Beyond Washington & Lee: A Call for Practical Exercises in Law School
posted by Bruce Boyden
Washington & Lee’s revision of its third year into a practice-based curriculum has attracted a considerable amount of attention in the law prof blogs, including a fascinating post from Deven Desai below suggesting that even W&L’s program may not go far enough. Over on one of Brian Leiter’s blogs, Leiter’s post drew several interesting comments, including several from Washington & Lee faculty members and students commenting on the theory and thought process that went into the decision. My wife and I both taught at W&L as visitors last year, and while we weren’t part of this debate, I was very impressed by the school and in particular with how W&L handles its first-year curriculum to address similar concerns.
But I was most interested to read two comments critical of W&L’s effort on Leiter’s blog, the first from an anonymous correspondent of Leiter’s quoted in his post: “If 100% practice is the way to run the third year, isn’t the obvious answer to make a J.D. program a two year affair?” Sam Bagenstos followed up in the comments in a similar vein:
This seems like a low-road strategy to me. Even if we stipulate that the major goal of our pedagogy is to train lawyers … the question is what kind of lawyers are we training our students to be. The best schools have or should have as their goal training people to be outstanding lawyers (and ethical, responsible professionals?) over the course of a career. The new Washington & Lee approach, I hate to say, is more closely directed to training students to be the best first-year associates they can be. I’m quite sure that a student who goes through that program will, to coin a phrase, be “ready on day one” for the kinds of tasks that new lawyers do on day one. But I’m far less certain that a student who goes through that program will be a better lawyer over the course of a career. I doubt that law schools have much of a comparative advantage over practitioners in the kind of on-the-job, practical training that is the focus of the new W&L third year.
I believe both of these comments are profoundly mistaken. I believe it is crucial in legal education to go beyond simply asking students to read cases and instead require students to apply those lessons in practical settings. The understanding of an appellate decision that comes from simply reading and discussing a case is a hollow form of understanding. It is understanding without context, and pedagogical studies have shown that context is critical to forming long-term memories. The student cannot begin to incorporate cases or doctrines into their broader context until the practical significance of the holdings or rules is made clear.
And that only happens when the student actually tries to use the case or rule in an argument, or advise a client what it means, or draft a contractual provision that handles the legal principle at issue, or use it in a negotiation with opposing counsel. A few minutes of dialog in a large lecture class simply cannot achieve that level of understanding. An exam is the first place where many students are asked to apply a rule in a practical-type situation (the client’s tale of woe as issue-spotter), but it is perverse to teach a class through–and only through–the exam.
Nor is it the case, as these commenters suggest, that such lessons are easily duplicated in the initial years of practice. No practicing lawyer has the time to supervise subordinates closely enough, or impart their wisdom in a direct fashion while working through an issue. Lessons in practice come haphazardly and through trial and error. It is key that the students start learning those lessons as soon as possible, and ideally in a structured environment, with detailed and knowledgeable feedback, and in a setting where mistakes are not catastrophic. If that can happen anywhere, it’s law school, not practice.
That is why I’ve always required my students to do some sort of practical exercise for my classes, even the seminars. This semester I’m requiring my Civ Pro students to litigate a hypothetical case. I was inspired to do this by an article I read in the Journal of Legal Education, Lloyd C. Anderson & Charles E. Kirkwood, Teaching Civil Procedure With the Aid of Local Tort Litigation, 37 J. Legal Educ. 215 (1987). I divided the class into groups of three–each its own “law firm,” the idea being to get students used to the idea of collaboration and sharing workloads–and then assigned half the class to represent the plaintiffs and half the defendants, for 15 cases in all (all litigating the same facts). I’ve made minimal concessions to the fact that this is an exercise. So, plaintiffs had to do everything from filling out a civil cover sheet to filing proof of service; defendants had a choice of answering or moving to dismiss (most answered). Oral arguments take place on designated motion days at the beginning of class. The cases will proceed through discovery to either settlement, summary judgement, or to being scheduled for trial (and left unresolved). No discovery tool is off limits, although in retrospect I should have artificially mimicked the financial incentive to minimize discovery in some way.
So far, I think it’s going really well, with a considerable amount of overlap between the cases and the readings we’re doing in class, albeit with some suboptimal adjustments to the reading schedule. The real test, of course, will be whether the students get something out of it, which unfortunately is not necessarily the same question as whether they think they’ve gotten something out of it. (Nevertheless, if any of my students want to offer anonymous but polite feedback in the comments, feel free.)
None of this means that W&L’s path is necessarily the correct one to take, even though I think W&L’s plan is exciting and daring and I applaud them for it. Brian Leiter notes the inconsistency between the kind of professors that one might need to teach such classes, and the kind that lead to prestige in the legal academy, a problem I’ve commented on before. And possibly even more significant than that is the problem of scheduling electives so that students are able to concentrate in the areas that interest them; even if W&L has a schedule mapped out for the first year of the program, how well will that hold up when the excitement of the new program wears off? One possibility, which I don’t know if it was considered, is to reduce the required curriculum of the first year to offset the impact of required courses in the third year.
But a school does not have to overhaul the curriculum in order to achieve the benefits of practical exercises. Indeed, I think such exercises can be incorporated into individual classes, as I have done. Even something as simple as a weekly hypo begins to get the students to think beyond the particular cases in the textbook. I think that’s a critical, not superfluous, part of legal education.