The Volokh Conspiracy

I think this is wrong, particularly at a school like Stanford, where you have a sizeable chunk of the class apply for clerkships their third year, which means they need to care about their grades at least until then.

Bobbie,

It was certainly true at Harvard when I was a student there; I'm not sure if Stanford is different, or if times have changed in the last decade. It's true that some students apply for clerkships, but most don't.

Maybe it is also because by the middle of your second year you have learned everything you need to know to pass the bar exam and anyone with half a brain has figured out that law school is a fucking joke and you aren't learning anything that any sane, intelligent or rational person needs to know. So the only people left paying attention are the idiots, the insane, the suck ups and the jerks.

I agree with Orin 100%. If grades were as important for most students 2nd and 3rd year than they were 1st year--especially for students who are likely to be at the top of the class anyway--then students would be more engaged in their upper level classes. If most upper level classes weren't just "more of the same", then students would also be more likely to be engaged in their upper level classes. Add to that the fact that there is some significant overlap between certain classes (a good chunk of Family Law is just Con Law II all over again, some of Trusts and Estates is just Property all over again. . .), and 3rd year can be downright painful for students who have not figured out that they are best served spending most of their 3rd year in a clinic, externship, legally related job, or skills-based classes.

So here's my suggestion: make some type of skills training mandatory for 3rd year. At GW, students typically take between 12-14 credits per semester. Why not mandate that students earn at least 12 credits 3rd year through either an internship, clinic, or skills-based class? (I'm thinking along the lines of pretrial advocacy, negotiations, some type of client-interaction class that I'm sure could be created.) Students would still have substantial freedom in how they earned those credits, and they would be spared the monotony of siting in a doctrinal class that they have no interest in (or, more likely, sitting on the couch watching TV because they have no interest in or motivation to go to class). Professors would be spared trying to each 3L students who are completely disengaged and would have smaller, more enaged groups of students. It seems like a win/win proposition to me.

First, Kramer argues that law schools have the 1Ls' attention and that, looking back, lawyers remember their 1L year. Is that the same as proving that the current way of teaching 1Ls is the best way of teaching? Much of Kramer's evidence is consistent simply with the thesis that 1L is an extended initiation ritual, or perhaps even a mild form of hazing.

Second, undoubtedly, the failure to hold attention is based upon the students' (largely correct) conclusion that law school has nothing further to offer them. The best options: drop 3L altogether, require clinical work as apparently Stanford might, or make 3L optional.

A large part of the problem, in my view, is that law schools generally do a poor job of teaching practical skills. If you compare law school to other professional programs such as MBA programs and medical schools, I think you'll discover the following: (i) grades are not nearly as important in these programs as they are in law school (either to employers or, by extension, students), so they can be discounted as an overall motivating factor and (ii) these programs are much more focused on teaching skills that have immediate application in the post-academic environment.

I did a joint JD-MBA program. In business school, for example, I learned current thinking on financial modeling and strategy that I could apply my first day on the job. By contrast, in law school I learned about the theory of limited liability ("as a policy matter, why do we allow some firms to have limited liability") and the theory of securities litigation ("should there be a private right of action for 10b-5 claims"). Of course, I didn't learn how to actually form a corporation or what needed to occur for the corporation to take action.

After I graduated, I learned a lot of practical legal skills, but only because my law firm was generous enough to send me to several CLE programs that focused on nuts and bolts issues ("this is a tender offer and this is how it is done"). In my view, this was remedial education and my firm should have billed my law school for the cost of the program.

Law schools would be much more effective if they re-focused the upper division (and especially the third year) on practical applied courses. If they need curriculum ideas, they can review the courses offered by the leading CLE providers.

It is interesting to me that my B-school polls employers each year about what skills the employers want MBAs to have upon graduation. This topic regularly came up during my MBA classes (often in the context of "Why are you teaching me this boring nonsense" -- "because McKinsey told us this is important in management consulting engagements"). This topic never came up on the law school campus and I doubt it would ever occur to my law school faculty to ask law firms what skills they want law graduates to have.

