Legally Speaking: Teaching what matters

By John G. Browning | Jun 11, 2013

At a March dinner commemorating the 40th anniversary of the University of New Hampshire School of Law, U.S. Supreme Court Justice Antonin Scalia gave a speech in which he proclaimed modern legal education a “failure.”

Decrying the course offerings that crop up in today’s law schools as less academically rigorous than in the past, Justice Scalia said that “the teaching of the law has failed.”

A major part of the problem, he points out, is the proliferation of elective courses that often have little to do with the law itself and which encourages lazy students to bypass “the austere pleasures of doctrinal courses.”

“We now have classes in the law and . . . the law and literature, the law and feminism, the law and poverty, the law and economics,” Scalia lamented.

His remarks echoed a speech he gave last fall at the University of Wyoming, in which he encouraged law students to avoid “frill courses” and master the basics.

“The only time you’re going to have an opportunity to study a whole area of law systematically is in law school,” Scalia points out.  “You should not waste that opportunity.  Take the bread-and-butter courses.  Do not take ‘law and women,” do not take ‘law and poverty,’ do not take ‘law and anything.’”

Justice Scalia attributed part of the blame for the spread of such specialized electives to legal academics, saying that law professors gravitate toward courses based on their narrow scholarly focus.

“Because there are so many professors teaching their hobbies,” Scalia notes, “the rudimentary courses are not taught with the frequency necessary for everybody to take them.”

Yet at a time when law students and recent law graduates are facing the most challenging job market in decades, and amid fierce criticism of law schools in general for not doing enough to prepare their students for the actual practice of law, exotic electives remain more popular than ever.

Are you obsessed with “Vikings” on the History Channel and want to learn more about feuding cultures in the Icelandic age?  Then the course on “Bloodfeuds” offered at the University of Michigan Law School is for you.

If you’re keen on the emerging realm of self-driving cars, then drive yourself over to Stanford Law School for the “Legal Aspects of Autonomous Driving” class.

The “Pornography and the Law” course at Wake Forest University Law School may disappoint those with prurient interests or budding First Amendment careers in mind; the class explores the social and legal status of women, examining gender equality issues.

And at the University of California at Berkeley Law School, it’s perhaps fitting that the course catalog features a course on meditation and deep breathing through the Chinese practice of Qi Gong—a class that Professor Charles Halpern says helps law students deal with the stress and anxiety that accompany being a law student and a lawyer.

Of course, law schools and professors are quick to defend the quirky electives.  Michigan Dean Evan Caminker says the “Bloodfeuds” courses can help develop negotiation skills.

Bryant Walker-Smith who teaches the “Autonomous Driving” class at Stanford describes it as a way to teach torts using modern automotive class action suits rather than the dusty 18th Century English cases that populate most torts casebooks.

Meanwhile, Dean Frank Wu of the University of California-Hastings College of Law says that electives are more important than ever to today’s lawyer, as law practice becomes increasingly specialized.

“The future of law is actually about people who have multiple skill sets,” he says.  “The fact that something looks obscure doesn’t mean it’s impractical.”

Indeed, there are niche offerings that have gone on to provide careers for some.  The first animal law course was offered some 20 years ago, but today many law schools have added it to the curriculum and the numbers of those practicing it full time are growing (Lewis & Clark Law School even began offering an LLM in animal law last year).

The legal issues involved in the world of computer gaming have spawned electives at law schools around the country, with law schools like SMU Dedman School of Law hosting legal symposia and bringing law students together with current and future generations of game developers eager to compare notes on emerging intellectual property issues and other legal concerns for the booming gaming industry.

Among the practitioner ranks, however, exotic electives get little support from legal employers who prefer practice-ready associates who have filled their class schedules with more “nuts and bolts” classes.  As well-intentioned as the law professors may be about deep breathing and Icelandic bloodfeuds, let’s not forget that, according to American Bar Association statistics, the average law professor has about two years of practice experience.

For many, that includes time spent as a judicial clerk or in a Biglaw firm doing document review—hardly the sort of hands-on, in the trenches experience that employers demand.

As talk swirls of abolishing the third year of law school entirely or revamping it to emphasize practical skills and clinical opportunities, law firms continue to face mounting pressure from clients to not train young associates on the client’s dime.  It has become increasingly common for companies to dictate that no inexperienced lawyers should be billing time to their files as they learn how to draft routine documents or accomplish other tasks.

Robert Carangelo, hiring partner at Weil Gotshal & Manges LLP, articulates a view held by not just Justice Scalia but most employers when he points out that “If law schools want to employ the vast majority of graduating students then they should be offering mostly mainstream classes . . . . Stick to the basics.”

There is a way to sprinkle in electives with practical value among the core classes needed to pass the bar exam.  For example, with an aging population, elder law is likely to take on greater importance as an elective.  Why not supplement an elective in a growing area like that with clinical offerings that provide practical skills training?

The intersection of technology and the law grows in importance and complexity every day with electronic discovery and the use of social media platforms expanding to virtually all practice areas.  The Rules of Professional Conduct now mandate that, to be competent, a lawyer must not only stay current on changes in his or her area of law, but on the “benefits and risks of technology” as well.

In a profession with these sort of expectations, law schools are doing a disservice to students when they offer an elective on “Law and Literature” but not a course on how to find and use electronically-stored information in everything from a garden variety slip-and-fall lawsuit to complex class action litigation.

A good law school curriculum should be like a good nutrition plan.  The required courses of the first year and the core courses that follow are like the vegetables you don’t like and the protein you need, while the electives that are offered should be healthy but tasty alternatives—the fruit or low-fat yogurt that are enjoyable but still good for you, instead of the junk food that will be little more than guilty pleasure and empty calories.  Just a little food for thought.

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