Don’t Reform Law School; Abridge it

November 28th, 2011 at 2:47 pm | 34 Comments |

| Print

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to legal education (sometimes also called the case method, as in the article) and suggested that the casebook method is outdated and in need of replacement.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.

Recent Posts by Mark R. Yzaguirre

34 Comments so far ↓

  • ottovbvs

    According to two of my kids they worked you to death in year one. And could you pass the New York or California bar exams with just two years of study?

    • Anonne

      Yes, you could. Everything you need to know, you learn in the bar preparation course – in 2 months. New York in particular has 21 subjects that it tests and most people will never study half of them before the prep course.

      The basics – contracts, torts, civil procedure, criminal law & procedure, evidence, legal research & writing, professional responsibility – plus one year of electives and work-study internship plus the bar examination prep course would be enough to prepare for admission to the bar.

      It would also save $50k of expenses.

      • ottovbvs

        So where did you go to law school? In the meantime I’ll take it under advisement and consult with some sources who have taken said bars.

        • Anonne

          George Washington University Law. And I passed NY on the first try.

          As for California, it does not test as many subjects, AFAIK it only tests the basics – but it is rigorous and requires detailed, in-depth knowledge of the basics. You can’t bs your way through that exam.

        • ottovbvs

          Both my son and daughter passed the NY first time and my daughter also took and passed the CA bar because she couldn’t get a waiver. Both are considered to be the toughest in the country I believe. I intend to ask them both if they think that two years is enough.

        • Anonne

          My feeling that 2 years is sufficient for admission is because of the vast amount of continuing legal education available. And with work-study in the second year, it would provide some practical experience while allowing for specialization in certain subject areas.

          Yes, there are courses I wished I could have taken in law school, but it’s not worth the extra year and 5-digit expenses to do it. This one class, Quantitative Analysis for Lawyers – man, I wanted that class so badly, but it always conflicted with something else I felt was more important. But I just got several hours of that same kind of analysis while completing my mandatory CLE, which I only paid $300 for.

  • Solo4114

    I graduated law school in 2003. The old adage of scare/work/bore was generally true, but the casebook method was still valuable.

    That said, I think it’d be of FAR more value to actually put law students in a true legal setting in their third years as sort of an apprenticeship or practicum. The real adage that we stuck by was that law school doesn’t teach you how to practice law; it teaches you how to think like a lawyer. Schools would do far better to move away from the model of “churn kids out for big firm cannon fodder duty” and move towards giving them exposure to a variety of practice environments, practical experience, and a better understanding of what it means to actually PRACTICE law instead of sitting around thinking about it.

    • ottovbvs

      I thought that was what clerkships were for?

      • Anonne

        “Clerkships” is a term of art, typically referring to post-graduate work with judges at all levels, not internships prior to graduation.

        The real problem is that the dirty work of real world legal research, problem solving and writing is not done until one is hired as an associate after graduation, unless you get lucky enough to get a job that gives you actual responsibility in the summer months between school years. If you can find work for a busy small firm, that would be the best. But working for a small firm after graduation will not pay the big bucks to pay off your school loans, it will just make sure you pay your bills.

        • Solo4114

          Not just that, but also more practical elements like how to interact with clients, record time your billable hours, how to manage your time to remain productive, etc. You get a slight taste of that during summer jobs, but even then, you are (or at least used to be) busy being BSed by the firm, going to parties for summer associates, happy hours, etc. All the stuff that never happens during the day to day practice of law.

          There’s also the “Big Firms Only” attitude at a lot of schools, where they just churn out degrees to become corporate drones in a big firm, as if that is the apex of legal accomplishment. Some schools have gotten more involved in supporting public interest but even then, you can often end up with the world seeming like a choice between big firms and starving as a passionate-but-underpaid public interest attorney. There’s almost never any discussion or exploration of life in smaller or boutique firms, what that’s like, what it means as far as your day-to-day life, etc.

          As I said, you don’t learn jack about the actual PRACTICE of law on a day-to-day business. You learn useful, important stuff, of course — core skills in terms of analysis and research, as well as a basic understanding of overarching legal doctrines — but you really don’t learn much beyond that. Certainly, I didn’t in my experience. There are schools out there that at least try to emphasize third year practical experience, but that’s not the usual pattern.

        • ottovbvs

          It’s well known that law firms train associates on client’s dimes I think. Both my kids did clerkships for appeals court judges (they did internships as well) and found it valuable …not least in assisting them to get jobs thereafter!

        • Solo4114

          Right, that’s usually how it works. But that (A) presumes the kids can find jobs, and (B) still doesn’t prepare them for figuring out what kind of job they ultimately want. I live in Philadelphia and have several friends who went through law school here, graduating in 2009, and found the most apocalyptically bad legal job market in living memory awaiting them. We had a larger firm go belly-up here, disgorging several hundred lawyers at all levels of experience on to the job market, at the same time when other firms were tightening their belts, and the law schools just keep churning out graduates. The big firms where first year associates are billed at around $200 an hour and partners at around $800 an hour suddenly found that their business model was no longer sustainable, so they froze hiring.

