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Saturday, July 10, 2010

What do law students want, and what should they want?

Our buddy Bernie Burk has been talking with us about this post (see here) by Howard Wasserman over at PrawfsBlawg.  (You'll want to read the comments to the post to get a feel for how passionate the debate about theory vs. skills can be.  You'll also want to read related posts, here.)  Here are three of our favorite comments to the post:

. . . It is true that there is not one thing that all law students want. But, there is something that about 90-95% of law students want, which is to be able to practice as a minimally competent attorney when they graduate.
Yes, professors have different strengths and weaknesses, but that doesn't mean that it shouldn't be the norm to have students read pleadings and have a drafting exercise. If your weakness as a civil procedure professor is that you're not good at drafting or analyzing pleadings, you probably need to reconsider your career.
If you don't understand mechanical things such as discovery, that's not an excuse to only teach theory. Get up off your ass and learn the basics of the subject matter you're teaching.
Posted by: BL1Y | Jun 18, 2010 11:07:47 AM

BL1Y really does have a point. "Student-centeredness" in no way presupposes that there is "exactly one right way to teach any law school class." What it does (or ought to) mean is that a teacher needs to take into account the needs (intellectual and practical) of his or her students, not focus on what he or she imagines that she does, or likes to do, best. What students think they need may not always be what the teacher thinks they need. That's what makes you the teacher. But one ineffective way of thinking about what students need is to think about what you like about yourself.
Posted by: Bernie Burk | Jun 18, 2010 3:16:58 PM

Vladimir and BL1Y:
Interesting discussion. Here's a view from a long time practitioner AND law professor (me) interested in highfalutin' theory (that is, given my odd background, I think I could teach a jurisprudence class, a trial skills class, and a transactional skills class.)
How the legal academy came to its present configuration wasn't the result of some logical exercise, but a matter of historical happenstance. That's not uncommon. Most intractable social and political realities arise that way (see Northern Ireland or Israel-Palestine). The reality now is that you are both correct in your fundamental observations: there IS a gap between what most law students want (unless they go to Yale) out of their educations, and what most law professors want out of their careers. It may well be that something like the financial crisis of the last couple years, and the shrinking of big law firms engenders a complete restructuring of the legal academy into a Ph.D. like "department of jurisprudential studies" with its place in the College of Arts and Sciences, and more trade school like professional schools, but I doubt it for two reasons that undercut both polar positions.
1. Law professors can't merely be theorists and have their gravy train survive. What allows so many law professors to engage in theory is the fact that their students who have little such interest fund the theoretical pursuit. First, law schools are notorious cash cows. When is the last time you heard of anyone organized a proprietary or for-profit sociology department? The cost of providing the education, unlike in the hard sciences or med schools, is relatively low compared to the market price of the tuition. Second, it's the salaries in private law firms that by and large set the benchmark for law professor salaries. Even if you take a pay cut to move into academia from the big law firm that is the typical immediate pre-professor job, you aren't getting paid like an assistant professor in the English department.
2. Law students don't REALLY want to be trained in the legal equivalent of the barber college or truck driver school. While law students may get frustrated with the theory often foisted upon them by their professors, the present paradigm in the academy (and, honestly, this preceded the influence of US News, because the elite schools in US News were the elite schools when Bob Morse was still wearing short pants), they show over and over again that they are significantly influenced by the brand of the law school, regardless of the specifics of the pedagogical program. And the brand, as the institution of the legal academy has developed, has a lot to do with all that theoretical stuff law professors are churning into law review articles. I'm not arguing that is good or bad (although I wouldn't be a law professor just to teach; it's the theory that floats my boat after all those years of practice); it's just the reality. Seriously, tell me that a rational student, faced with the choice of Stanford or UCLA, with all those practice-challenged theorists, or an excellent "skills-focused" third or fourth tier school, and no significant difference in tuition (see point 1) (and maybe not even then, but that's an interesting econometric question), wouldn't choose Stanford or UCLA?
My "dean speech" (that nobody has asked me to give) is that this is an intractable polarity that the profession is simply going to have to manage by way of leadership that provokes empathetic perspective at both poles. The poles aren't coherent, and there is no rule of nature that says they have to exist, much less coexist. But they can, just like lots of polarities continue to coexist. Faculties simply have to make concessions to the concerns and needs of students or their gravy train is going to disappear; students and alumni are going to have to acknowledge the driving forces of academic prestige and advancement, or they are going to lose that patina (and brand, and earning power) that comes with a law degree other than from ITT Tech, DeVry, or the University of Phoenix, all of which would be perfectly capable of offering what BL1Y wants (InfiLaw already does).
Posted by: Jeff Lipshaw | Jun 19, 2010 11:13:18 AM

Here's our take on what you, as law students, should not want:

1.  You should not want an education that spoon-feeds you.  When you enter law school, your first-year professors will teach you how to find "the law" and how to think about it.  Your upper-class professors will expect you to figure out much of what we call the "black-letter law" by yourselves, in part because we know from our own experience that the difficult part of being a lawyer lies in figuring out to do when the black-letter law doesn't apply or when two black-letter law rules conflict (or when there's no law at all on the subject).  Litigators don't litigate easy cases--those never reach the courthouse, unless there's something psychological going on with the client.  Transactional lawyers don't get paid for cookie-cutter deals; they get paid for innovating.  There's nothing that'll tick a professor off more than being asked to spoon-feed a group of students.  You're smart.  That's how you got into law school.  Learn to figure some things out for yourself.  (For some great advice on this subject, see Austen L. Parrish & Cristina K. Knolton, Hard-Nosed Advice From a Cranky Law Professor; How to Succeed in Law School.)

2.  You should not want professors always to do what's always "been done."  Part of what distinguishes good law schools from bad ones is that, at good ones, professors are always engaged in thinking about how to make the law (and legal education) better.  Sure, you're risk-averse.  Sure, you feel more comfortable if your law school does things the way that you've seen in those movies and TV shows about how law school "works."  One of us had the opportunity to take part in Stanford Law School's Curriculum B experiment, which allowed 1L Civil Procedure students to learn Civil Procedure by drafting complaints, interrogatories, etc.  She didn't take Stanford Law up on that offer, because she was afraid that she wouldn't learn CivPro if she didn't learn it the "traditional" way.  Who knows if she would have learned more by giving an experiment a try?

What should you want?  If you're one of the lucky ones who (1) knows what you want to do after graduation and (2) is absolutely, positively sure that your correct about what you want to do after graduation and (3) isn't fooling yourself about whether you're correct about what you want to do, then you should go to the type of law school that will help you do what you want to do afterwards.  If you're like the rest of us, and you don't know what you want to do after you graduate, then you should want a mix of teaching styles, law professor backgrounds, career options, and courses.  Don't just stick to the tried-and-true methods of law teaching, and don't resist the experiments that your professors try.  Innovations come from experiments.

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