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.

[JT]