Legal Commentary

Howard's last post about common sense is on to something, though I'd engage with him on whether you can just tell lawyers, after three years of law school inculcation, just to employ common sense.

So was Larry Cunningham's post yesterday at Concurring Opinions, discussing Louis Menand's essay on the anxiety inherent in academic interdisciplinarity.

I've gone on record as suggesting the professional judgment of a business lawyer requires not just interdisciplinary skills, but a "meta" ability to deal with many disciplines, something I call the discipline of metadisciplinarity (or, as I referred to it in a talk at Boston College a few weeks back, the very deep art of knowing how and when to be shallow).  Metadisciplinarity asks one to engage, as a practitioner, with the interplay between technical expertise and common sense, or, as an academic, with the tension between specialized knowledge and dilettantism.

So it was that Larry Kramer, dean of Stanford Law School, in Boston last week meeting with small groups of  alumni, caught my attention.  Usually, I'm in those meetings as a target (cha-ching), but when Larry claimed that Stanford might well be undertaking the most significant change in legal education since Langdell, I was interested more as a legal educator.  Stanford's changes are not new news; they began well before the financial crisis and its domino effects on the businesses of law and law schools. It's one thing to say you are going to fiddle with the curriculum; it's another to say one school's change is important enough to, as they say, shift the paradigm across all of legal education (as Langdell's case method did).  That hit me where I live now, particularly after digging into the rationale for the change, which has everything to do with lawyers going beyond doctrine, or even pure legal judgments, and engaging in the interdisciplinary judgments that occur any time they interact with clients. 

For the micro view, see my paper, The Venn Diagram of Business Lawyering Judgments:  Toward a Theory of Practical Metadisciplinarity (forthcoming, Seton Hall Law Review, 2011, also to be presented at the Law & Society meeting later this month).  Below the fold, however,I want to raise some questions on the macro issue:  what cascading institutional changes in legal education, if any, this portends.

There is a fair amount of public material on this:  the 2006 press release, "Larry Kramer Wants a Revolution in Legal Education" from the Wall Street Journal Law Blog, as well as a much more recent memorandum Larry's assistant sent me the other day, which I've reproduced below the fold.  I can, however, summarize this in just a few bullet points:

1.  The first year of law school largely works, and that will continue largely unchanged.

2.  The second and third years of law school largely don't work.

3.  The law school will be a portal to the university in the second and third years, giving students tremendous flexibility in designing course and clinical packages that take advantage of ALL of the university's graduate and professional programs.  This isn't just more joint degree programs (but many are available), but the opportunity to make the education underlying even the J.D. as interdisciplinary as the student wants.  The educational impetus is that it's no longer true that a lawyer can obtain the skills he or she needs to succeed merely by studying legal doctrine with law professors and other law students.

4.  All students will get an opportunity to spend at least one quarter in a full time clinical experience - with no competing classes or projects.

I don't think one can fairly compare Stanford's resources with all law schools, and I don't mean to, but I did start thinking about this vision of legal education, and how schools from the top to the bottom of the surveys and rankings mights be affected. The "beauty" of the Langdell model for years and years was that a law school education didn't look fundamentally different within the four walls of any law school you chose to visit.  When a law school paints a very different picture to its incoming students - "we are going to put the full power of the university to work on your education in a meaningful way" - that seems like it begins to separate the field.   For example:

- Size matters . . . when you are committing to give every student a full quarter's worth of full time clinical experience. Stanford has 160 students per class; some of the top-ranked schools (e.g., Harvard, Michigan, and Georgetown have three or four times as many).  Can the big schools make the same experience available?

- Resources matter . . .  while free-standing law schools could certainly work to replicate university-like resources, that isn't going to be easy.

- Location matters . . . when you are offering opportunities, as Stanford's materials mention, "within walking distance" of the law school.   How will schools like Northwestern, Georgetown, Fordham, BC, etc., where the schools are physically removed from the main campus, react?

- Students matter . . . when you are worried about things like your bar passage rate and you migrate away from the traditionally required upper level doctrinal subjects, like evidence or business associations. 

- Reputations matter . . . Larry told me about a program in which Stanford law students will be working cooperatively with a major corporation in which law students fill a particular need.  Will every school be able to make that opportunity available?

