Saturday, November 19, 2011
The New York Times has another article on legal eduction, this time criticizing law schools for not teaching practical skills. The author bases his article mainly on discussions with law firms. While the article has some significant gaps, I agree that its basic message is correct--that law schools do not produce practice-ready attorneys.
First, the gaps. While the article mentions clinics, it ignores legal writing, which all law schools require, as well as advanced writing courses. It also leaves out other skills courses that some law schools have recently added, such as contract drafting and other transactional courses. It fails to mention the Carnegie Report or CLEA's Best Practices, both of which advocate more practical training. It doesn't mention the Legal Writing Institute, the Association of Legal Writing Directors, and other groups that have advocated change in the legal profession and held conferences where new approaches to legal skills have been presented. Although the article criticizes legal scholarship, it fails to mention that many of us in the legal skills area produce practical scholarship, as one can see from SSRN or posts on this blog.
Despite the above, more still needs to be done. Changes need to be made in first-year doctrinal courses. These courses should include miniskills, such as exercises in case synthesis, rule-based reasoning, reasoning by analogy, distinguishing cases, and dealing with ambiguity. (Law is more than analysis of single cases!) As I mentioned earlier this week, some first year courses, especially contracts, could include drafting exercises. As Scott Burnham has observed, "I find that, in fact, drafting required the same higher-level reasoning processes as case analysis."
The second and third years of law school should build on the miniskills learned in the first year. The NYT article mentions that lawyers coming into large firms do not know how to do mergers. Most law schools have courses in mergers and acquisitions. Why can't these courses actually teach students to do mergers and acquisitions? You should learn how to write wills in wills class, an estate plan in an estate planning class, and corporate documents in a corporations class.
Despite the efforts of the Carnegie Report, Best Practices, LWI, ALWD, etc., there has been and will continue to be resistance to change, both by law professors and students. Since we need to make changes in all law school classes, all professors will have to change their teaching methods, but I think a lot of this can be accomplished by a new type of casebook--a casebook that includes cases, skills exercises, drafting exercises, and practical problems. (Carolina Academic Press is starting to put out some skills-oriented casebooks, but we need many more.) Of course, we have to also convince our students to take these courses. While such courses might require more work on the students' part, they should also be more interesting.
It is well know that there is a law school crisis. The posting below this one notes that LSAT test takers were down 16.9% last month. Those law schools that don't adapt to new conditions may not exist much longer.
(hat tip: Ruth Anne Robbins)