Today’s New York Times has an excellent article on the flaws of many law schools and law professors by David Segal. I wholeheartedly agree with nearly all of the critiques.
But I don’t like Segal’s failure to discover professors, programs, and classes that in fact are teaching students to be great lawyers. There are many of us, and we have made serious headway in reforming the old Langdell model of law teaching. I emphasize great lawyers, because Segal allows his interview subjects to frame the debate in terms of the tired and false dichotomy between “trade school” apprentice approaches and “best and brightest” academic research enterprises. The former emphasizes clinics and legal writing programs, and is caricatured as just teaching students the administrative and ministerial aspects of lawyering–law as a “mere trade.” The latter emphasizes doctrinal and theoretical classes, and is caricatured as “chin stroking” theoretical work untethered to the banalities of law in the real world.
True, there are many legal academics who fall squarely into one or the other of these camps. And many of them do marginalize the contributions of those in the other camp. Some accept, or even encourage, the existence of both camps as complementary parts of a legal education. But others, like myself, strongly reject this segregated approach to legal education. In part this is because–like the old notion of racially segregated facilities–they are not “separate but equal.” Rather, as Segal correctly points out, clinics and clinicians are treated as second class citizens–if not officially at least in practice and in perceived prestige. But it is also a problem because it presents practice and theory as disconnected enterprises for law students.
We can be better than this. Law schools can be centers of teaching and research on applied theories and methods of law. Whatever inferiority complexes law professors might have had in the past about not being “academic” enough (as Segal accurately documents) are nonsense in the modern research university. Under this antiquated thinking, the schools of engineering, medicine, business, art, music, design, and architecture would not be “academic” enough. But there is no serious debate over whether those schools should be allowed in a modern university. And there should be none over laws schools’ place in the university–unless we fail to change and present a coherent applied theory program of teaching and research.
So what can be done? Plenty. And the good news is that much of it has already been tried, tested, and successfully implemented. I’ll talk about some specific things that I and my “doctrinal” colleagues at UW Law have implemented below. In other posts, I’ll talk about how to integrate the doctrinal and clinical aspects of legal education, as well as systemic changes that need to be made in hiring faculty, incentive/reward systems, and law reviews.
1. Let practice examples drive theoretical and doctrinal discussions. First year classes such as Contracts can be based on examining and drafting actual or rich hypothetical contracts. My UW colleague Jane Winn does just this. An enormous store of existing and new actual contracts across a wide range of issues is available through corporate filings on the SEC’s EDGAR system. Upper division classes such as Business Organizations can be based on learning how to choose the right legal business entity for a proposed new business and then drafting the appropriate organizational documents. You can also use documents from existing businesses, often again available through EDGAR. I have always taught Business Organizations this way, as does my UW colleague Dwight Drake. These exercises get students to think concretely about what is involved for the parties in these matters. Assign them to different positions–including affected third parties–and invariably you will get a lively dialogue that starts generating some heavy policy issues.
2. Stop focussing exclusively on “issue spotting” and “policy” and the traditional law school essay exam format. Many standard law school courses present law practice as if spotting issues–essentially diagnosing the client’s legal situation–is enough. This would be like training medical students to simply diagnose a patient’s ailment but not treat them, or at least even propose a plan of treatment. Law professors and students alike know this is not true, but many professors do nothing in the standard class format (“Socratic” or otherwise) to present and teach the “treatment” side. The bizarre longstanding practice of a single issue spotting final exam as the sole grade assessment tool for an entire course cements the focus solely on “diagnosis.” And in the standard essay form, the questions are posed such that there is no one correct answer, but rather the student could plausibly argue either side of the issue. In fact, the exercise is not about giving the kind of “answer” the lay person would expect to a legal question. Instead it is simply to see whether the student recognizes that the issue exists in the “fact pattern” and can give the basic pro and con arguments about how it should turn out for that fact pattern. To make this even more preposterous, these exams are often closed book, meaning that the students have to use unaided memory to give their final answer about a client’s legal situation. Do you know what this is called in the real world? Malpractice.
3. Introduce focus on forming and executing legal strategy and tactics in the relevant litigation, transactional, or regulatory format. This is the “treatment” side of legal practice. So, yes, we still need to start with issue spotting so the students can learn how to “diagnose” the client’s legal situation. That should take the course up to a first quiz or midterm (heaven forbid we use more than one grade assessment tool!). But after that we need to teach them the next steps. And this can be an incredible platform from which to teach theory, doctrine, and policy. When the students have to propose and try to execute on a legal plan of action they can’t just fudge it as in the issue spotter exam format. They have to base it on real legal practices–and perhaps even create new ones.
