The Law School Reform Panic

By Scott Burris

I am going to take a slight detour from health law to talk about legal education. This week the Times was all over a story about the need to drastically reform law school right now, and in the classic panic mode, one particular model was being embraced with the same unmixed faith with which a drowning person embraces a life preserver: cutting law school to two years. This was a main suggestion of the poster boy of reform, Brian Tamanaha.  I liked his book as a call to arms and expose. I learned, for example, that I was employed by one of the few schools that did not run up faculty salaries. What I didn’t like is the focus on cost: there’s probably a lot more wrong with law school than the price tag, and, in the absence of  evidence or even a serious theory, I don’t see how shortening law school would solve its problems.

Brian talks a lot about cost and time spent in school, and much of this discussion seems to me to assume that law school is mainly about training people to be lawyers within a fairly traditional conception of what the proper training for a lawyer should be.  He recounts disagreements, repeated many times over a century, between a “trade school” and an “academic” model. In the former, students learn the basic skills of research and writing (and we’d add nowadays things like interviewing and counseling and trial practice), while in the latter there is also some sort of additional training, or an approach to learning, that entails getting a broader understanding of the legal system.

I have attended one law school, an elite school, and taught at another, one of the “good value” schools he mentions. I am not entirely sure of the connection between what I have seen in these two settings and either of these models.  I am even less sure that either of these models reflects a very thoughtful (or accurate) view of what excellent training for a career in law would be.

I will concede that I don’t think a curriculum and pedagogy aimed at creating law professor/scholars meets society’s needs. There is probably something to the idea that engaged scholars of law bring something positive to the enterprise of law training, or could, but as an empirical claim that needs a huge amount of specification and evaluation. So let’s just focus on the trade school issue, by which I mean, ask ourselves what a law student needs to learn to go out in the world and use a law degree in practice or some other rewarding and socially useful way.

The key unexamined claim is that training to be a lawyer today requires pretty much what it has always required: learn how to find and interpret the law; learn how to express that information and interpretation in a variety of written and oral formats (memos, briefs, opinion letters, oral arguments); and learn how to move a matter through the system (procedure). That was the original stuff. In the past thirty years, law schools have put more work into classes, clinics and experiences that meet a few more needs:  learn how to work on one’s feet; learn how to glean information from a client; learn how to negotiate; learn how to behave ethically.  The idea that this is the main content of the trade school part of law is clear, in Brian’s writing, in his repeated suggestion that a better-value law school would use far more practitioners and retired practitioners in instruction. It is clear in the discussion of why legal education in law school can be taken care of with two years of classes followed by on-the-job training.

I don’t think anyone would take anything off this list. They might add some other things I have missed. But then, it seems to me, people who argue that three years of law school are too many have a lot of explaining to do. It may be that the third year as currently constructed is wasted, but that would be because our curricula do not systematically and thoroughly train students in this substantial set of basic legal skills. I personally have not found very many students who have mastered research, interpretation and writing after two years, but even if that can be done in two for most, there remain plenty of other skills that could be learned in the third year, and could presumably be learned more reliably and consistently (speaking of the entire population of students) in a school setting than in practice.

Take another look at the list, because, in my view, it is grossly inadequate and even with new skill courses, antiquated.  It is a list that would not have seemed odd to a law teacher or lawyer in 1920. It assumes either that there is nothing outside this body of trade skill that the lawyer needs to do her job properly (or at least start off in it), or that anything else needed will already have been learned in college or prior life, or that it  will somehow be picked up along the way.  Do we think lawyers will not do a better job with sufficient training in history and sociology to understand how social systems work and change? Isn’t a fairly sophisticated grasp of psychology, and particularly the array of cognitive biases we typically exhibit, essential not only for dealing effectively with clients and antagonists, but even for competently assessing a matter? Why do we think that teaching abstract analysis (albeit indirectly and ineffectively) is essential stuff for law school, but teaching how the brain really processes information, norms and values is not?  Don’t most lawyers need some basic non-legal skills, like how to read a balance sheet; how to evaluate scientific evidence for credibility and strength of causal inference; how to deploy cognitive and behavioral psychology in daily practice; how common medical technologies work; how to conduct basic economic operations like discounting; how to deal with the media; how to use computer programs to analyze information, including legal information?

That’s just a list off the top of my head. If we actually made a systematic research effort to figure out the skills and capacities used by law grads, there’s likely be a different (but no shorter) list of things beyond the traditional trade school curriculum.  If we are deciding legal education needs to be reformed, why, other than because we always have, would we return to the model of education of a bygone century?  Why would we pretend that the huge explosion of social and scientific knowledge of the past 100 years never happened? Why would we train lawyers to work alongside Bartleby the Scrivener?

And if we go the other way, and ask what a modern professional school for legal practitioners really needs to cover, would we imagine that dumbing down and shortening the curriculum is the way to fix the law school value proposition. I don’t think so.  If people are serious about revolutionizing legal education for a new society and market, they’ll jump off the two-year bandwagon and take the time to investigate the gap between what students know and what they need to know to be truly great lawyers and counselors. Given how much culture, business, science and our understanding of human beings have changed since Langdell, it won’t take a whole lot of effort to find ways to fill three years that students, employers and clients will be glad they paid for.

