Intellectual Property Law

a late post on legal education

By Brett Frischmann

Last week, I was busy and so I tried to follow the discussion; in fact, I had a few discussions in “real space” with colleagues about some of the posts. But I did not post anything; so here goes, a little late.

It’s been a fantastic discussion on a wide array of issues. Deven noted in his concluding post that the idea was “many people with many views would mix it up and push the limits of what we know and think about legal education.” Well, I think that was what we got. And that idea itself seems to capture my basic thought on the future of legal education: diversity in approaches.

First, diversity in the approaches/strategies across law schools. One problem identified in the discussion last week seems to relate to herd behavior driven by US News rankings, perhaps even a drive to emulate the elite. But even some of the elite schools are questioning their approaches to legal education and can learn something from the non-elite schools. It seems rather clear, to me at least, that there is not a single “ideal” approach to legal education and that the societal ends that law schools serve vary widely. Of course, training students is at the core, but we train students for many different careers within the law and outside of law practice. All law schools lay basic foundations (and naturally some debate what those foundations should consist of), and what is constructed on top of the basic foundation varies across schools–as it should in my view. The foundation consists of generic capacities including skills, knowledge, values, and language that are essential building blocks; how should those blocks be adapted and refined? That is a tough question that can be answered differently by the students, their advisors, professors, current and prospective employers (the market, if you will), “the profession,” and various other interested constituencies too (e.g., other professions, government).

I am not convinced that any one of these groups is best suited to answer the question, however. That is, I am not comfortable relying, for example, on students as consumers of legal education (or on professors as suppliers, or firms as consumers, etc.). I suppose the way I have framed this reveals why I am uncomfortable–education is not solely a service produced within the context of a market; yes, there is a market for education services, but the structure and content of the services provided has broader social implications than reflected in the preferences of individual participants (whether students, professors, hiring firms, etc). And so, as we’ve done here at Madisonian and will continue to do here and elsewhere, we need to articulate and debate the contours, objectives and methods of legal education openly. As Deven highlighted, “The idea of what is the social vision of law schools has permeated many of the posts here.”

Second, diversity in the approaches/strategies pursued within law schools. I thought Nancy Rapoport had a wonderful post on “What kind of faculty would I want in the ideal law school?” Her post highlighted many of the attributes needed to support a diversity of approaches within a law school. What I mean by that is simply that not all faculty need to teach, write, and serve in the same way; in fact, it is probably better if they don’t. Variety in teaching means variety in the emphasis placed on theory, doctrine, analytic skills, professionalism, other skills (e.g., negotiation, drafting, argumentation, etc.), and it also means variety in method, style and presentation. Variety in writing means variety in quantity and quality — by quality, I mean type; of course we all want high quality scholarship. What each school aims for may be different, but the point is simply that there are many different types of high quality legal scholarship–whether theoretical, empirical, doctrinal, practical, comparative, interdisciplinary, some combination, etc.); whether in the written form of law review articles, peer review articles, university press books, casebooks, treatises, dare I say blogs?, etc.; whether presented at symposia, faculty workshops, interdisciplinary conferences, etc. Again, we can seek to rank and prioritize and give credit and various reputational prizes for different variants, and schools probably do and should take different approaches. As Nancy emphasized, engagement with scholarship is essential — how, why, which, in what form, etc. can and should vary within and across schools, I suspect. Variety in service means that faculty can contribute to the life of the school and the community in many different ways that should be respected and encouraged. Again, I could list the ways in which there is and should be variance in service within and across schools. But this post is getting a bit long and probably losing the reader. So I’ll stop and see if that spurs any thoughts.

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Full post as published by Madisonian.net on April 14, 2008 (boomark / email).