December 10, 2012
Thoughts on Curricular Reform II: Teaching Materials
The 2007 Carnegie Report on Legal Education recommends that law schools do more to integrate the components of legal education.
Recommendation #1 ("Offer an Integrated Curriculum") from the executive summary of the Carnegie Report reads as follows:
To build on their strengths and address their shortcomings, law schools should offer an integrated, three-part curriculum: (1) the teaching of legal doctrine and analysis, which provides the basis for professional growth; (2) introduction to the several facets of practice included under the rubric of lawyering, leading to acting with responsibility for clients; and (3) exploration and assumption of the identity, values and dispositions consonant with the fundamental purposes of the legal profession. Integrating the three parts of legal education would better prepare students for the varied demands of professional legal work. In order to produce such integrative results in students’ learning, however, the faculty who teach in the several areas of the legal curriculum must first communicate with and learn from each other.
Recommendation #2 ("Join 'Lawyering,' Professionalism and Legal Analysis from the Start") is similar:
The existing common core of legal education needs to be expanded to provide students substantial experience with practice as well as opportunities to wrestle with the issues of professionalism. Further, and building on the work already underway in several law schools, the teaching of legal analysis, while remaining central, should not stand alone as it does in so many schools. The teaching of legal doctrine needs to be fully integrated into the curriculum. It should extend beyond case-dialogue courses to become part of learning to “think like a lawyer” in practice settings.
All of this suggests that curricular reform needs to start in the first year and that we need to re-design our first- year courses in coordination with our colleagues who teach legal skills courses such as legal writing, legal research and drafting courses.
So, how does one design a contracts course that can address these recommendations? Certainly casebook authors can defend their offerings as including practical exercises that supplement the study of case law with modes of learning that come closer to mimicking law practice than does the traditional case method. But it is difficult to work through those exercises effectively in the large-class settings that typifies the first-year experience. If you have 70-100 contracts students, you cannot readily sit down with them individually or in small groups to discuss their approach to problem sets or their attempts to negotiate a deal.
One way to bring more skills training into the first year is to integrate doctrinal courses and skills training courses. Drafting, negotiating, mediating, client interviewing exercises that are part of a lawyering program can be coordinated so as to relate to the subject matters of the first-year courses that are being taught at the same time. But that means that the lawyering projects have to have issues that are relevant to what is being taught at the same time in (say) contract and civil procedure or to criminal law and property.
If one is going to go this route, it seems to me, each law school is going to have to generate its own teaching materials. In the alternative, teams of legal scholars can create integrated curricular materials that they can then sell to law schools for adoption. Or perhaps a little of both. Perhaps a law school can develop a first-year curriculum for its students, and if it seems effective, it can then sell a license to other law schools to use the materials for their students.
In any case, it seems to me that existing casebooks are inadequate to meet the need for a fundamental rethinking of our approach to legal education. Mind you, I write all this as someone who is not fully on board with the Carnegie Report's recommendations; that is, as someone who, as I wrote in the first post on this subject, is actually quite satisfied that versions of the case method can be effective in the first year. But if legal educators are going to heed the call for fundamental reforms, we have to acknowledge that our current teaching materials are not up to the task.
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Law teachers who want to integrate practical skills into doctrinal teaching do not need to create their own materials. Publishers have responded to this need. LexisNexis has a practical casebook series, http://www.lexisnexis.com/store/catalog/catalog.jsp?id=cat80154
Carolina publishes the Context & Practice series, designed and edited by Michael Hunter Schwartz of Washburn. http://www.cap-press.com/p/CAP
My own casebook in the Context & Practice series is Current Issues in Constitutional Litigation (with Evelyn Tenenbaum). It focuses on practical materials to teach the constitutional and statutory doctrines necessary to litigate constitutional claims arising under the 4th, 8th, and 14th Amendments, under the 1st Amendment in the prison context, and the 11th Amendment defense. Here’s the link: http://constitutionallitigation.rutgers.edu/node/1
Like other books in the Context & Practice Series, every chapter places students in roles as practitioners handling simulated law practice problems. The casebook is structured around 15 law practice simulations that allow students to creatively explore how attorneys shape and apply doctrine.
Visiting, University of Pennsylvania Law (2012-13)
Clinical Professor, Rutgers School of Law-Camden
Posted by: sarah ricks | Dec 10, 2012 5:35:24 AM
Your casebook and the Lexis series look great, but I'm not sure they are sufficient. How does it actually work? How do you do effectively do practical skills training in a large classroom with 70-100 students? And what if the course is a first-year course? How does your casebook's approach (or that of others in the series) address the development of skills unrelated to litigation?
