The New York Times published an editorial several days ago which discussed the need for reform of legal education in the United States.
This editorial took particular aim at the casebook method approach to legal education (sometimes also called the case method, as in the article) and suggested that the casebook method is outdated and in need of replacement.
Higher education reform and student loan debt are concerns of mine and I’ve written about them here at FrumForum, so I commend the New York Times for focusing on this issue. I think it is off-base, however, in suggesting that the casebook method is a major factor in the problems facing legal education.
The casebook method is the standard method for teaching law in American law schools. It entails the study of particular key appellate cases in a field of law to illustrate larger points about that field. For example, a contracts law class will focus on reviewing and analyzing representative cases in contracts law, rather than spend a lot of time looking at examples of contracts or drafting mock contracts. The idea is that students can gain a broader understanding of a particular legal topic by looking at how appellate courts deal with disputes on that topic. Statutory interpretation is of course part of the educational program, but the casebook method emphasizes review of statutes in the context of court decisions, not reviewing statutes in isolation.
I’ve been practicing law for almost fifteen years and I have a whole host of suggestions for improving legal education, but getting rid of or de-emphasizing the casebook method is not one of them. While it is true that the casebook system tends to focus on larger theoretical principles rather than the nuts-and-bolts of drafting documents, it is an effective teaching tool for encouraging law students to pick apart important legal concepts and to look at such concepts from multiple perspectives.
It is simplistic for someone to say “I just want to learn The Law”, because there isn’t a such thing as The Law (aside from obvious basic concepts, such as how you aren’t allowed to shoot someone–except of course when you are allowed to do so under some circumstances). Law is the interplay between legal statutes, legal precedents and the expectations of society, all of which change over time and become manifest in case law.
Looking at legal cases and how their doctrines have developed works to sharpen the mind and to train a law student to (I hate this phrase, but it actually has some meaning) think like a lawyer. A lawyer is likely to face many different issues over the course of their career and may change their legal specialty over time. It is necessary for lawyers to get a general training in how to look at the law from a broad perspective, rather than just be trained in how to file particular types of forms.
This doesn’t mean that legal education doesn’t need reform. Personally, I’d say that while the casebook method is a good teaching method, it doesn’t need to last for three years. Getting a law degree is already a graduate degree in this country and I don’t see why it should take more than two years of study. There is an old saying that in law school, they scare you to death in the first year, work you to death in the second year and bore you to death in the third year.
There’s a lot of truth to that saying, and shortening the degree program with an emphasis on a strong core curriculum (such as securities law or real estate law courses, not “law and” courses) would be helpful for getting law students out of school with lower debt burdens. Also, it would be beneficial for law schools to spend more time on legal writing courses that include non-litigation items like drafting of contracts and simulated deal closings as well as mock appellate briefs and other litigation-oriented documents.
There’s a lot that can be done to make American legal education more cost-effective and practical for students and useful for their employers. But I don’t see how attacking the casebook method will serve any real benefit on that front and it seems to me that doing so is an example of getting distracted by an ancillary issue. Which is what the casebook method is supposed to teach you to avoid doing.