Friday, March 9, 2012
Looking at other fields for ideas is one way to improve legal education. Yesterday, I posted about an article on changes in graduate medical education that I believe has many ideas that can be used in legal education.
Richard Neumann has recently posted a thought-provoking article, Comparative Histories of Professional Education: Osler, Langdell, and the Atelier, which compares education in law, medicine, and architecture and strongly criticizes aspects of legal education.
Abstract: "Almost simultaneously in the late nineteenth century, medicine, law, and architecture entered the university as subjects of serious study. But they entered in different ways and on different terms. This article traces the parallel histories of the casebook classroom, the teaching hospital, and the architectural design studio. The comparison shows how and why legal education diverged from norms being established in the other two fields. The divergence left legal education stronger within universities than it otherwise might have been, but it also left it relatively insulated from its own profession and vulnerable to later discontent."
Concerning the teaching of Contracts, Neumann declares: "The Contracts course today still resembles the one Langdell taught. It has little relationship to contracts as they are understood by transactional lawyers. Of the dozen or so chestnut cases that appear in nearly all Contracts casebooks today, about half teach issues that rarely occur in the modern experience of lawyers and courts." He continues: "Lawyers do, however, help clients create contracts. But students do not even learn how to interpret a contract, and they might be speechless if a client were to ask them what a particular contract provision means. Students do not study the inner logic of a contract; the permeating effect of standards and qualifications; the difference between a legal provision and a business provision; the differentiated ways in which covenants and conditions incentivize behavior; the effect of a contract’s assignability on its value; the comparative risk allocation efficiency of conditions, representations, and warranties; the reasons for obtaining simultaneous representations and warranties; the effect of the several ways in which representations blend tort law and contract law; the reasons why the law of remedies is almost always ignored by parties when resolving their disputes; or any of the other basic concepts needed to comprehend what contracts do and how they do it. Contracts students do not even read contracts, but instead only snippets quoted in cases."
Neumann also criticizes a faculty divorced from practice: "This represents the opposite of the Oslerian ideal — a faculty member who is simultaneously a first-rate teacher, researcher, and practitioner."
Finally, Neumann criticizes the "Langdellian Bargain." He points out that "Teaching would be so financially efficient that a profit could be generated each year. Eliot initially let Langdell keep the profit for law school use, but the bargain has since then evolved so that law school faculties and universities comfortably share the surplus." He notes, "It is not unusual for that percentage to equal one fifth to one quarter of the law school’s operating revenue, vastly exceeding the law school’s true share of overhead costs. In addition, the university typically will want a portion of the law school’s fundraising. Most law schools are thus operated by their universities as profit centers." (Emphasis added) He adds, "When a law school’s faculty, or even its accreditor, asks to see detailed financial records showing how much of the university’s share actually pays for the law school’s overhead costs and how much is treated by the university as profit, the university’s response rarely includes hard evidence that would clarify the matter." He remarks that "Law faculties today still consider themselves bound by and benefitting from this bargain, even though a transcript of a contemporary doctrinal class would typically reveal much lecturing and little Socratic questioning (which would have disappointed Eliot)." He concludes: "Whenever change is proposed in legal education, the threshold question is whether it would be consistent with the Langdellian bargain. If the proposal would significantly reallocate resources — either within the law school or between the law school and the university — in a way that would alter the bargain, the proposal fails because no one will voluntarily give up what the bargain has provided."
The above only scratches the surface of this important article. (You can read the rest of the article here.) I am especially impressed by Neumann’s discussion of the "Langdellian Bargain." You don’t see this discussed much in the scholarly literature. I am surprised the law school "scamblogs" haven’t picked up on it.