement and, perhaps, a clinical requirement, which are meant to ensure that students do certain types of work but leave them free to choose the content and! area of interest. There is, as well, a separate argument for re quiring legal ethics, which goes to our responsibilities to the profession.)
To be honest, in my view this sort of curriculum "reform" scarcely deserves the name. It may have some modest benefits in making the first year somewhat more varied---and it seems to do so without cost to the students' learning the foundational concepts of legal analysis and learning to think like a lawyer. Students get to start taking classes that fit their personal interests earlier but are still as well educated in the basics. So the reform has not *hurt* anything. But it has not solved or even addressed the real problem.
III. So what is the real problem? It is not just that students are less engaged in their second and third years. That is a symptom as much as a problem. The problem is that legal education has traditionally involved teaching one skill (thinking like a lawyer), and doing so for three years. The second and third year curriculum is thus best described as "more of the same." The fields of law are different, but what students do in their second and third year classes is mostly just what they did in their first year classes. There is, to be sure, a bit more variety: opportunities to take some seminars and write papers, and opportunities to do clinics and externships. But at most schools these are a haphazard feature rather than a systematic part of the curriculum, and the core curriculum remains focused mainly around doctrinal field surveys. Students take these other sorts of c! lasses to relieve the monotony or to have a chance to "do some good" or have some fun while earning their degree. They are not an integral part of a consciously constructed upper level curriculum, and for most students the upper two years still consist mainly of more conventional law classes, with a handful of alternatives thrown in.
Bear in mind, it is *critical* that we teach students to think like lawyers and that we do it well. This is, as I noted above, the heart of our discipline and profession and what sets it apart. But we do not need three years to do that. On the contrary, most of what we have to offer students in terms of teaching them to think like lawyers is exhausted after two years or less. (Here is another point that, when I make it to lawyers, invariably produces vigorous nods of agreement from the entire audience.) Not that students are yet good at it. It takes a career of actually doing it to become a good lawyer, much less a great one. But what we add by putting students through the paces in conventional classes drops off quickly after the first year and is exhausted well before everyone graduates. Students are still learning doctrine, which is hardly a waste. But they can pick that up easily in o! ther, more efficient ways. If that's the best we can offer, it's no wonder students begin to drift away.
Yet thinking like a lawyer is not the only skill necessary to be a great lawyer. Far from it. Knowing how to analyze helps lawyers help clients identify legal problems and avoid liability or secure a remedy when problems occur. But it doesn't help lawyers help clients solve the problems the lawyers have spotted. To do that, you need also to understand what the client does. And you need to know how to work as part of a team, one that most often includes non-lawyers, because that will be a critical part of your professional life after graduation no matter what you do. For example, a corporate client asks its lawyer about a particular deal and the lawyer says "no, you can't do this because the law won't allow it." Well and good, and the client should be pleased to avoid liability. But when the client turns and asks the lawyer to help figure out a legal way to do the deal, the lawyer wil! l need to know more than just doctrine. The lawyer will need to understand how the deal works, will need to know how to evaluate the risks and benefits, and will need to be able to work with the client to find a solution. This will be true no matter what the field, moreover, whether in the public or private sector, whether corporate law or intellectual property or environmental law or whatever. I cannot tell you how many people I have spoken to since becoming dean have said to me something like the following: "The problem with lawyers is that all they ever do is tell me 10 reasons I can't do what I want. I need lawyers who, after they've done that, can help me find a legal way to get it done.
What we need to do in the second and third years, in other words, is to polish off the skill set our students began to build in the first year while also helping them start to develop *other* skills they will need to be great lawyers. When I speak to alumni, I usually refer to this in shorthand as the need also to help our students "think like clients." But that's not a single skill, much less something that can be taught in a three- week session on problem solving. What it takes to solve a client's problem depends on what kind of law one is practicing and what kind of clients one is working with. An environmental lawyer needs a different skill set from an intellectual property lawyer, and both need different skills than lawyers who do corporate work or social services work or education work or biotech work. And so on.
Curriculum reform at Stanford is thus mainly focused on the second and third years and aims to address the shortcomings suggested above; in doing so, it will make the upper years a more varied, interesting, and professionally relevant experience for students. We will thus keep our first year roughly the same and preserve its strength (though we are exploring ways to improve the first year research and writing classes). And we want to be sure that students fill out their basic legal education in the second and third years by taking the classes necessary to be a well educated lawyer. Think of these as akin to distributional requirements, though we do not impose them as formal requirements: classes everyone should take, covering subjects every lawyer should know something about. Students should also take the law classes we offer in their particular areas of interest. But that is not enough to occupy more tha! n a second year, and we want to afford students opportunities to get a more three dimensional education in addition to this. Students who want a traditional generalist legal education may still get one, and an excellent one at that. But students who want a more varied legal education, one that will add new and different skills and tools of great value, will have opportunities to do that as well.
Post by DAB