In his January 2010 column, Professor Charles E. Rounds suggests that the training of law students has suffered because of changes to the core curriculum, and he points to the banishment of the Agency course as a major failing. I agree that lawyers—and law professors—often do not understand the principles of agency and fiduciary responsibility that underlie so many basic legal principles, and that those failings may have played a part in the well-publicized and widespread failures of lawyers and boards of directors to advise and lead corporations to act properly.
But I believe Professor Rounds errs when he lays the blame for the cause of those changes in the core curriculum primarily at the feet of those involved with professional skills training in law schools. First, his Agency course began to vanish—rightly or wrongly—long before skills training began to assume a more prominent position in legal education. Furthermore, Professor Rounds seems to misunderstand the reasons why skills courses have gained ground in the past quarter-century, ground grudgingly yielded by the same entrenched interests in legal education that banished his beloved Agency course from the core curriculum.
Any examination of legal education must begin with the so-called “Socratic Method” in university-based law schools. It became the norm a long time ago, displacing one-on-one training in apprenticeships, largely for two reasons. First, it was promoted as part of a trendy “scientific” method of education. The idea was that the close examination of cases was akin to the scientist’s research, leading to the derivation of theoretical truths about the law. That was intellectual cover, however, for the real reason that resulted in the success of the Socratic Method and the growth of the modern law school: financial profit.
A small cadre of highly-paid law professors could teach huge numbers of students, who would pay dearly for the chance to become lawyers. Law schools became cash cows for their hosts, because other than faculty salaries, the only significant expense in legal education was the law library (something which is rapidly declining as print gives way to computer-based databases accessed via the Internet).
The curriculum in most law schools rarely reflects well-reasoned decision-making about pedagogy and training of future lawyers. The curriculum is the product of politics, resulting from the personal interests and desires of the entrenched faculty and reflecting the reward structure that law schools have put in place for faculty scholarship and the attainment of tenure. The self-interest is tempered somewhat by the American Bar Association (ABA) Accreditation Standards, which have historically paid some attention to the wishes of lawyers and judges. Surveys of lawyers, and serious scholarship about legal education, have repeatedly pointed to the need for law schools to graduate students who can practice law. The most cited study reported on a survey of law firm hiring partners, asked about the key skills needed by young lawyers; the top three skills were written communication (90%), oral communication (91%), and library research (92%). In American law schools, those skills are taught almost exclusively in Legal Research and Writing courses and in clinical courses.
Law school administrators and faculty members have opposed increases in the credit hours and staffing for skills courses for several reasons. First, skills courses are perceived to be more expensive per student when compared to the costs of a large lecture hall filled with students and one professor. Second, allocating resources to skills training cuts into the huge slice of the pie allocated to the existing faculty. And third, the faculty have refused to teach skills courses because doing so would require too much work and time (even if they have the abilities to do so, which most do not).
We all know that the teaching of writing, in any context, requires one-on-one attention and constant evaluation and feedback. It is precisely because the effective teaching of writing is so labor-intensive that traditional law professors have resisted every effort to have them teach in that fashion. Such faculty attention to students is absent from the typical law school course, where one professor can teach a hundred students and examine them once, with an exam at the end of the semester, after the course has ended (of course, that is the worst possible pedagogical technique imaginable). And law professors love the proliferation of so-called “boutique courses” in the upper-level curriculum, because that reflects the scholarship produced by a faculty increasingly divorced from law practice experience, particularly at higher-ranked law schools who hire almost exclusively from their own ranks. Such boutique courses, however, are the most expensive per student in the curriculum, because of the very small numbers of students enrolled in each course and the high salaries of faculty members teaching the courses.
On average, about half of each work week of a Legal Research and Writing teacher is devoted to individual student attention, such as the critiques of student work product and the conduct of conferences. This intensive teaching is not rewarded in most modern law schools; only the production of theoretical scholarship yields tenure and security, and the respect of one’s peers who are locked into the same mold. That’s why law schools have traditionally delegated the responsibility for intensive skills training to cadres of teachers who have been paid less, treated as fungible, and disposed of at will. Furthermore, those cadres have been largely female ever since women were grudgingly admitted to law schools in any number, starting when Professor Rounds and I began law school in the 1970s. As a male teacher of legal writing, I’m outnumbered 3:1 by female colleagues.
The ABA Accreditation Standards, which govern law schools, are largely the expression of the interests of traditional law faculties and law school deans, who are academicians, not practitioners. Those groups control the form of legal education to a degree most other professionals, such as physicians and architects and those who train them, would find astonishing. In response to these entrenched barriers to change, and the marginalization of skills courses and teachers, Legal Research and Writing teachers and clinicians created organizations to speak to power about the need to train our students better; over the past quarter century, these efforts have resulted in better training and more stability and security for those teachers, but we are still considered second-class citizens at many law schools.
Professor Rounds also errs in his column a second time, because he misunderstands the nature of the teaching that goes on in modern Legal Research and Writing courses. I found that surprising, because his own law school at Suffolk University has developed, over the past twenty years, one of the most highly-regarded and effective Legal Research and Writing programs in the nation. I’m further surprised because he says that to write well students need something “rational and coherent to express.” I agree with that statement, and so would every Legal Research and Writing professor in the nation, including those at Suffolk. Assignments in every Legal Research and Writing course are based in a highly-developed substantive context; these courses are no longer grammar courses or courses in mere citation and legal bibliography.
An example of this substantive context can be found in my own course. My students just submitted extensive appellate briefs addressing a problem about a psychiatrist’s duty to warn third persons about a foreseeably dangerous outpatient. They had researched three linked problems in state and federal tort law before that, and had drafted and rewritten three memoranda. These briefs address an incredibly deep look into the applicable substantive law, speaking not only to the entire range of case law within one state about privilege and confidentiality, as well as the duty to warn, but also about the jurisprudential issues involved with the separation of powers in that state, and the authority of the legislature versus that of the courts. My students are expected to know the relevant persuasive authorities from every state in the nation, as well as be familiar with the scholarly commentary that could be brought to bear on their arguments. Their briefs cite to well over a hundred authorities, and use them well. I agree with Professor Rounds that students must be able to connect the dots; students in modern Legal Research and Writing courses find those dots via their research and can connect them better than most experienced attorneys who never had such training in their own law schools. Then they communicate their understanding in a professional manner, to other professionals, which is the hallmark of a good lawyer.
For more about American legal education, and legal writing programs, the reader is referred to the following books and articles:
Robert J. Borthwick & Jordan R. Schau, Gatekeepers of the Profession: An Empirical Profile of the Nation’s Law Professors, 25 U. Mich. J.l. Reform 191 (1991).
Donna Fossum, Law Professors: A Profile of the Teaching Branch of the Legal Profession, 1980 Am. B. Found. Res. J. 501.
Bryant Garth & Joanne Martin, Law Schools and the Construction of Competence, 43 J. Leg. Educ. 469 (1993).
Jan M. Levine & Kathryn M. Stanchi, Women, Writing & Wages: Breaking the Last Taboo, 7 Wm. & Mary J. Women L. 551 (2001).
Patrick J. Schiltz, Legal Ethics in Decline: The Elite Law Firm, the Elite Law School, and the Moral Formation of the Novice Attorney, 82 Minn. L. Rev. 705 (1998).
Sourcebook on Legal Writing Programs (Eric Easton gen. ed., 2d ed., ABA 2006).
Robert Stevens, Law School: Legal Education in America from the 1850s to the 1980s (University of North Carolina Press 1983).