Monday, April 30, 2012

Nancy Rapoport on Legal Education

Nancy B. Rapoport has written an insightful article on legal education, Changing the Modal Law School: Rethinking U.S. Legal Education in (Most) Schools, 116 Penn. St. L. Rev. 1119 (2012), also available on SSRN.

She opens: "lawyers bemoan the inability of recent law graduates to ‘hit the ground running.’ They’re frustrated by the graduates’ failure to move from drafting competent memos discussing current case law to providing useful advice to clients. They’re also frustrated by the inability of most lawyers to write coherently, make persuasive arguments, and play well with others." 

She argues that "discussions of educational reform in U.S. law schools have suffered from a fundamental misconception: that the education provided in all of the American Bar Association-accredited schools is roughly the same." She notes that even the U.S. News rankings do this: " those rankings tend to reward schools that approximate Yale—the top schools that are highly selective in their admissions, with prominent and extremely productive faculties, and numerous career opportunities for their graduates." Rather, she thinks there are three types of law schools: "the elite, the modal [the majority of law schools], and the precarious." "They differ in terms of the composition of their student body and in terms of the opportunities that they offer for their graduates and faculty." She defines "a precarious school as one in which the graduates bear a significant risk that they will fail the bar exam and therefore be unable to support themselves as lawyers."

She is not concerned about students who attend the elite law schools: "Because the elite law schools do not need much ‘reforming,’ the better focus of reform would concentrate on the modal and precarious schools; however, both elite and modal law schools could benefit from some changes to help law students move from understanding the theoretical underpinnings of law to understanding how to translate those underpinnings into practice."

She remarks that "Most law schools provide a good education for their students and a comfortable living for their professors, but they don’t provide the same types of networking opportunities as do the elite schools. . . . if the modal schools are not going to offer better networking opportunities, then they should come up with some reason to justify their tuition rates. . ." One way of justifying tuition rates is better practical training: "Smaller law firms also have lost the opportunity to provide significant learn-by-watching training, and many government jobs throw their new employees into the deep end of the pool on their first day. As a result, if law schools don’t train their students, and employers can’t ‘afford’ to train them, then future lawyers will miss an important developmental stage."

Her main concern is the preparedness of the law students: "I view students who matriculate at the modal law school to have some level of preparedness but to need more coaching in the basics. And I view students who matriculate at precarious law schools as being akin to athletes who may have great potential but who have received little to no training in their sport of choice. Such a student is going to need coaching in all of those skills that he missed along the way."

Speaking of modal law schools, she writes, "But the education at these schools could be much better if the professors were willing to acknowledge that they are teaching students with backgrounds markedly different from their own." She points out: "Very few law schools spend the time to analyze the career paths that most of their graduates take and calibrate the curriculum accordingly in order to provide their students with the best start for their careers. These schools are missing an opportunity to distinguish themselves from the Yales and NYUs; instead, they’re doing their darnedest to mimic them." She asks: "Graduates of most modal law schools won’t find the doors of opportunity pushed open as wide as they are for graduates of elite schools, so why not train them so that they have an edge when they’re competing with the elite-school graduates?"–so they are prepared to hit the ground running and solve their clients problems.

She then discusses the resistance to adopting new approaches to legal education, which results in the "lock-step" model of current legal education. She asserts that "This lockstep model suggests—at least indirectly—that law is an end, rather than a means to an end. For faculty members, perhaps the law is an end in itself. But for the clients of our law school graduates, law is just one tool for lawyers to use to solve their clients’ problems."

Concerning precarious law schools, she avers, "Just as a wholesale revamping of education at the elite law schools is not a pressing need, maintaining traditional educational programs at precarious schools is also a bad use of time and resources." She thinks that "open" admissions is a good policy. However, "the real issue is the disconnect between the promises that these law schools make to their students and their inability to fulfill those promises. At these precarious law schools, too many of their graduates fail the bar exam, giving the lie to the claim that these law schools give their graduates ‘opportunity.’ Opportunity for what? To incur significant debt without a way to pay it back? To read about six-figure starting salaries when the median starting salary for graduates of their own school is dramatically less?"

She asserts, "And when I say ‘change,’ I mean "change dramatically." "[P]recarious schools should figure out a way to provide their students with the preparation that they lack. Maybe they can provide it by starting a semester early, with that first semester devoted to catching up on preparation. Maybe they can do it by requiring prerequisites for matriculation. But they need to do something, or too many of their students will fail the bar and won’t find law jobs." She adds, "Unless the ABA puts teeth in its standards [concerning bar passage rates], precarious law schools have nothing to fear."