          Meanwhile, these kids have been run through three years of a law school culture that pretty much assumes you’ll go to work at one of these places…or you’re on your own. Although, of course, they never really prepared you for what “on your own” means. And since you don’t actually know how to practice law, it’s not as if you can just hang your shingle and go to work. You need some kind of training. All while you’ve been saddled with the cost of something like $120,000 in tuition expenses alone.

          With all of that in mind, I’d say third year should focus on teaching kids to actually practice law and giving them core practice skillsets rather than yet more caselaw. By that point, you know how to read a case, and you can start to educate yourself on specific topic areas. But you don’t know how to actually be a lawyer. To me, that’s what’s missing in legal education.

  • Secessionist

    If America’s best legal minds have been trained using the existing method for decades, I don’t see a reason to make a change.

    Don’t mess with success.

    Closing law schools and drastically increasing admissions standards would be a better reform. This reform would cull the herd, eliminate the dross, reduce the pool of lawyers to a size the market can support and ensure only the best and brightest are admitted to the bar.

    Closing about half to 2/3 of American law schools would be a good start. Anyone without the smarts to compete for the remaining seats would be forced to seek another line of work.

    - DSP / Southern Populist

    • Carney

      But increasing standards and closing low-quality schools is going to have a “disparate impact” on you know who.

      • Frumplestiltskin

        “is going to have a “disparate impact” on you know who.” Do you mean the Jews?

        From NYT: The Columbia study found that among the 46,500 law school matriculants in the fall of 2008, there were 3,392 African-Americans, or 7.3 percent, and 673 Mexican-Americans, or 1.4 percent. Among the 43,520 matriculants in 1993, there were 3,432 African-Americans, or 7.9 percent, and 710 Mexican-Americans, or 1.6 percent.

        The LSAT results from these are right in line with white Americans and there is no way in hell Law schools are going to allow themselves to be white only institutions.

        Anyway, the idea of closing law schools is nuts. Yeesh, talk about being anti-Capitalist.
        Sad how some people are so against the market economy when it comes to Lawyers. If you can afford Law school and you can pass the bar who the hell is anyone to state that you can’t be a Lawyer?
        If the market can’t support too many lawyers, many won’t make a living and will migrate to other fields. That is the way the free market works, not arbitrarily deciding America shall only have X amounts of Lawyers. That is absolutely repugnant.

        • ottovbvs

          After his latest idiocy proved wrong AGAIN Carney disappears never to be seen again. At least on this thread.

      • Watusie

        “But increasing standards and closing low-quality schools is going to have a “disparate impact” on you know who.”

        I assume you mean the Monica Goodlings of this world? No great loss…

      • rbottoms

        N*gger, n*gger, n*gger.

  • lilmanny

    Two observations.
    Firstly, law schools have no motivation to abridge the term of study. They’re making a mint, the professors command large salaries, and the very nature of teaching in law school allows large student-teacher ratios, so you can make increases in the number of students without increasing staff. I totally agree with the premise, but unfortunately it will never happen. They see it as volunteering to lower revenues by 1/3.
    Secondly, to what Solo1414 says, law schools excel at turning out great law students, but little else. Great lawyers come to life in the practice and the best lawyers I know were destined to be great lawyers when they were 14.

    But, we agree, law school would be better if it were shorter.

  • PracticalGirl

    Law schools around the country are currently padding their “grad to employed” numbers by including any sort of employment-full or part time, legal field or other. Perhaps a number of law school graduates might avoid the entire tuition/debt burden if the law schools were required full disclosure on these numbers.

    • Diomedes

      Agreed. And that problem permeates outside of the law schools themselves.

      Many universities and colleges (especially the diploma mills), embelish the data to serve their purposes. MBA schools are eggregious offenders of this as well.

  • Diomedes

    I would argue that it’s the legal system itself that requires reform, not the law schools in general.

    Tort reform would go a long way towards ensuring less frivilous lawsuits appear in the system, clogging it up with nonsensical claims. An ending of the idiotic drug war would be a big plus. How much time do public defenders spend on having to deal with a minor drug conviction for a ganja smoker?

    • Graychin

      The endless and foolish “war on drugs” was lost long ago, and the continuing thrashing about in waging that “war” is expensive and foolish. Who could disagree?

      But if you examine real data rather than just listening to Rush, you would learn that the alleged problem of frivolous lawsuits is a myth promoted by corporate America and their errand boys in elected office. Corporate interests would rather that the courthouse doors are locked to the victims of their screwups. Wouldn’t you, if you could buy the politicians and propaganda to get away with it?

      Here is just one article on the subject of “frivolous” lawsuits, debunking the words of some guy named George W. Bush:

  • Stewardship

    The problem is more likely the Socratic method. If the prof just walked into the class room and lectured, “Here are the five salient points from today’s case,” instead of spending excess time calling on students and letting them wander around the points, it’d save a year and a half.

    • Anonne

      Waaaah, the Socratic method. Please. The Socratic method is just there to make sure you did your homework. Too many people stress out about the Socratic method. It’s not a big deal unless you rillyrilly hate public speaking. At which point, I imagine you’re not going to law school to actually practice in court.

