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To reform or not to reform legal education?

By igorodetski

According to his recent article, David Segal of the New York Times would seemingly advocate for broad sweeping reform of law school curriculum. The centerpiece of the suggested overhaul would be to replace the emphasis on theoretical-driven coursework with courses emphasizing practical training or "lawyering."

David brings up an example of new associates at a law firm who couldn't answer the question "...when you close a merger, how does the deal get done?" The answer to that question was to draft a certificate of merger which then must be filed with the secretary of state. The author attributes this "deficiency" partially to the experience and focus of law school professors citing a 2010 study which found that the median amount of practical legal experience among law school faculty was only one year, and nearly half of those faculty members never even practiced law.

The NYT article explained:

Law schools know all about the tough conditions that await graduates, and many have added or expanded programs that provide practical training through legal clinics. But almost all the cachet in legal academia goes to professors who produce law review articles, which gobbles up huge amounts of time and tuition money. The essential how-tos of daily practice are a subject that many in the faculty know nothing about -- by design. One 2010 study of hiring at top-tier law schools since 2000 found that the median amount of practical experience was one year, and that nearly half of faculty members had never practiced law for a single day. If medical schools took the same approach, they'd be filled with professors who had never set foot in a hospital.

In both a commentary piece and podcast (approx. 41:00 minute mark) on ricochet.com, Richard Epstein, Laurence A. Tisch Professor of Law at NYU School of Law and visiting scholar with the Manhattan Institute, defended traditional theoretical teaching, arguing that in many practice areas and work environments "the only way to be successful as a lawyer is to know [a] large amount of material that the Times would think irrelevant."

Professor Epstein also disagreed with UC Berkley School of Law Professor John Yoo's assessment in his own commentary (which also mostly disagreed with the NYT piece) on the subject, that:

First year law students mainly focus on classic common law cases-in contract, torts, property, and criminal law, among others-in subjects that have not changed in decades. These are cases where judges have the power to "make the law" and the main method is using human reason to arrive at a correct result. The world, however, is increasingly dominated by statutes and regulations, where careful reading of texts passed by legislatures and administrative agencies is just as important as reasoning one's way to the "right" answer. Lectures on bargaining theory and negotiation could help in classes on contracts and on criminal law. Moreover, economics should become a more important feature in many classes, as it already has become in legal scholarship.

Epstein in his rebuttal stated:

These courses have evolved enormously over the 43 years that I have taught. The types of cases we teach have migrated from traffic accidents to mass torts, from simple contracts of sales to large cooperative arrangements and the like. The tools from law and economics, legal history and comparative law have reshaped the discourse. The constant need to show how statutes influence the formation and enforcement of contracts also takes a larger amount of time. These courses have been cut back, and that may be strictly necessary with the larger statutory courses. But it is also deceptive. One cannot teach environmental law without knowing the common law of nuisance well, and one cannot teach securities law without knowing about common law rules of misrepresentation and fiduciary duty.

Some put more emphasis and blame on student behavior. Commentary featured on Above the Law bluntly concluded:

Maybe law is the red-headed stepchild of American professional schools because law attracts the weakest applicants. Medical schools attract people committed to years of rigorous training, long hours, and low pay. Even business schools at least attract "bros" who are not afraid of "math."

Who does law school attract? Everybody else.

Full post as published by Point of Law on December 16, 2011 (boomark / email).