jewishbuddha dot org

HOW TO IMPROVE LAW SCHOOL

1. A Multi-Prong Approach to Comprehensive Grade Reform:

First, I agree with the suggestion in the 5x5 to begin law school with a pass/fail semester. It would take some of the pressure of an overly-intense transition into the study of law.

Second, the ABA should mandate a standard curve for all law schools to use in classes over a certain size. This is one of my more controversial suggestions and least likely to happen, but I think it would be beneficial. Grade inflation is rampant in some law schools. Schools now raise move their curves up to make their own students look better compared to students at other schools. The elite schools justify it by saying their students are above average and are all at least B-students. But this goes into the school's reputation. Our student government actually lobbied the school to raise the curve. Some schools offer A+ grades, shifting the GPA scale up to 4.3, so a 3.5 from that school is relatively lower than a 3.5 from a school where grades only go up to 4.0. If grades always gave a relative indication of the student's place in a class, they would actually have some meaning. Employers are smart enough to weight grades based on the quality of the schools without the schools doing it for them. Many schools recommend a curve, but don't require it, so even within a school, the same grade may mean different things. Requiring all schools to use the same curve would address all of this. Admittedly, a strict curve is likely to make students more competetive. If the grades have meaning, however, this isn't necessarily a downside, and there are other ways of addressing the bad parts of competition.

Finally, although I disagree with Will's suggestion that we have more big papers, I think pinning the grade for an entire semester of work on one three hours exam is generally a bad thing. I work well under time pressure at the end of the semester and generally test well, so overall this probably benefits me. But it creates a pressure cooker that isn't necessary and a false depiction of a student's overall ability. I believe that more short assignments would make classes more engaging, allow more practical application of the material, and provide better opportunity for fair grading.

I recognize that grading more assignments would require a significant commitment of professor time. Maybe they could just publish fewer law review articles.

2. Get Rid of Student-Edited Law Journals:

I know there has been a lot of rumbling about this issue on the great interweb recently, including this debate from legal heavyweights Judge Richard Posner and Randy Kozel. Thus far, the focus of the discussion has generally been on the quality of the output and whether or not the students are qualified to edit the papers of their professors. I'm somewhat neutral on these issues.

The reason that I think we should lose the journals is that they offer little to students beyond prestige. "Law Review" sounds like such a great experience, but in reality, it's dull and tedious. There is nothing intellectually stimulating about checking cites and finding pinpoint citations that some professor's student research assistant was too lazy to dig up. Many professors agree with Judge Posner's view about student editing, which makes them less willing to cooperate with student journal editors. The majority of law review work is busy work. Why do we do it? Basically, career services and second and third year students tell us we have to do it to get a job. To a degree, they're right.

Why do employers care? This summer, at a firm dinner, I discussed this very question with the director of recruiting from my firm and a partner from Skadden Arps who was a guest of one of the attorneys in my office. The Skadden partner said he thought law reviews were pointless and couldn't believe students signed up to be on them. He was astounded when I said that students feel like they have no choice, that we beliee journal participation is necessary to land the most-desirable jobs. The recruiting director explained it simply: Law review participation is a proxy for the willingness and ability to work long hours on work that may or may not be interesting. The selective nature of it also helps as a proxy for otherwise meaningless grades (see above). That journals are extracurricular also suggests that the student can multitask.

Employers don't care about your case note. They don't care about your bluebooking (though it does train attention to detail). The positive things employers look for in law review students can be found and screened through other means. There are better uses of student time.

3. Merge Legal Research & Writing With a Doctrinal Class:
I first proposed this idea here a year and a half ago, as I was nearing the end of 1L. Despite being told that it was an idea that only a 1L could support, I maintain to this day that it would be better. From what I can gather, the George Washington, University of Iowa, and Yale Law Schools all agree with me, at least in part, so it's not limited to naive 1Ls.