She maintains, "With the right changes, schools could move from the precarious cluster to the modal cluster." However, until they do so, "we should stop pretending that these schools are equivalent to the modal schools. We’re talking about apples and anvils here."

She then focuses on the modal law schools: "If we focus on the education that we provide to students enrolled in these modal schools, we could affect a significant number of students. First, though, we must recognize another misconception: that students come to a modal law school with any sort of deep understanding of how to think critically." She then laments the state of undergraduate education: "But we’re also seeing students with much weaker, less expansive educational backgrounds than we saw even fifteen years ago. We’re seeing students who write less ably, who are more gullible about the credibility of references in their research, and who don’t understand the link between what they’re learning in law school and what lawyers do." She remarks: "Instead of our legal writing professors teaching high-level rhetoric and analysis, they have to do a fair amount of remedial training in basic writing skills. That leaves less time for training in the type of analysis and writing that good lawyers must learn. If students can’t write well, they can’t think well. If they can’t think well, they can’t reason well. If they can’t reason well, they can’t solve problems well. And that means that they can’t become good lawyers."

She mentions that one of the problems in the legal academy is the distinction between doctrinal professors and skills professors. "Students can’t become good lawyers without understanding what lawyers do, either. There is a nasty distinction in the legal academy between those who teach substantive (‘podium’) law and those who teach ‘skills’ courses. The podium professors tend to have more prestige, more job security, better salaries, and fewer job responsibilities. The ‘skills’ professors have to evaluate their students more frequently than once a semester, and their subjects convey quite directly what ‘real lawyers’ do. Legal writing is not intuitive: it takes training. So does live-client representation. Although it’s true that one can’t be a lawyer without knowing substantive law, one also can’t be a lawyer without the ability to understand (and deliver, within the bounds of ethics) what a client wants and needs. . . . and ‘skills’ courses come a lot closer to teaching the integration of these other approaches than do ‘podium’ courses. " She declares: "it’s criminal to send the graduates of modal schools out into the world—where they’re more likely to work in smaller firms or as solo practitioners—until we’ve given them the skill sets necessary to avoid malpractice."

Concerning the solution for modal law schools, she asserts, "But we could do much more to teach our students that law is merely one tool in the lawyer’s quiver. Lawyers solve problems—or, if you prefer, lawyers solve conundrums." Students can learn valuable skills in podium classes by being taught that cases are about people and their individual problems and that people have different points of view. She observes, "We could pause and examine a case not just from the point of view of discerning the appropriate law but in terms of what engendered the underlying dispute." Other solutions include teaming up with colleagues from other departments or practicing lawyers and encouraging new types of textbooks that "integrate some real-world materials either as lead-ins to the discussion of cases or as stand-alone methods of teaching a subject."

Another solution for modal law schools include requiring "students to take certain courses to bring them up to speed before matriculating." (She notes that medical schools and business schools already do this). She continues: "The faculties on most modal law schools will push back at the suggestion of prerequisites, arguing that ‘if Yale doesn’t require these courses, why should we?’ But the time for the pretense that all law schools should be (or could be) Yale is long past."

Law schools also need to teach students professionalism: "I’m a big fan of ethics in all podium courses." She points out, "I think that the modal law schools’ failure to teach the transition from knowing the law to using the law is partially responsible for the tendency of some lawyers (even some experienced ones) to use the law inappropriately. Just as some law students will graduate with the mistaken assumption that all arguments are equally "good" and that lawyers should make all arguments (even the silly ones), some lawyers will continue to think that because the law lets their clients do something, they should facilitate their clients’ wishes every single time." She argues, "If we want to train our law students to give good advice, we should also train them to avoid fooling themselves into making their own bad decisions."

She concludes: "Some modal law schools are experimenting, too, but most modal law schools are still afraid to experiment because they’re afraid of differentiating themselves from the elite schools. They’re afraid of losing status. Because modal law schools can’t offer the networking advantages that elite law schools have, they should instead offer an education that relates more specifically to the careers that their graduates are likely to have. . . . But they need to stop chasing the tails of the elite schools. There’s room in legal education for a variety of models, as long as we recognize that every law school should have a curriculum that meets the needs of its own students."

Some commentary tomorrow.

(Scott Fruehwald)

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