Law school diagnosis

Why do law school courses bear so little resemblance to the real-world conditions in which most law school graduates eventually work? My MoneyLaw colleague Jeff Harrison, with good reason, would regard this as further evidence of professorial capture and self-dealing. Without rejecting Jeff's well supported hypothesis on the personal origins of this gown-town disconnect, I'd like to explore other possible explanations rooted in the content of legal education. I'll now seek succor from a different member of the Florida law faculty. Inspired by an analogy to Alyson Craig Flournoy's thoughtful but underappreciated Restoration Rx: An Evaluation and Prescription, 42 Ariz. L. Rev. 187 (2000), I'll make this initial attempt at a more comprehensive diagnosis.

Consider Patient 001, the Harvard Law School. For many years before Elena Kagan became dean, Harvard was regarded by many as having a stagnant classroom culture. (Among American law schools, Harvard's fierce rival in New Haven is widely regarded as being even more disconnected from reality, but let's save Yale for another day.) Harvard's pedagogical malaise is easy to trace: Round eighteen hundred and ninety-two, Christopher Columbus Langdell made all law schools blue. The Langdellian curriculum of contracts, property, torts, criminal law, and civil procedure dominates American legal education. If American legal education is sick, and the curriculum is at least one of the causes, then Langdell's Harvard was the disease vector.

To be sure, Harvard with much fanfare has announced changes in its first-year curriculum. In a welcome departure from Harvard's conservative institutional culture, the new curricular plan quite ambitiously seeks to direct "greater attention to statutes and regulations" and "to the institutions and processes of public law." Harvard now recognizes that a good legal education does not stop at the water's edge. Ultimately Langdell Hall hopes that its wards will more frequently "reflect on the entire enterprise of law and legal studies, the assumptions and methods of contemporary U.S. law and the perspectives provided by other disciplines," the better "to develop a common fund of ideas and approaches relevant to designing effective and just laws and institutions."

Harvard's implementation of these lofty goals will rely on "three new course requirements to the first-year curriculum":

1. A new course focusing on legislation and regulation.
2. Each student will take one of three specially crafted courses introducing global legal systems and concerns - Public International Law, International Economic Law, and Comparative Law
3. A new course, Problems and Theories, will focus on problem solving, while introducing students to theoretical frameworks illuminating legal doctrines and institutions.

These are innovative developments -- to a degree. Many schools have attempted to teach legislation, regulation, or some combination thereof in the first year. Before it was forced to concede that it couldn't find three regular teachers of legislation, Minnesota used to be one of them. I imagine I should be grateful that this school's desperation to cover its required first-year legislation course in the early 1990s prompted me to drop my plan to practice environmental or public utility law in Virginia. Other schools have likewise abandoned legislation and regulation because they too lack the personnel (and perhaps also the institutional will) to break the common law's grip on the first-year curriculum.

As for international or comparative law, bully for Harvard. Not every school can come close to offering these courses on a sufficiently regular basis even to contemplate making them a required portion of the curriculum. As with legislation and regulation, the successful internationalization of the curriculum depends on resources. No teachers, no courses, no progress.

Much hinges on Harvard's third course, the problem-solving course that will also "introduc[e] students to theoretical frameworks illuminating legal doctrines and institutions." This course seems most likely of the three new offerings to present "fact-intensive problems as they arise in the world (rather than digested into legal doctrines in appellate opinions) and to generate and evaluate solutions through private ordering, regulation, litigation and other strategies."

The notion that law schools might teach their students to solve "fact-intensive problems as they arise in the world" and not simply to regurgitate "legal doctrines" as observed "in appellate opinions" has the potential to make a real difference in legal education. We legal educators have approached the profession as though dispute resolution were our true calling. The more involved and more expensive the process of solving a conflict, the better.

But this is pathological. Aren't disputes better avoided in the first place? The very existence of an appellate decision testifies to the failure of law to enable the resolution of the underlying conflict by means other than resort to formal adjudication. Shouldn't we aspire to something better -- to thinking of law as the enterprise of applying our best insights about organizational science, human behavior, political philosophy, resource management, etc., toward the goal of peaceable cooperation? I believe that we can, that we should, that we must.

We have built an entire system of legal education on the assumption that high-level, high-cost litigation is the lawyer's supreme calling. This has all the allure of an approach to medicine that favors expensive, intrusive intervention in response to disease over preventive care. Come to think of it, that too would be a fit subject for reform. I'll leave that subject, at least for the moment, to Elizabeth Ann Weeks and other teammates of mine here at the Jurisdynamics Network. For now, it suffices to note that "private ordering, regulation, litigation and other strategies" (which Harvard unfortunately didn't elaborate) might outperform litigation in solving problems, perfecting institutions, and fulfilling human desires. Veritas indeed.