Required Reading

There's going to be some shaking, rattling, and rolling going on here over the next few weeks, largely centered on the oft-alluded to but little blawged about Section 3 discussion/characterization/critique.  I know a lot of blawgers have expressed frustration with their law school experience, especially those of you who are coming from the left, or, while centrist, entered law school with the idea that something about the legal system ought to be changed.

For those of you interested in the subject of law school reform, I'd like to begin by referring you to this piece by Duncan Kennedy which rather cogently identifies many of the problems in the contemporary law school experience. 

Comments

[ambimb]

Damn! The day before you posted that link, Duncan Kennedy's website registration apparently expired (according to a whois search). Wouldn't you just know it? I hope Mr. Kennedy gets the article back up soon. I read this particular essay last spring and loved it. I mentioned it near the end of this post, and there's a good bit of discussion of Kennedy and GULC's section three in the comments for this post. I can't wait to see what more you might post about Section 3 or alternative first year curricula, or critiques of legal education more generally. Perhaps Kennedy would allow you to post his essay on a Section 3 page or something so that it would be available again...

[ambimb]

Following up, I just noticed Kennedy's essay is also available here.

[Scoplaw]

AI – I remember those threads well, as they turned me on to Kennedy.

My personal critique of law school in general is pretty close to Kennedy’s (and probably your own) – passing through the legal educational system is the only way to practice law, and that system perpetuates a status quo that has all kinds of glaring problems.

More discretely, I think the casebook/socratic method is (beyond a certain point) a waste of time (certainly in classes of over 100 students). I’d like to see that replaced a strong and somewhat discrete focus on teaching skills in smaller classes, while the legal theory and black letter law could be presented in more of a lecture format. (Here’s an odd question – if the professors were really concerned with us learning the material, why make their own lecture outlines/notes available?)

Basically, I’d like law school to be structured in such a way to give me (upon graduation):
1 advocacy skills
2 a solid understanding of the legal system, both practical and theoretical (easy bar passage)
3 real employment choice via a manageable debt load

Does this seem unrealistic? It seems like the majority of law schools fail on at least 2 of these points. Who can graduate and hang up a shingle?

Right now there’s a loose critique of Section 3 by a coalition of students. While we don’t agree on every point (except that Section 3 is quite a large step forward) we’re all pretty skeptical of the elements of the program that bear the strongest resemblance to the typical law school experience.

There’s a lot of chestnuts out there (to crib from Prof. Kerr): that the LSAT, your law school’s ranking, and your grades are all legitimate proxies for evaluating your potential effectiveness as an advocate; the bland weight of tradition/ain’t broke argument; the touting of the (theoretical) effectiveness of the Socratic method despite reams of testimonial evidence to the contrary; the idea that it’s the student’s responsibility to “thread” their way through law school by selecting the few professors they politically “align” with; the shielding of bad teaching as “one of many teaching styles” or defending it by talking about “a professor’s intellectual freedom”; the idea that one must be ideologically unsettled to learn; the illusion that the system really is flexible and dynamic (despite its crushing uniformity) because there are incremental changes made across the years.

[Scott Scheule]

It would be interesting to read a defense of the current structure of legal school: a counterweight to the Kennedy article.

"Who can graduate and hang up a shingle?"

Perhaps the fault of law school instruction--though I doubt it, as these places are highly competitive and thus, likely pretty good at what they do. I'd imagine it's rather the effect of licensure--any class can inflate its own profits by finding ways to restrict those who can enter its ranks. And so the legal community, if you'll pardon the pun, raises the Bar, to the point where entry becomes difficult.

I suppose we all have things about the legal system we'd like to see change. I obviously favor a radical reconstruction of it and society at large, as I imagine many on the other side of the spectrum do as well--but I wonder if the initial purpose of Section 3 was to change the system. Or was it rather to simply change the way the system was taught? Was Section 3 meant to be anti-hierarchical? If that is the case, it would seem the curriculum would be clearly meant to be leftist in nature; and as evidence against that, I had no indication before arriving that Section 3 was to be more liberal than other Sections.

I chose it because I liked the idea of interdisciplinary approach--not because of my political leanings. Now there are of course ways to improve the Section, and ways in which people will doubtlessly be dissatisfied no matter what the current incarnation is (for reference, skim my blog, where you can find quite a few entries from the rightist viewpoint objecting to the current pedagogy). But were Section 3 purged of all the typical notions of meritocracy and hierarchy, I imagine one result would be a complete drought of rightist students opting for it. Perhaps that's the goal of Section 3--I'm not particularly well-versed on its history. But, that ignorance notwithstanding, my simple opinion is, in any curricula, one decidedly negative step would be the alienation of an entire branch of the political spectrum.

[Scoplaw]

Good points to consider Scott, esp. licensure. (I too would like to see a defense that moves beyond the anecdotal as well.) As an aside - how would you frame a market analysis of law schools in general? They are the gatekeepers, one can not practice law without going through them.