Let's assume that the Stanford model indeed is the most significant change to legal education since Langdell, or, at the very least, it's a game-changing marketing plan.  Here are some of my questions.

    - Is it an elite school phenomenon?  (That was the view of one of my colleagues.)

- How does it measure up against other changes to the paradigm, like Northwestern's two-year plan?

- How will the "aspire to be elite schools" react?

    - How will the lower "first tiers" react?

- What will the effect on independent schools be?

   - What adaptations will result in the third and fourth tiers? 

- Will there be consolidation?

Here's the memo from Larry's assistant:

Stanford Law School revised its first-year curriculum decades ago (in the 1980s), and it successfully teaches students how to think like a lawyer through rigorous courses in legal reasoning and case analysis. But law students need more today than the traditional second- and third-year law school curriculum offers them. It is important for 2Ls and 3Ls to learn more legal doctrine, but it is equally important for them to learn how to think like their clients during the upper years.

 

Our curriculum changes are a response to a changing legal profession. Because business, medicine, government, education, science, and technology have all grown immensely more specialized, legal practice has had to adapt by growing more specialized. At the same time, lawyers have to practice in a globalized context--transnationally.  And, while lawyers have historically been looked upon and trained to spot problems, now lawyers are being asked to solve problems. In order to contribute to solutions, lawyers have to be able to work collaboratively as part of cross-disciplinary professional teams. They have to be able to think like their client, which means, in part, they should develop subject matter expertise in their area of practice. (e.g.  Environmental law / environmental sciences.)

 

Stanford Law School is unique in that no other law school can match the breadth of excellence we can offer students who want to study across disciplines. Stanford University ranks in the top 10 in 17 academic categories; in the top five in 16 of 17 categories; and the top three in 14 of 17 categories.  In rethinking our curriculum, we saw that our students have a lot to gain by taking courses outside the law school--among the other top ranked programs at Stanford University that afford them subject matter expertise; that teach them to work in problem-solving teams (such as taking a team who can take an engineering product to market); and that teach them to operate in a global context.

 

Accordingly, we began to revamp our revamp our second- and third-year curriculum starting in 2006:

 

We revamped our course offering, changed our academic calendar, and broadened the degree. We?re encouraging students to find their direction while in law school, helping them to choose the right courses, and connecting them with alumni who can serve as mentors in their field. (To facilitate mentoring, we built SLS Connect ? a proprietary social network tool specifically for Stanford Law School alumni and students.) We?re providing real research opportunities to students through research centers, and directing their research on projects that have real-world impact (such as the Afghanistan Legal Education Project). We made a huge commitment to clinical education and have expanded our program, to enable students to do real work on the ground (including practice in international law).

 

Specific Changes:

 

We are educating students more broadly through courses outside the law school and through joint degree programs. We synchronized our academic calendar with the rest of the university, which is on quarters not semesters, so our students can take advantage of the fact that Stanford University houses top-rated graduate programs and departments all within walking distance of the law school. We now offer 27 formal joint degrees and we continue to allow students to tailor their own joint degree in practically any discipline.

 

We have developed team-oriented, problem-solving courses that are co-taught by faculty from the law school and Stanford's other top-rated schools. For example, student teams from the law, business, and engineering schools will learn how to bring an invention to market--evaluating the technology, drafting a business plan, protecting intellectual property, and managing the regulatory process.

 

We are rapidly expanding our clinical education program so that every law student is able to take a clinical course some time during their three years here that will teach him/her how to work with clients and colleagues-- and how to address the ethical dilemmas that arise in practice in the context of real-life client representation scenarios where they can be mentored by seasoned practitioners before they graduate. We are broadening the range of practice areas of our clinics, and introducing a clinical rotation, based on the medical school model--with no competing exams or courses.

 

On May 28, 2008, the law school faculty voted to adopt a grade reform proposal to change the law school?s grading system to an honors, pass, restricted credit, fail system for all semesters/quarters. The new system includes a shared norm for the proportion of honors to be awarded in both exam and paper courses. The policy became effective beginning fall 2008 starting with the class of 2010.

 

Timeline:

 

The curriculum changes have taken place over the last several years--with a formal announcement of them in November 2006 and a "joint degree expansion" announcement in May 2007 (see links below). We switched fully to the quarter system in the fall of 2009. We modified our grading system effective 2008 for the class of 2010.