Monday, April 20, 2015
What Is the Place of Core Doctrinal Teaching and Scholarship in the New Curriculum?
When I was a law student, I knew what the core of my legal education was. It consisted of traditional legal courses like contracts, civil procedure, property, torts, constitutional law, criminal law and procedure, etc. In my second and third years, most of my courses continued to be core doctrinal courses. I had the option of doing a clinic in the third year, of course, and for some of my colleagues in law school, that was a central experience, but it was very much optional, especially since in those days, if I wanted real-world legal experience, I got it during the summers, and I could also work a bit during the school year. I don't think there was any doubt in anyone's mind that, for better or worse, doctrinal teaching was the core of legal education. Skills training was regarded as ancillary, and clinics were supplementary, or perhaps a capstone.
Today, I think the message is much more confusing. I have surveyed a number of websites of law schools outside of the top 50 and many push variations of the same themes: come to our law schools and we will give you a practical, hands-on experiential learning experience that will get you a job (or at least qualify or prepare you for one). If traditional doctrinal teaching is mentioned, it is usually in the context of bragging about small class sizes. These law schools do not generally emphasize traditional doctrinal teaching or scholarship.
This is completely understandable. Teaching contracts (and other first year courses) is not sexy. Since the first year curriculum is the same with respect to probably 75% of the subjects at all ABA accredited law schools, the folks who try to market individual law schools will not distinguish their institutions by emphasizing the things that all law schools do. They have to emphasize unique programs, and even if a school really has an outstanding doctrinal teaching faculty, such claims just come off as puffery.
But the problem is that students don't get much experiential education in the first two years of law school. So attracting them based on clinics and externships makes the doctrinal teaching that they get in the first two years seem, for some students, like some sort of ghastly hazing process. The situation reminds me a little bit of the Simpsons episode when Police Chief Wiggum confronts a new recruit who just wants a gun:
Chief Wiggum: All right, you scrawny beanpoles: becoming a cop is *not* something that happens overnight. It takes one solid weekend of training to get that badge.
Man: [screaming] Forget about the badge! When do we get the freakin' guns?
Chief Wiggum: Hey, I told you, you don't get your gun until you tell me your name.
Man: I've have it up to here with your "rules"!
My students don't want freakin' guns (or those that do already have them). They want their own freakin' clients. So when they reach the third year, or do externships in the second year, they think that those experiences are the core of their education and everyone should understand if doctrinal courses takes a back seat. So, for example, some students are non-plussed that their absences caused by clinical or externship obligations are not excused. Or they take it as self-evident that they can show up 15-20 minutes late for class because "a client meeting ran over." And this is not at all because clinicians encourage such attitudes. On the contrary. But students nonetheless pull this conclusion out of the ether.
I get it. In their position, I would do the same thing, but I had a job lined up as after my first summer, and my law school had a 95% or more bar passage rate when I graduated. Things are different in this era of declining bar passage rates. Clinical experiences are invaluable in all sorts of ways, but they do not seem to help with bar passage or with job placement. By the way, I am always surprised by the lack of a link between clinical education and bar passage, as I always assumed that students would really come to appreciate and thus be motivated to learn the law's subtleties when confronted with them in a live-client context. I have only come across a few studies, which tend to be small or idiosyncratic. I would love to see more empirical research in this area.
In addition, we are increasingly moving more skills training into the curriculum, both by devoting more time to skills courses and by introducing more skills training into the doctrinal programs. The candle is burning at both ends, and the class time devoted to traditional coverage of doctrine is shrinking. But the more worrying problem is that some students are unaware of how crucial doctrinal courses are for their future success. They may be led by our marketing efforts and our new curricula into the false hope that if they can actually "be good lawyers" in the clinical context, it could not possibly matter that they do not do well on traditional law school or on standardized exams.