Law school classroom work is of very limited educational value. That limited value consists of socializing students into "thinking like a lawyer" and teaching them the basic skills of how to read a case, how to read a statute, and how to do basic legal research. That learning is complete, or should be complete, after the first year. The second and third years of classroom work serve no material educational function: they teach nothing that the student couldn't learn on the job more effectively and efficiently, and the students will indeed have to re-learn the material in any case when they do come to use it.

Law school, after the first year at least, is a cartel for the benefit of existing practitioners, who are pleased to have high barriers to entry, and for the benefit of legal academics. I wonder how many academics who teach administrative law or antitrust point out to their students that they themselves are the victims of a premier "iron triangle".

I speak, incidentally, as a full-time academic myself, after a long career in practice.

As a law school librarian and teacher of legal research, I teach practical skills, and my classes are invariably oversubscribed. We're going to be offering a greater variety of Advanced Legal Research classes in the spring and we're anticipating major demand. The problem is, though, that these classes must be small to be effective given the amount of work assigned, and the law school economic model depends upon cheap teaching of large numbers of students. Skills classes are not economical.

The other problem is that the students and professors of a given law school are almost certain to be embarked upon entirely different projects. Most students want to learn more about what the law is, whereas most professors in my experience want to learn more about why the law is. In brief, nobody who actually decides the content of law classes wants to see small groups of students learn practical skills, which means that a more practice-oriented curriculum seems very far away.

The comments by Jim Lex and Larry Abraham were really good. For the record, I did NOT know what I was going to be doing until the second semester of my third year, and I too was bored by my coursework in the third year. The first-year law curriculum is great for teaching the classical lawyer skill set, but 2 more years of basically the same thing is bound to yield diminishing returns.

Many people who've studied law schools from an institutional perspective- and quite a few legal academics- have suggested the standard 3-year routine is one year too long, and law school could teach what it does in 2 years without much difficulty. A third year could be optional for those who wish to become academics or perhaps to take specialized practical courses. But this would probably be very few people- most firms would likely think they could teach people practical skills better than a school, and even at elite institutions few students will go into academic careers.

The function of the third year as an additional barrier to entry in the profession, as well as law schools' usual status as cash-generators for their university, make it highly unlikely that something like that will take place in the future. Too many people have a vested interest in keeping things the way they are. Maybe it would help a lot though, if schools would expand clinical offerings and make more of an effort to establish externship programs with local judges.

Sorry to say, but it's true. The most important thing that can keep a corporate lawyer sane is to be able to understand what is truly important and needs to be focused on, and what can be ignored. "Everything" is a nice academic answer but useless for the most part in practice.

Don't forget that the three year curriculum is a relatively recent invention. As late as 1960, law school was typically only two years. Does anyone know why the extra year was added?

At a minimum, I know how to spell Wachtell.

He asks, "*why* do we have students' full attention only in the first year? Why do we progressively lose them after that?"

It always disappoints me that such smart people are totally clueless to the realities of the world.

The reason is because NOTHING matters after first year. Law Review, Summer Jobs, Moot Court Board, Judicial Clerkships, etc. are all decided on what you do your first year. After that, who cares. You can't get onto Law Review in your second year. Law firms don't look at your grades in second year. Deans wonder why students don't care after first year? Because it doesn't matter!