    11 thoughts on “The Law School Reform Panic

    1. Many of the classes offered have no direct relation to practice. It possible to make an argument that any subject offers some hypothetical advantage to the learner. However, law schools shouldn’t be seeking to merely offer a benefit, they should be seeking to offer the maximum benefit. See: Underwater basket weaving can help future attorneys learn to hold their and breath and keep cool under pressure, invaluable skills in a courtroom.
      Many law school courses stray far from the mark in terms of maximum benefit. What percentage of students in courses on sports law or international law ever go into practice in those areas. Courses like these serve as creative outlets for professors, but for the most part they are a disservice to the student population.
      The law school model is heavily derived from the system used by top schools such as Harvard and Yale. Top law schools produce a disproportionate number of professors who go onto teach at less academically oriented schools. The system these professors absorbed at their own institutions does not best serve their students. Most students will not go onto to become professors or judges. A narrowed focus, with an emphasis on real world training, would be best for most law schools. This could easily be done in 2 years. If the three year model is to be kept, the third year should be used for an internship or residency as in the medical model.

      • There is some truth in this, but only some. This is bot about basket weaving, but the actual skills lawyers use everyday. I mentioned persuasion; one could also talk about counseling and mediation as activities that one does better with proper training. We don’t expect lawyers to be psychologists, but it is equally simplistic to assume that we can’t (and needn’t) teach lawyers some basic psychological literacy. Sure, some people can learn that on their own, but if we take that to its logical conclusion, we don’t teach anyone anything. Overall, our education system suffers more from lack of ambition than from surfeit.

    2. We do need a positive change. I think that, a large part of the problem is that students are checked out and ready to start working by the time their third year rolls around- as the old saying goes: 1st year – they scare you to death, 2nd year – work you to death, 3rd year – bore you to death.

      As a 2L night student who works days at a large firm, I obviously don’t yet have the long term perspective to know what kinds of classes make great lawyers. I love my classes, but I can see every day the gulf that exists between practice and the academy. I’m looking forward to learning specialized areas of the law during my final semesters that would be much more time consuming for me to learn in practice, but I don’t really see anything else beyond this that 3L is good for. From what I can tell, cients want to purchase practical lawyering skills… that are learned in practice. I could be wrong, but I think that the prospect of a 2 year JD would be VERY popular among students.

    3. Scott, Law has gotten so much simpler since Langdell; I can’t imagine why we can’t lop off 1/3 of the curriculum.

    4. I think that some of the comments here are missing the point. I don’t believe Prof. Burris is saying that law school needs to be arbitraily maintained at 3 years or that the law is so complex that the legal curriculum cannot be condensed/revamped/truncated by 1/3. Rather the point is that a legal curriculum that trains well-prepared lawyers should include courses necessary for success in the workplace even if they do not traditionally fall within the boundaries of law. Coursework in Psychology, Math/Finance/Economics, Social Work etc. could all be suitably offered as electives or mandated to meet the needs of a sophisticated contemporary demographic. As a 1L, my ability to speak on the broader implications of a traditional vs. condensed curriculum is severely limited but I have been in the workforce before attending school and, thus, more attuned to the complexities and idiosyncracies of everyday transactions. In the same vein, some students trained in business or finance, are able to grasp some topics more easily. An empirical study of the practical skills necessary for the successful student’s transition into a successful lawyer should steer the future of legal education not simply the cost (or savings) or isolated aggregate data from observational case studies. It may be the case that a two year curriculum tied to a mandatory internship is the right model to achieve those necessary skills, or it may very well not.

      • This is a market argument, and it has some power — assuming that people/firms hiring new lawyers will actually put their money where their mouth is. Why pay for three years of training when you can get a good job with two?
        I wouldn’t bet on things playing out that way, though. Professions rarely prosper by reducing barriers to entry. Taking a longer view, I am concerned that we are too focused on short-term costs and benefits. My fundamental premise is that we live in a world in which there is more to know than ever, and more complex relations among forms and branches of knowledge. Our social software often seems not up to the task of coping with this, and that’s where the investment in education comes in.

    5. I am in agreement with Prof. Burris. Having had professional training in other areas prior to graduating from law school in 2004, I was very disappointed that law school took up 4 years of my time at night, with only superficial attention to important basics such as contracts and legal writing – legal writing was only worth 1 or 2 credits(!!!) and the rest of the time spent with electives as mostly filler courses. Endeavors such as moot court or law review required either auditions before fellow students, or a competitive crash drafting of a lengthy memorandum to see if you were worthy to belong to either elite group. Again, as a professional in two other areas, I was shocked that I had to convince other students – 24 year olds, to boot – of my worthiness to “join their club.” Development of these skills should not depend upon other students, but should be a substantial part of the curricula.
      Law schools should professionally train students to do trials, to address judges and juries, make legal research and writing the focal point of the curricula, make students do legal memoranda for every class, require a law review note before graduation, assure that principles of contracts, tort, constitutional law, property and other basics are continuously re-enforced every opportunity. Mr. Farmer, dean of Rutgers University Law School recommended today in the New York Times that lawyers be required to do a post-graduate year clinical residency prior to practice. A fabulous idea!! Students would emerge from law school with a level of competency and comfort, ready to be supervised to increase their wisdom and knowledge of the law, not occupied with procedural details. The bottom line is that law schools should care about the product they produce, however long it takes to produce it and stop being the mercenary, money making filtering system for big law, harvesting the top 10-20% of those with the very particular skills desired by law firms (fast reading and writing), leaving the rest of the students to manage ineptly on their own.
      One more thing: lawyers are intimidated by people who have additional education. I have discovered any consideration of issues that are not “legal” brand one as “not thinking like a lawyer.” But I have discovered that the inability of lawyers to understand the finer points in the fields which they dare to offer “legal” advice has resulted in legal losses. Regardless of popular opinion, the higher court judges (and smarter judges) also look to equity issues as well as legal ones, and it is in the mechanisms of psychology, sociology, business, accounting, medicine etc that the more refined points are found, and the more ingenious “legal” arguments are made.

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