      • ottovbvs

        When I went to undergrad college in late 50/early 60′s the socratic method was basically how I was taught (not law). I had a tutor, you went to lectures, were set papers, read books or researched, wrote papers, and then had them torn to shreds in individual or group tutorials. It was a superb system of learning.

    • Solo4114

      There’s nothing wrong with the Socratic method as a tool for learning. The problem comes when you’re spending an additional year on increasingly focused legal education which may or may not actually end up being the area in which you practice. I focused heavily on intellectual property issues in my third year. Now I practice in health care law focusing on regulatory issues. I still manage to work in some IP work now and then, but it’s not at all the bulk of what I do.

      On the other hand, when I came out of law school, I literally did not know how to dictate. A letter that I could knock out now in about 10 min probably would’ve taken me at least 30 to dictate back then. That’s a very small-scale example of not knowing what the hell you’re doing when you start practicing. I’m not suggesting that law schools have a course dedicated to dictation, mind you. Putting kids in more rigorous “in the trenches” experiences AS PART of their education and not merely ancillary thereto would produce better, more effective lawyers. That, of course, is not the goal of many legal institutions, though. They want to produce graduates and future donating alumni.

  • Chris Balsz

    Nothing stops you guys from forming your own law school. There’s plenty of small colleges and universities that would like to add one.

  • Michigan Outsider

    The required classes in the first year of law school cover most of the basic principles of how Anglo-American society is structured. You don’t get everything, but consider what you should study:

    Torts (when should compensation be paid for an injury to your person or property); Property (what can be owned and how do you buy or sell it),
    Contracts (how do you enter into an enforceable agreement with another and what happens if you don’t honor your agreements),
    Criminal Law (how and when society can or should punish someone for harming another),
    Civil Procedure (how do courts handle a legal claim), and
    Constitutional Law (how and what can the federal government do)

    The basic subject matter of these classes would be good for everyone to study although perhaps not with the case law method traditionally used by law school.

    But, if you want to practice law, at least if you want to handle civil or criminal actions, the case method is really the only way to learn what the law is. When you are out in the real world, and get past really simple questions (like what are the elements of a negligence claim), you can’t really find the answers in any single book. If you haven’t been learned taught how to deduce legal principles from cases and then articulate why your client should win under a rational applicable of those principles, it’s going to be hard to practice law well.

  • hisgirlfriday

    Three years of law school makes much more sense if there is a sizable clinical and writing component to the curriculum to balance out the core courses and electives so you get some practical legal skills outside of just learning how to pass law school or pass the bar exam.

    The practice of law would probably be improved if it was more like the practice of medicine if its teaching schools better blended the academic and practical aspects of the field such that you had both time at the beginning of learning the case method and then later on could gain practical experience in rotations. Like say you had a rotation of three months working at a big law firm, three months at a state agency, three months at a public interest firm, three months under a sole practitioner, etc… That might actually make law school a four year program rather than a 3 year but it would probably leave law students better equipped to make their way as lawyers and it would make law school better for all law students rather than the way law school is now with it working primarily for the top 10 percent that get the plum summer associate positions or judicial clerkships while everyone else is kind of fending for themselves (at least at medium to lower tier law schools).

    Unfortunately, this sort of egalitarian set up would make the big law firms less powerful and it would diminish the importance of the legal academia establishment that both benefit mightily from the status quo so it is highly unlikely any sort of change like this would be made. What a shame.

  • blueshark

    I think that most of the thoughtful comments above have already stated what I would have to add, but permit me to make a few comments. I think that there is a case to be made for both the case/Socratic method as well as more applied courses. At the first-year level, the case/Socratic method is, IMO, an excellent tool for teaching law students how to read case law to extract legal principles and arguments – which they will have to do as practicing lawyers – as well as to demonstrate to students the philosophical, historical, and societal underpinnings of the law. It should also challenge students to be able to argue and defend their ideas and to draw them out to do so – a good Socratic teacher does this well, a bad one is just being a bully.

    But there is also a case for more experiential learning -and those courses are commonly out there – trial advocacy (where you actually prepare and mock trial a case, often in front of a local judge), law clinics, externships, etc. One of the best courses I had in law school was “Patent Office Practice” where the instructor brought in a gadget on the first day and we had, over the course of the semester, to write a complete patent application for it, complete with FedEx addressed envelope, self-addressed postcard, everything required by the USPTO (except the check). Naturally, the PTO (the professor) rejected all our applications and we had to revise/amend our apps to overcome the objections. A worthwhile experience.

    So the courses are available, it’s more an issue of striking the right balance – which I think the author of the post is trying to say, but in a rather confused and overlong way. And for the record, I also support trimming a year off of law school.

    And judicial clerkships are a wonderful experience (I was both a federal district and appellate court clerk) but they are intensely competitive to obtain.

  • Law schools roundup

    [...] Law school without undergrad degree first? Many other advanced countries do it that way [McGinnis and Mangas, Northwestern dean Dan Rodriguez response, M&M rejoinder; ABA Journal on views of NYLS's Rick Matasar] Yet more on law school reform [Jim Chen via Caron, Caron, Mark Yzaguirre, Frum Forum] [...]