An Immodest Proposal for a Law School Curriculum

Now that I’m a good many years distant from any actual connection to legal education, I feel free to divest myself of a curriculum, or at least an approach to a curriculum, that I’ve mulled over for a long time and that in my view would approach an ideal of sorts.

My notion doesn’t address directly the somewhat tiresome business of skills training vs. theory or doctrine (or whatever the “non-skill” side is now called). I have nothing against skills, which are fine things; I do have some concern, however, that the inculcation of skills that are seen as important today by firms wanting to hire will serve law graduates poorly inside of a decade, if not sooner. But I’ll touch on this again at the end, perhaps.

The scheme I’d propose has its foundation in both pedagogical and political concerns. Let me begin by taking up the pedagogical concern, the larger and the perhaps easier handle to grasp this thing by.

I have always regarded it as a very great mistake that law schools offer more or less the same program each year for three years. Typically the only real variation occurs with the move from first year constraint to upper years freedom as far as subject matter goes. But the cases, the legislation, the lectures, the time blocking, the exams — all of that — roll on uniformly rather like highschool. I would radically break that pattern.

I would be guided in my new structure by an epistemology of sorts, based in the essentially three ways in which we come to know something and the three sorts of things we come to know. (These can be mapped into a triangle describing interesting connections and regions; but that’s for another time.) The three ways might be labelled, respectively, the scientific, the received, and the personal. I’d ask students to devote the best part of a year to each of these ways of knowing law. The emphasis for each year would be leavened in first and second years by some anticipation of the following years’ approach, and, in second and third years by some retrospective work as well.

First year, then, picks up the students where they are when they arrive at law school: graduates of a university curriculum who know, or should, how to learn about something. This is the “scientific” year in which law students devote themselves principally to learning about law. Here, perhaps, is the most blatantly political aspect of my curriculum — though, everything is political, as we know. It is a source of strength for law schools, and often a source of delight for faculty, that students come to them from every discipline under the sun. Yet it is, in my view, a source of shame that they leave law school with no necessary structured knowledge or understanding of law’s operation in society, its limits, its history, its dangers, and the ways in which it does and does not function effectively. To be sure, gifted teachers everywhere provide measures of this in their instruction, but the result is contingent, haphazard. Lawyers are too important in our political economy to be let loose as ignorant as they are now about their own profession.

There is a great deal to know about law — as there is about any social institution examined from the outside. And the perspectives on law are readily available in the academy and elsewhere: history, sociology, philosophy, economics, psychology, rhetoric, political theory — all of these disciplines and many others are available to build a rich, solid foundation of understanding and inquiry. How wasteful, then, to ignore the possibility in favour of what can amount to training pigeons to peck at levers in the right order.

Second year draws the focus a little tighter, dealing as it would with received wisdom, or what most of us think of as law most of the time. The past, if it does not rule, must nevertheless be taken carefully into account and integrated with current needs. Though skilled analysis and synthesis of decisions and skilled interpretation of legislation — good argument, if you will — are techniques that can and should take a lifetime to perfect, they are not nearly so difficult as is suggested by their being a prime focus of testing each and every year for three years. As for subject matter, there is, of course, far too much in our inflating legal universe to imagine that a graduate of law school might emerge knowledgeable about any but a very few areas. But it is the essence of things that the graduate emerge with the confident ability to discover, digest, and turn to use in advising, drafting or oral argument what the past has to offer to the near future in most any area of law.

In third year, the student would draw the focus around herself, as it were, making it a personal year. Law school, because of its size and, unsurprisingly, because of the very nature of laws and practice itself — applicable to all through universal (we believe) reasoning, along with the “taxi rank” take-‘em-as-they-come view of trade — has a terrible tendency to lose the person of the student along the way. The student’s impulse at every step can be simply to “fit in,” to make herself attractive to those in power over her situation, ultimately the imagined employers. The hope here in a refashioned third year is to approximate something like a graduate school experience, in which students are encouraged and supported to investigate rigorously how their needs and wishes might best be harmonized with or expressed within the profession of law or some other industry.