With respect to Orin Kerr's comment that I haven't thought enough about "j-o-b-s," that's very much the point. I have been interested in curriculum reform for many years. Like most legal academics, my focus was initially on the first year. What changed my mind was becoming dean, which has meant spending a very large portion of my time talking to the people who hire our students about what from their perspective we are doing right and what we are doing wrong--not just alumni, but also managing and hiring partners, general counsels, CEOs, heads of public interest organizations, and the like. The ideas that emerged grew out of conversations with them. What they believe, and I believe, is that the kind of educational program we are creating will make our students *more* employable, precisely because it adds skills and knowledge that are useful for lawyers. It's a better professional education, more reflective of the reality of lawyering today. Indeed, the response from professionals has been overwhelmingly positive. (The other common remark was that we should do more to enhance research and writing skills, which we hope to accomplish by beefing up our 1L program and through an enhanced clinical program.) And, of course, for students who do not yet know what they want to do after, the conventional generalist legal education always remains available.
The other comments all underscore the problem that there is little to keep students engaged in the 2L and 3L years, who are just biding their time before they begin working. But these are very smart, intellectually curious young men and women. Most will treat law school as an ordeal to be endured only if we fail to make it more than that. We can engage them if we offer something new, interesting, and different as well as professionally relevant.

Here is what the always authoritative Wikipedia has to say about the history of law school curricula:

The creation of the modern J.D. program is largely credited to Christopher Columbus Langdell, who served as dean of Harvard Law School from 1870 to 1895. Langdell dedicated his life to reforming legal education in the United States; the historian Robert Stevens wrote that "it was Langdell's goal to turn the legal profession into a university educated one — and not at the undergraduate level, but through a three-year post baccalaureate degree." He was generally successful in remaking most American law schools in Harvard's mold, since they often drew their faculty from Harvard. First, Harvard extended its LL.B. program from 18 months to two years in 1871, and then to three years in 1899. Then, in 1896, Harvard was the first law school to officially require an undergraduate degree as a prerequisite to admission (although the rule was not strictly enforced until 1909). By 1921, the same rule had been adopted by the law schools at Columbia, Pennsylvania, Case Western Reserve, Stanford, and Yale. Still, although the entry-level law program was revamped as a graduate program, the degree conferred continued to be called an LL.B.

However, upon its opening in 1902, the University of Chicago chose to award the J.D. rather than the Bachelor of Laws. Some schools started conferring the J.D. as a Latin honor for students with high grades. Eventually, the disparate treatment prompted schools to abandon the distinction and call all degrees conferred a doctorate. Yale Law School was the last to rename the degree - it conferred the LL.B. until 1971.

As this discussion makes clear, legal education was originally an undergraduate course of study and only became a graduate professional program in the last 100 years. Even after the move to graduate programs, many schools did not add the third year until the late 1950s and early 1960s, often in connection with the renaming of the degree from LL.B to J.D. While I don't have any direct evidence of this, the move toward standardizing the three year curriculum and using the J.D. designation for the degree seems to have accelerated after the ABA was recognized as the accrediting body for law schools in 1952. Until very recently, the ABA required accredited law schools to maintain a three year curriculum. Here is the Wikipedia discussion on this change:

The course of study usually takes three years for full-time students and four years for part-time students. The ABA previously required at least 36 and no more than 84 months of study for a school to receive approval. In 2005, the ABA amended the rules to permit as few as 24 months of study; however the total amount of instruction required was unchanged. Interestingly, the ABA does not mandate a specific number of credit hours for graduation. Instead, it mandates the number of minutes of instruction each student must receive. Currently, schools with ABA accreditation must require that graduating students have completed 58,000 minutes of instruction time during their course of study. According to the ABA, this typically translates to 83 semester hours or 129 quarter hours.

This is my last comment on the issue as I do not want to stifle debate on making law school more relevant.

In regards to the statement by Mr. Kramer above: "Most will treat law school as an ordeal to be endured only if we fail to make it more than that. We can engage them if we offer something new, interesting, and different as well as professionally relevant."

I think most people that volunteer, intern, extern, or work at a legal institution (be it public interest, government or law firm) during law school will agree that they face a myriad of interesting and engaging issues at work that are more tangible that what is taught at law school. I am faced with extremely novel and new issues of law that I need to spend time researching and finding the background principles to the issue. This is exciting work and challenging. I think most will say they learned more about law working than they have sitting in a class room. Law students are indeed intellectuals, but they are also pragmatic.