4. Add true/false, short answer exam questions, and brief essays that actually have a correct answer. Students taking a course from me for the first time can be shocked that the majority of their test grade will be generated from questions that have a correct answer. I am supposed to be teaching them the law. This is the best way I can think of to determine whether they know it. Yes, I am also supposed to teach them how to “think like a lawyer.” But I would rather teach them how to practice like a great lawyer. So I also give them questions from the client’s perspective and require that they answer them succinctly and in layman’s terms. The usual context of these questions is that the client has proposed some course of action and is asking the student whether it is “legal.” The premise is that the client is going to take the action if the student says it’s OK. Get it wrong and you’ve probably screwed your client, either from allowing them to do something illegal or preventing them from doing something perfectly legal.
5. Use a course-long hypothetical, simulation, and/or business school style case study. In law schools we use the “case method” and discuss “cases.” But they are not what many lay people would expect. And they have almost no resemblance to business school or other professional case studies. Our cases are largely appellate court decisions that focus on abstract points of law. The facts are relevant only to the degree that the question is whether the right points of law were correctly applied. Our case method seeks to teach students how to summarize the facts and “holding” (legal decision) of the case, and then to synthesize an abstract legal principle from a series of specific holdings. This is all useful and fundamental–up to a point. Say, during the first semester of the first year. But it is insufficient even to train students to be great litigators. And it is wholly off point to teach them how to be transactional or regulatory lawyers. I don’t use the case method. I rarely even go through cases in great detail, or with the standard Socractic dialogue technique (strict or modified) that is still a standard of law school classes. Instead, I use a course long simulation for nearly all my classes that focuses on either a real or hypothetical business venture. I introduce the characters, their motivations, and the proposed venture. The course then tracks the factual issues that come up for the characters and their venture. The students have to figure out how to counsel the characters and execute on plans of legal action. In some courses, the students role play the different characters. Negotiation and drafting of documents is central. Further, where deals are involved, the actual closing of the deal must be simulated too, not just negotiation or some drafting. Courses I teach this way include: Business Organizations; Biotechnology Law; Venture Capital Deals; and Securities Regulation. Finally, if the course is not amenable to a course-long hypothetical, the use of shorter case studies is still very helpful.
5. Build towards capstone classes or clinics that integrate different law subjects and get the students in front of live clients. Even though I had introduced a nice array of “experiential” elements into my regular courses from the first time I began teaching in 2001, I still felt that I could not get the students fully to where I wanted without introducing live clients. So in 2005, I tested a new kind of clinic–the Entrepreneurial Law Clinic–and in 2006 we launched it full time. Colorado Law had also launched an identically named and similar clinic around the same time, supporting the notion that good ideas often percolate up from multiple sources. UW ELC acts as a capstone because we integrate IP, corporate, and tax students to work in teams with MBA students from the UW Foster School of Business to cover the full range of legal and business issues new companies will face. Live clients bring in not just the crucial element of reality, which drives the students to higher levels of active engagement, but the equally crucial elements of unpredictability and human interaction. Students must learn how to manage projects and build relationships.
6. Teach students how to see the big picture and act as general counsel or beneficial consiglieri to their clients. A number of schools have introduced “deals” courses which take the students through negotiating, documenting, and closing a deal. They may have introduced other transactional theory and skills courses as well. But few, if any, have focused on how to train students to be the trusted advisor and legal strategist that clients are really looking for. Clients don’t just want “hired guns”–although they often think of their litigators that way. But for the day-to-day, ongoing, and especially high level business and legal strategy involved in launching or running a business, they want someone who truly understands their business, knows enough about the range of legal issues that might come up, and can work with them to create realistic, pragmatic blended law and business strategies. This is an incredibly fun and rewarding kind of legal practice that I still actively engage in. It can take a lot of experience and (hopefully) wisdom. But the basics of it can be taught. This idea animates my Bio-entrepreneurship and the Law, Law and Entrepreneurship, and ELC classes.
For more on teaching ideas that I have implemented and which directly address Segal’s critiques, you can look at the following publications.
Navigating the Issues of Multidisciplinary Student Teams Serving University Spin-offs, in Gary D. Libecap et al., eds., Spanning Boundaries and Disciplines: University Technology Commercialization in the Idea Age (vol. 21, Gary D. Libecap series ed., Advances in the Study of Entrepreneurship, Innovation and Economic Growth Series) (Emerald Books 2010). Working paper version here.
Teaching IP From an Entrepreneurial Counseling and Transactional Perspective, 52 Saint Louis University Law Journal 877 (2008). Working paper version here.
How to Build IPR-Focused Entrepreneurial Law and Business Clinics to Assist Regional and Economic Development Around the Globe (International Intellectual Property Institute, Washington, D.C., 2008).