[swanno]

I've been considering this question of Section 3's political valence, and I'd like to think that a restructuring/evolution could be politically neutral. I, for one, am not interested in indoctrination in any way, shape, or form.

Maybe I'm naïve, but I think the goal of curricular reform should be to open up the avenues of debate and criticism, not to dictate a particular politically-charged outcome. Teach the tools, raise the questions, and let the students figure it out for themselves.

[Scott Scheule]

"(I too would like to see a defense that moves beyond the anecdotal as well.) As an aside - how would you frame a market analysis of law schools in general? They are the gatekeepers, one can not practice law without going through them."

The entity in control is probably not the law schools--there are far too many of them to really envision them working in some kind of oligarchic conspiracy towards the public. The culprit is probably, I imagine, the American Bar Association, which decides which schools qualify as acceptable law schools. The law schools thus, in order to be acceptable, suck up to whatever the ABA requires of them--otherwise they run the risk of losing their license. And this provides a reason for your complaint about the uniformity of legal education--they all are trying to meet ABA standards. It's typical: the government is granted power (and in this case, delegates power to another), and uses that power to cut down on competition in the market. The more non-competitive a market is, the less innovation we can as a rule expect.

Here's a related snippet from Milton Friedman's "Capitalism and Freedom."

Quote: "[after a substantial analysis of the medical field's restriction of entry into its own field] As an aside, the lawyers have never been as successful as the physicians in getting control at the point of admission to professional school, though they are moving in that direction. The reason is amusing. Almost every school on the American Bar Association's list of approved schools is a full time day school; almost no night schools are approved. Many state legislators, on the other hand, are graduates of night law schools. If they voted to restrict admission to the profession to graduates of approved schools, in effect they would be voting that they themselves were not qualified. Their reluctance to condemn their own competence has been the main factor that has tended to limit the extent to which law has been able to succeed in imitating medicine. I have not myself done any extensive work on requirements for admission to law for many years but I understand that this limitation is breaking down. The greater affluence of students means that a much larger fraction are going to full time law schools and this is changing the composition of legislatures."

The original copyright is 1962. It is extremely doubtful that the field has become more competitive with time. The ABA is exhibiting pretty much typical union behavior: a concentrated interest using its political sway to exploit diffuse interests.

As such, perhaps your complaint is aimed at only a symptom of a greater problem. If one could succeed in making Section 3 more non-typical, then the students would be less likely to pass the Bar, and thus the school would, I imagine, be less successful. As such, it's probably not in the administration's interest to change the curriculum, and I doubt they will in any significant fashion. Perhaps, as with us, we'll get a slightly altered presentation of legal history, but I can't imagine anything too radical being in the cards.

Of course, this is merely a loose analysis going from my spotty knowledge of the legal system. It is probably flawed, perhaps significantly.

[Scott Scheule]

"I've been considering this question of Section 3's political valence, and I'd like to think that a restructuring/evolution could be politically neutral. I, for one, am not interested in indoctrination in any way, shape, or form."

Nor am I, unless of course I'm the one doing the indoctrinating. This reminds me of my sophomore year History professor--the guy who turned me into a liberal. But even him I wouldn't charge with indoctrination. He presented his side--strongly--and I agreed with it at first, and then with time, disagreed with it. Perhaps I just question things more than most--I am after all an atheist and an anarchist--and so what others see as indoctrination I see as merely a slightly biased presentation.

As to whether or not restructuring Section 3 could or should be politically neutral, I think the answer to both questions is yes. It is perfectly possible to critique something as perhaps being outdated or ineffective, without invoking charges that it reinforces capitalism, or sexism, and racism, or something of that nature, topics with which personal politics are quite entwined.

"Maybe I'm naïve, but I think the goal of curricular reform should be to open up the avenues of debate and criticism, not to dictate a particular politically-charged outcome. Teach the tools, raise the questions, and let the students figure it out for themselves."

But that's not the point. The point is you're a pretentious snob, because who but you would take the trouble to put the umlaut on the 'i' in naïve?

For the most part, I think we are all given those tools. We are getting healthy doses of law and economics, but any of the Kennedy readings points out that liberals can probably use that field as successfully as conservatives. Feminist theory and CRT were given a week or two, which seems lacking, but to defend that choice, I can't really think of many significant applications of those theories beyond several narrow fields, none of which our current classes are covering. Add to any of our current classes the past CLS insights of indeterminacy and reinforcement of power conveyed by the system, and it seems that most classes are satisfactorily neutral, yet full of skepticism and provocation of thought. Contracts, Torts, and Property teachings are suffused with economic perspectives, but that is largely because those fields lend themselves well to economic analysis, whereas other classes do not.

For my part, I find most of our classes raising many questions, interesting and political ones, and for that I'm grateful. Even the teachings I despise, such as Government Processes, are presented in such a way that I find myself despising them in interesting and thought-provkoing ways.