Tuesday, May 1, 2012

Commentary on Rapoport Article

Yesterday, I summarized Changing the Modal Law School: Rethinking U.S. Legal Education in (Most) Schools, 116 Penn. St. L. Rev. 1119 (2012) by Nancy B. Rapoport. Today, I would like to offer some commentary on this important article on legal education.

I think that Dean Rapoport is correct that there are three types of law schools: the elite law schools, the modal law schools (the majority of law schools in the middle), and a few precarious law schools, which are having problems turning out students who can pass the bar and obtain employment. The importance of this observation is that we should not be having law schools that are all the same (like Yale), but rather have at least three different approaches to legal education, which are structured around the type of law students each type of law school generally attracts. While Rapoport rightly emphasizes the preparedness of the students, I would also consider the innate ability of the school’s law students (which Rapoport rejects), the region most of the law students are from, the saturation of law schools in the region, and the kind of law most students at that law school want to practice.

I agree with Rapoport’s comment that U.S. News is part of the problem since it rewards those law schools who are most like Yale. As I mentioned last week here, we need to either eliminate the U.S. News rankings or have dual rankings: one for scholarship programs and one for practice programs. Since I would rank all law schools in both categories, those that excelled in both would be rewarded.

I also agree with Rapoport that elite law schools need the least change. However, they do need to provide their students with some practical skills. Stanford and Washington and Lee have done this, so why can’t other elite law schools?

As Rapoport notes, precarious law schools need the most change. We cannot teach unprepared law students, like we teach students at Yale. It is the precarious law schools that would benefit the most by incorporating skills into doctrinal courses and having more skills courses. These law schools would also benefit by making their teaching more explicit. They should explicitly teach legal skills, such as rule-based reasoning, analogical reasoning, rule synthesis, distinguishing cases, and policy-based reasoning. They should also give their students more background in a doctrinal area before plunging into cases (like the casebooks in the Context and Practice series from Carolina Academic Press do). Students at these law schools need much more individual attention than those at Yale or Harvard. Every first-year student at a precarious law school should have an faculty mentor, who meets with each student several times a semester. Having required courses before matriculation is also a good idea.

The picture at modal law schools should look different than Yale, too. These students are going into practice, not politics or teaching, so they should be prepared for practice. They also need more explicit teaching and immersion in skills courses. Teaching students problem solving is vitally important.

As Rapoport mentions, we need to reward those teachers who are willing to take on the load of teaching skills. While furthering knowledge is important, students come to modal law schools to learn to be lawyers, not scholars. Those who do the job of preparing them should have the same status and pay as traditional law teachers.

As Rapoport mentions, teaching ethics and professionalism in first-year courses should be a significant portion of a law school’s mission. As I have said before, students will learn ethics better if they learn it in connection with the related substantive law (contracts’s ethics in contracts class).

Finally, as my co-blogger, Jim Levy, has mentioned several times (for example, here), law schools can distinguish themselves by doing things differently. Doing things differently could also help them avoid going out of business, as several commentators have warned (for example, here).

(Scott Fruehwald)


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