Personal knowledge is the most difficult of the forms of knowing to work with, it seems to me, based as it is in a lifetime of empirical interaction with the world from a unique point. It is expensive in terms of tutorial time, clearly because it values the individual rather than the mass. It is difficult and to a degree impossible to articulate in words, often finding expression in actions or, hermetically, in insight and understanding. Yet, unless and until law schools provide some serious and supportive structure for the individual student to explore a personal way of being a professional, we will continue to do not simply our students but society generally a disservice. Many, perhaps most, graduates struggle to find themselves within the pressures of post-graduation work, when there may or may not be mentors, time, or opportunity to develop the necessary sense of self as a valuable, critical, creative part of the important social work that is law.

None of what I’ve suggested dictates how the teaching-learning is to happen. My own preference might be for active learning, for a great deal of writing and re-writing, and for reflection. But great lectures, brilliant texts, study group sessions, etc. etc. all have their values, depending on a student’s learning style at a given moment, of course.

And all of what I’ve suggested is highly unlikely to appeal to a profession hungry for fresh whip-smart deal-makers who can bolster bottom lines. Neither is it likely, I suspect, to appeal to students, who far too often regard law school as a series of impediments to a license to getting out there to do something, anything. So I’m comfortable in putting forward this “immodest proposal” in the certain knowledge that no young will in fact be eaten.

I did more or less promise a coda on skills. The danger here seems obvious to me: skilled behaviour is by definition behaviour that is so ingrained, so practiced, that high-level thought is not required to accomplish it. (This is not to say that high-level thought is absent: the skill frees the mind from the need to think about the steps in the behaviour and their assembly, allowing thinking and judgment to be exercised in the manner and purpose of the skill’s execution.) It is important, therefore, to be careful about what behaviours are selected as critical or useful skills. The tendency of the employer is almost always to select for immediately and mechanically useful skills — which, for example, once used to be said to amount to knowing how to find the registry office. This danger to students is exacerbated by what we see to be a rapidly changing, indeed unstable, professional environment, where one can almost predict with certainty that a skill seen as valuable today will prove to be otiose tomorrow if it is at all too narrowly drawn. And more, skills will be required that we can barely imagine today. The irony is that at a time when what’s wanted is a broadening of focus and ability in preparation for prolonged uncertainty, we seem to be doing what the fearful always do at such times, and contract to the tried and once true.

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Comments

  1. Julie Macfarlane

    I like the overall structure of this and especially the focus in third year on the person. I have been teaching an upper year class for about 10 years now that focuses students on what “type” of lawyer they want to be – meaning not whether they practice family, or criminal or general litigation but WHO they want to be as a lawyer and what type of service they see themselves as offering to their clients. In other words, it is about the development of professional identity, which begins with the development of how we see ourselves as people who can serve others.This includes, reflecting Windsor’s themes, particular consideration of access to justice issues and the development of ethical lawyering practices.

    I also want to say a word about skills, having spent 20 years earlier in my career focusing on how and what skills we teach to prospective lawyers. First a few disclosures of a bias acquired over these and more years, a short manifesto if you like.
    (1) I am convinced that learning how to do something is at least as, if not more intellectually demanding than learning “about” it.
    (2) I believe that trying to find a just solution to a contentious matter is as if not more demanding than arguing for its resolution according to legal precedents (I always tell my students that they are mistaken if they believe that mooting is the pinnacle of intellectual achievement in law school – in fact it is learning how to negotiate, mediate and problem-solve)
    (3) Learning how to problem-solve (which includes relating to the people as well as the problem) is a good deal more practical and important for prospective lawyers than being able to find and apply legal precedent, any well-trained monkey can learn to do that and
    (4) I think we make the mistake all the time of imagining that knowledge and skills are somehow binary processes. In fact as I am trying to show above, they are inextricably entwined and all but meaningless without one another. As I think Simon is implying, a discipline like law – and even more, dispute resolution – simply cannot be understood and learned with theory being applied in and to practice.

    We are presently developing a curriculum at Windsor that will hopefully build sufficient faculty support to enable us to offer short mandatory skills intensives to students in all three years. Building on our present Legal Research & Writing program, which will remain, we shall introduce our students to a range of skills including: talking to their clients, making a business arrangement with them, offering case-specific counselling and advice, coaching clients on procedures and strategy, reviewing options and alternatives for problem-solving with them, supporting client self-help and self-care, talking to and negotiating with the other side(s), participating as advocates for clients in mediation and other settlement processes, and a variety of hearings processes. The central concept here is enabling the development of a sense of personal and professional self, and doing what we can in a limited time to enhance both knowledge and skills acquisition for our students who face a fast changing world of legal practice.

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