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My thoughts on practice-based coursebooks - responding to Nick Wagoner's earlier post here. I have no disagreement with what Nick said. I do, however, disagree with the nationwide push toward making law schools into trade schools, the attempt to make the institutions less intellectual. And I recently blogged here about the direction I would like to see schools go - echoing the vision recently outlined by the Dean of the law school at Boalt Hall (California-Berkeley). Comparing law to another profession, would you prefer that your surgeon had spent more time taking courses on "counseling patients," and "medical clinic management," or more time studying cellular biology and organic chemistry? For my surgery, I would prefer the one who had a more intellectually rigorous program, not one that focused on role-playing exercises and rudimentary paperwork-completing skills. I wonder if any other profession criticizes its theoretical wing like ours does.
The most troubling aspect of turning the focus of law schools completely toward "skills" is that this is the seed of our institutions' destruction. When a consensus finally emerges that the whole point of law school is training kids in the mechanical tasks of lawyering - how to write a brief, how to give an opening argument, how to look up the law on something - people will then realize that law schools are not really necessary at all for teaching "skills" - these are better learned by "doing" and by repetition. A law school with a skills curriculum is a law school that is not worth the time or tuition, as the same skills would be better learned on the job in apprenticeships. After we all switch to teaching mechanical skills, there will be a movement to abolish law schools completely. The academic study of law will get absorbed back into the political science departments from whence it came, and lawyer training will be done the same way we train & license paralegals.
My institution is already heavily tilted in the direction that others are now advocating. We are frequently reminded in faculty meetings about the Carnegie Commission Report and similar studies showing that legal employers wish the law schools would invest more in practical training. I've always assumed this is because all firms would prefer, naturally, to hire lawyers with the equivalent skills of a fifth-year associate for the price of a first-year associate. I'm familiar with the general content of these studies and why they say we need to change.
My observation is that most students graduating from the bottom half of the law schools (those below the top 100 in USNews) have never read a single law review article, and have had zero exposure to the theoretical literature of their profession. At my institution, all students have two required semesters of legal writing (consisting mostly of brief-writing skills), and most take both Trial Practice & Procedure and Appellate Practice & Procedure. There is tremendous pressure for everyone to participate in moot court and mock trial competitions, and many do a semester in our clinic. We have a flourishing (well-funded) Center for Mediation and Dispute Resolution, which offers a panoply of courses in ADR, negotiation, client counseling, and so forth. We offer all-day workshops for credit between semesters on Deposition Skills, Prosecutorial Ethics, and Law Office Management. Most of our paper seminars are taught by adjuncts - practitioners rather than faculty members - so almost all the students write their research papers on practitioner-oriented topics or doctrine, never theory. The lower 45% of the class are required to take mostly bar courses (non-theoretical) for their last two years of law school. We're very successful at turning law school into a trade school. Yet that's not enough - we're still reminded regularly that we need to be far MORE skills-oriented and far LESS theoretical, even though I have trouble imagining how much space remains on the skills end of the continuum for us to occupy.
I'm not criticizing my institution - if anything, it's on the cutting edge, and other schools are playing catch-up to us in this regard. I am unconvinced, however, that the overall trend is healthy.
In terms of marketable skills, there is an inconsistency between what the firmssay they want and what the firms do when they hire new graduates. The firms say they want "practice ready" associates and complain that the law schools are too theoretical; but when given the opportunity to hire graduates from the HALF of the law schools that are mostly practice-oriented and non-theoretical, they pass over them and hire associates from the top 100 law schools instead - year after year, decade after decade. I know that some in the legal academy do not believe in rational markets or market discipline, so they would dismiss this as "all the firms are being stupid," or would say that the hiring partners at big firms are fooled by the prestige or brand names of elite schools. It's really strange, though - that after decades in practice, the graduates from the "skills" schools do not seem to rise to the top of the profession enough to influence or change the hiring patterns. One might expect at least some of the firms to realize that the "skills" schools are producing superior lawyers ("practice ready") and that some would switch to interviewing on their campuses instead of the elite schools. It just doesn't happen - year after year, graduates find it easier to get jobs if their diploma is from a more elite (read: more theoretical) law school. The graduates from lower-ranked law schools are much more likely to find themselves unemployed and having to start their own solo practices. The hiring market has never backed up the claims that students are better off being taught lawyering skills instead of higher thinking about the law. Law firms overall prefer to hire students from schools that tilt toward legal theory. The shift toward skills is not a response to market pressure; it runs counter to the market. The push is coming from somewhere else.
Ultimately, this is a symptom of a larger problem happening at colleges and universities everywhere. As Professor Benjamin Ginsberg has described in his wonderful book The Fall of the Faculty: The Rise of the All-Administrative University and Why It Matters, undergraduate institutions nationwide are replacing academically rigorous courses for "life skills" courses on subjects like event planning, how to keep a journal, social networking, and so on. The reason: colleges and universities have shifted toward hiring professional administrators (managers) to run things rather than intellectuals, and these management types think students should take courses that make them more like the managers themselves - event planners, strategic-plan drafters, fundraisers, etc. Law schools are merely coming late to the "skills" game that Ginsberg describes as infecting (and gradually ruining) even prestigious schools like Cornell and Johns Hopkins. Every year, the legal textbook publishers send me more review copies of "problem solving" texts to replace the traditional books that get students to read lots of cases. I anticipate that the trend will continue, but I believe that the dumbing-down of law schools (as typified by the new stuff the publishers are sending us) will result in the dumbing-down of the legal profession.
UPDATE (in response to a comment I received): I have posted elsewhere (years ago) about my support for specialized law schools, especially religious law schools. Nevertheless, the push to turn law schools into trade schools is not about specialization; on the contrary, it's a get-on-the-bandwagon thing.