Tuesday, February 8, 2022
Pushing Back Against Langdell by Emily Zimmerman.
Legal education is dominated by the study of court opinions, which are the product of litigation. This focus on the law in the context of litigation can have detrimental consequences for law students. First, law students may come to believe that the vast majority of disputes are resolved by litigation, which is not the case. Second, law students may believe that the vast majority of law practice is litigation focused, which is also not the case. Third, law students may develop a warped view of the world in which situations and relationships (both business and personal) are destined to end in catastrophe and breakdown. This Article explores how legal education can remedy the tyranny of litigation, particularly during the first year of law school. In particular, the Article highlights the need for transparency with our students about the focus on litigation in the law school curriculum and the impact that such a focus may have on our students. We should remind students that most relationships do not end in litigation, most situations do not end in catastrophe, and most disputes are resolved in ways other than litigation. The Article also describes how engaging students in alternatives-to-litigation counterfactuals can help students develop a broader and more realistic view of relationships, dispute resolution, and the role of lawyers.