The purpose of the legal writing course is to teach students the research and writing skills necessary to be a lawyer. If the students are assigned topics they don't understand, the class gets bogged down teaching substantive law rather than skills, and the grade may reflect the student's ability in a legal field rather than his or her skills. Merging with LRW with a substantive class, such as Civ Pro, would fix this. At the minimum, coordination between the LRW professor and a professor from another subject would help. If the LRW assignments cover familiar substantive ground, the students, fellows/TAs, and professors can focus more on the research and writing aspect of it. See the post linked above for more depth on this.

4. Make the Third Year Valuable or Stop After Two:
"First year, they'll scare you to death. Second year, they'll work you to death. Third year, they'll bore you to death." So very, very true.

I'm far from original on this, but I'll join the chorus recommending that the third year either be cancelled or made more practical. Mandatory clinical traning would be good. Clinics don't have to be defending addicts or fighting slumlords (not that these are bad ideas, but it's not everyone's cup of tea). With a full class of 3Ls to put to work, a school could achieve a lot and earn goodwill in the community. I'd like to see small business, intellectual property, employment, and ADR programs offered for 3Ls. Consider the third year a mandatory residency or internship, where we pay our dues before we can get paid.

I'm not in a clinic right now, but that was not my own choosing. The clinics here are highly competitive, and you can only be admitted to one. You rank all your choices, but the majority only admit students who select that clinic as their first choice. I aimed high and missed, a fact that still disappoints me.

Taking regular classes as a 3L is tiresome, even if the professors are good and the material interesting. If the school has done its job well in the early stages of our training, we should be able to investigate a new body of law on our own. The classes, as they stand, offer little new. The subject matter changes, but the thought processes and analysis are very similar. Balancing test. Distributing costs. Standards of review. Arbitrary and capricious. Duty. Abuse of discretion. Canons of statutory interpretation. Etc.

Besides, no matter how well we learn the material in school, we can't practice without checking the law. I'm going to be a patent lawyer. If I do work for clients based on my recollection of my Patent class, or look things up in my patent outline instead of in the current law, I'll get sued for malpractice. Even if that outline was tabbed and highlighted.

I'm not so arrogant that I would say I get nothing from class or that teaching myself is the equivalent of learning from experts in the field. I know better than that. I'm merely saying that once we've been exposed to the fundamentals of legal theory, repetitive application of those fundamentals in class might not be the best use of our time and money.

Cancelling the third year outright would save tuition and lower debt, giving students more career options other than big firms, which a lot of people seem to want.

5. Prepare Us for More than Big Firm Litigation:

I wrote three or four #5s before settling on this one, though I don't know that it is the best or as significant as the previous 4. I wanted to finish the list while it might still be timely and contribute to the discussion.

Before I started my second year of law school, I endured a week of more than 20 job interviews. Almost all of them included questions about whether I wanted to practice in litigation or transactional law. I wanted to do litigation, but truthfully, I had little idea what transactional work involved.

Law schools are soundly criticized, in my opinion, for not providing sufficient practical training. However, what training they do provide, particularly duing the first-year curriculum, is almost entirely geared towards litigation. Career Services will tell you that law school opens a million doors in terms of career options, and might even provide you insight as to what two or three of those options are. But nothing in law school will help you decide whether or not those career choices are for you until after you have to take a first stab at deciding.

I wrote memos and appellate briefs during the first year of law school. I didn't draft a contract. Hell, I never even read a contract. I didn't have any idea what lawyers do if they're not litigating. I came to law school in part to train for and secure a position as an intellectual property litigator. It turns out that I still want to do that, but when I actually had to choose between litigation and transactional work, I couldn't make an informed choice.

Somewhere in the first year curriculum (maybe in Legal Research & Writing, which Harvard aptly calls "First Year Lawyering"?), there needs to be something more about the actual practice of law. Not from a job search perspective, but from a "This is what lawyers do; this is what you can do" perspective. Doing a little bit more of this up front might make the recruiting process smoother, and might allow law schools to continue avoiding the trade school designation in favor of an ivory tower existence.

Of my suggestions, this last is the hardest for me articulate, and likely the most difficult change to actually achieve. Most people come to law school with some idea of what they want to do. Presumably, many of those who end up doing transactional work knew what it entailed before they started school, just as I knew about litigation. But there were many students who didn't, and it would be nice to help them learn what opportunities exist in the legal profession.