The second point is that law schools create an elitist class that many students feel is unfair. Employers like to see Law Review and Moot Court on a person's resume for a reason, because it shows advanced training in either legal research or trial skills/oral argument. I think it is unfair for a law school to foreclose such opportunities for skill development to the other 90 percent of the student population. If fact, I would argue that law schools should advocate spending more resources to help develop these skills for the other 90 percent, and advocate the training these students receive to employers. Some would say that there are other opportunities, but they are not given the same consideration as Law Review or Moot Court. There is no equivalent for the experience you get from law review. A student can not get training in editing or writing a law review article outside of law review unless it's taken on one's own initiative and for no credit. This is unacceptable, especially when a student is paying 30K per year to a school. I think a law school has a duty to address the wants, desires, and needs of the students, and students should have a voice in the process, but no law school has seen fit to change their ways. Give a stake to the students in their educational process and you will have interest. Foreclose opportunities and they will ignore the elitist desires of academics.

The Clinical Legal Education Association has an excellent whitepaper on this topic, which is posted at short description


Some highlights:

"Law schools generally neglect their responsibility to prepare students for practice, focusing instead on preparing students to pass bar examinations. Bar examinations alone are not sufficient to test an applicant's preparation for the practice of law, and it is generally conceded that most law school graduates are not as prepared for law practice as they should be and could be." [I would amend this slightly since many law schools don't even prepare students to take bar exams. At my top 10 school, my first year property professor didn't teach the Rule in Shelly's case and spent about 10 minutes on the rule against perpetuities by remarking -- "you'll learn that in Bar-Bri"]

"We are mindful of what historian Robert Stevens described as 'an unhealthy dichotomy between the professional and scholarly approaches with which legal educators have been struggling since Langdell and Eliot first brought the professional school of law into the mainstream of the American liberal arts university.' Stevens also wrote, however, that '[d]espite all the rhetoric, the American law school was founded and developed as a professional school stressing the knowledge needed to pass the bar examination and to succeed in practice.' Today, even more than before, our society needs law schools to do the best job possible teaching students the skills and values, as well as the knowledge, they will need to practice law effectively and responsibly."

I'd like to add one more thing that would keep 2L and 3L students' attention - cold-calling. I didn't study in advance for class or worry about keeping up in class in second or third year (instead preferring to simply attend class and read after the lecture - often in the few weeks just prior to exams) if I knew that there was no chance I'd be cold-called.
I came out of law school at a time when even the big firms were scaling back summer classes or cancelling offers, so perhaps that kept my classmates a bit more "engaged" that we'd have ordinarily been. However, even with a summer associate gig lined up at a firm that gave 100% offers, I was terrified of being humiliated when called on, so when I knew I was on call, I prepared for class. And only a handful of 2L and 3L classes have any student participation requirements, and even that is on some kind of schedule. Absolutely random cold-calling would probably improve attention - but only if found in most 2L and 3L classes, so students couldn't simply decline to take the professors who used that teaching method.

I'd also offer that clinics beyond the simple standard litigation fare would be helpful. I didn't learn anything about being an M&A and securities lawyer in law school. I enjoyed law school, but less than 10% has had any practical value for me as a lawyer. Just the price of entry.

At my top 10 school, my first year property professor didn't teach the Rule in Shelly's case and spent about 10 minutes on the rule against perpetuities by remarking -- "you'll learn that in Bar-Bri"

Interesting. My property prof spent 6 weeks teaching us common law estates, then gave us a test (about a third of our semester grade IIRC) which included both the RaP and the Rule in Shelley's case.

I loved every minute of it.

Um, what about trying hard in upper-level classes for the love of the game, so to speak? I'm an economist (and a 3L at a top-5 school) and I understand incentives, but don't people take pride in trying their utmost in their chosen field, just 'cuz?

If they're not putting effort into law school, what are they doing alternatively with their time???

Sorry if I sound naive.