I am suggesting that, in order to effectively integrate skills and doctrinal training, it has to be done across the curriculum, and so you need teaching materials and exercises that do not focus on one doctrinal area. Much of the skills training would take place in a lawyering course (or whatever you choose to call it), and that course consists of exercises, simulations and writing assignments that relate to curricula in the doctrinal courses. That won't work, it seems to me, if the doctrinal instructors are still wedded to casebooks that focus on their own subject areas.
Posted by: Jeremy Telman | Dec 10, 2012 5:53:44 AM
Because, in addition to authoring the contracts text for the series to which Sarah refers, I recently published a law review article addressing your concerns, I am hoping you might look at the article. I believe that the research suggests students even learn doctrine better in the context of authentic law practice problems. Here's a link to my article: http://washburnlaw.edu/faculty/schwartz-michael-fulltext/2011-3elonlawreview27.pdf.
To answer your question about non-litigation skills, my contracts text includes about a half-dozen contracts and related problems so that my students can begin to develop contract reading skills. I do not believe you can teach students to be contract drafters while teaching contracts, but you certainly can teach students contract reading and evaluation skills, and you can have them draft contract clauses rather than full contracts to begin to teach them drafting skills. My text includes a half-dozen exercises that focus on drafting. I teach an 80-student contracts class.
I'd be glad to chat with you privately about this issue.
Posted by: Michael Hunter Schwartz | Dec 10, 2012 8:58:55 AM
Another resource that is available to professors is A Day in the Life of a Lawyer: Contracts (Aspen 2012) co-authored by me and Professors Longan and Sneddon. These materials consist of video vignettes of scenarios that arise in the daily life of a practicing contracts lawyer, accompanied by a comprehensive teacher's Manual with exercises to help prepare students for practice. The video vignettes address realistic scenarios that arise in the daily life of a practicing contracts lawyer, presenting issues of professionalism, skills, and ethics. It is an innovative resource for Contracts professors seeking to train students for “practice-readiness” and is designed to be used alongside a casebook or textbook. The comprehensive Teacher’s Guide includes notations of the targeted knowledge, skills, and values, discussion questions and answers relating to each scene, as well as exercises, including handouts, PowerPoint slides, assessment tools, and model answers for each scene. It is specifically designed to be used in contracts, professional responsibility, and lawyering skills courses, and is organized to adapt to varying professor needs and time frames. Additional information can be found here:
Sandra Day O'Connor College of Law
Arizona State University
Posted by: Susan Chesler | Dec 11, 2012 7:37:27 AM
There is also Bill Woodwards Skills and Values - Contracts supplement,that addresses another Carnegie report issue by integrating professional values and ethics issues into a series of skills-oriented contracts case problems.
Posted by: Alan White | Dec 12, 2012 4:33:23 AM
Folks, I recognize that there are a number of options if one wants to try to incorporate the recommendations of the Carnegie Report into a first year course. I adopted the Kunz and Chomsky casebook in part because it has a lot of problems, and I spent more time this year working through problems with my students in class than I have in past years.
But in my self-critical moments -- and I have not yet heard what my students thought about it -- I think that doing problems with my large group of contracts students in a group is no more effective that going over case law in a group. They have to do the work on their own, and someone has to go over their answers on a one-on-one basis if the exercises are going to be useful. And the exercises have to be comprehensive and systematic so that you can know that they are both learning how to work through problems (to "think like a lawyer") and learning the doctrine. The problem is not that the casebooks don't try to do this. The problem is that you need much smaller class sizes or a large pool of highly competent T.A..'s to take advantage of what the new casebooks have to offer.
That is why we are considering an integrated curriculum. Doctrinal issues raised in the courses are the basis for problems, simulations, exercises, writing assignments in the lawyering program, and the obligation to give feedback on those exercises is shared among the first-year teaching faculty. I am suggesting that, for such a curriculum, no teaching materials that are specific to a doctrinal area will do the trick. I may be wrong about that, but identifying good contracts casebooks is not an answer to the problem I am posing.
Posted by: Jeremy Telman | Dec 12, 2012 6:04:42 AM
Absolutely true that law schools must have curricular reforms and must follow all the recommendations stated above for them to produce more qualified and more competent lawyers.
Posted by: Vitiello Corder | Mar 16, 2013 9:10:51 PM