Designing Second- and Third-Year Curricula by Dean Emeritus Joseph P. Tomain
Legal education has changed little in over 125 years, yet it continuously undergoes critique and re-evaluation if not re-invention. Recent critiques of the legal profession,1 from the perspectives of practitioners, judges, and legal educators, raise questions about the significance of this traditional model.
Three themes emerge from these discussions. First, law is far becoming more complex as exemplified by complex class actions, multilayered regulations, and institutional litigation. Second, the legal world is becoming more uncertain as exemplified by practitioners encountering more competition in all aspects of the profession. Third, law affects more interests as burgeoning legal theories taught by law schools vie for attention. Complexity, uncertainty, and multiple interests make claims on our attention as members of the legal profession and, consequently, make claims on legal education.
These critiques of the legal profession pose a challenge for lawyers and, a fortiori, for teachers of lawyers and for law students. In her book, Professor Glendon writes about the virtue of lawyers and their value to society as follows:
Competent accomplishment of the everyday tasks of lawyers deserves to be celebrated in our complex, pluralistic nation oriented to the rule of law, representative government, and fundamental freedoms. Lawyers cannot claim to have a monopoly on any of the following qualities, but no other occupational group in American society displays the ensemble to the same degree. For that reason, no other group has more to offer American society simply by building on what it has always done best.2
Professor Glendon lists nine attributes that constitute good lawyering which can be briefly described as:3
- The Eye for the Issue. “[P]ractice in discerning the precise issues in the controversy, whether the disagreement is about means to an end or about ends themselves.” It is through this characteristic that lawyers become consensus builders and help identify common objectives.
- The Feel for the Common Ground. “Often it is a lawyer who, in public or private negotiations, comes up with the face-saving compromise that everyone can live with. Effective mediation in situations where deep grievances prevent the partisans from thinking clearly requires mastering the facts, listening exhaustively to all sides, understanding the positions, and patient searching for the scraps of territory on which accord can be constructed.”
- The Eye to the Future. “By training and experience lawyers are accustomed to making shrewd guesses about where trouble is most likely to arise in the future, and adept at creating arrangements to avoid those situations or minimize harm if they occur.”
- Mastery of the Apparatus. “There is no getting around the fact that a regulatory state with a complex economy requires an array of specialists in interpreting, explaining, applying, and coordinating the rules, principles, and standards emanating from sources as diverse as the local zoning board and the United States Congress.” Obvious? Yes, but sometimes we lose sight of the obvious
- Legal Architecture. “Without institutional structures and frameworks, the torrent of laws, regulations, and decisions spilling out from legislatures, courts, administrative agencies, and private associations would not constitute a legal system, but only a regulatory deluge.” It is lawyers that have as their stock in trade the ability to understand the structure and dynamic of the social institutions from which law is generated and through which it is applied.
- Procedure. “Disputes must not only be settled, but settled in such a way as to minimize festering resentment and the renewed eruption of conflict. Good lawyers will try hard to accomplish this result without ever going to court. When all other methods of dispute resolution fail, the legal system is our alternative to private force. Lawyers must master not only litigation and its aftermath, but the negotiations that precede it and alternative methods of dispute resolution such as mediation, arbitration, structured negotiation and the like.”
- Problem-solving. “Many of the most rewarding moments of law practice occur when a lawyer devises a viable solution to a problem that has brought a client to wit’s end or when lawyers for antagonists resolve the conflict in a way that expands the pie for all concerned. . . . If the key to success in problem-solving were individual ingenuity or common sense, lawyers would be of no special use. The added value that lawyers bring to the table, besides specialized training, is a vast fund of inherited experience.”
- Strong Tolerance. “Representing other people, in both friendly and adversarial situations, promotes in lawyers an ability to enter empathically into another person’s way of seeing things while retaining a certain detachment.”
- Incremental Change. “Like architects, lawyers are usually at their best when working with existing materials -- reshaping, recycling, reshuffling, and adding to the useable past, rather than destroying and starting afresh.” It is through building on precedent with past materials that lawyers contribute to social change.
This list of characteristics is also reflected in the detailed discussion of the skills and values of the legal profession contained in the MacCrate Commission Report.
Learning Lawyering Processes
There should be one notable thing in Glendon’s list of lawyering skills, attributes, and techniques—the absence of knowledge about the substantive law.
There is a significant reason for this omission. Part of the reason is that we assume that you will learn the substantive law through all of your courses. You cannot help but learn legal doctrine as you go through law school and as you clerk or engage in extracurricular activities. The deeper reason for the omission is that a lawyer’s value is not so much knowing substantive rules of law, but knowing the processes of lawmaking, the ways and limitations of legal institutions, and the skills and techniques of applying law in different contexts and settings.
If Professor Glendon’s list of lawyerly attributes is accurate, and I believe that it is, then as you put together your second and third year curricula, you should concentrate on learning the various methods, processes, and institutions of law. Secondarily, but not incidentally, you should concentrate on learning substantive rules and doctrines.
The specific challenge for law teachers is to construct a curriculum and create an environment within which those skills and values can be developed. The specific challenge for law students is to take advantage of the curriculum and the extracurricular opportunities that are made available.
There are two fundamental ways that law students can take advantage of these opportunities. One way is to design a second and third year curriculum that will contribute to your professional development. The other way is to engage in extracurricular activities that present opportunities for developing leadership and other professional skills.
Lawyers must have command over the subject matter of their professional lives. However, that subject matter, i.e. the law, does not operate by its own force. Instead, law works through the exercise and application of professional, lawyering skills. These skills are developed outside the classroom as much as your analytic skills are developed inside.
Most of you should prepare for the general practice of law because most of you cannot anticipate what type of law work you will be doing. Therefore, you should take a broad perspective of courses. A broad perspective will develop if you take courses in different categories as well as in different substantive areas. The different categories described below are based upon different methodologies and develop different lawyering skills. By choosing courses from each group you will see law from different perspectives. Students rarely have the opportunity of specializing in a substantive area of law in school and then following that specialty into practice. With perhaps the exception of tax law or patent law, you will develop expertise in a substantive area depending on the needs of your employer. Therefore, think about designing a curriculum based on learning law and lawyering through different methodologies and from different perspectives. If you design a curriculum based on various methodologies, then different substantive areas of the law will follow.
The categories of courses include the following:
- Private Law. These are courses such as torts, contracts, and property, in fact almost all of your first year courses. Private law teaches the basic common law methodology. Since you will have already had these courses, you should be aware of the fact that they are held together by that common methodology. These courses stress appellate case analysis and tend to address past disputes between private parties. Another way of looking at property, torts, and contracts is as a series of rules creating and maintaining private markets.
- Public Law. Courses such as Administrative Law, Constitutional Law, Environmental Law, Education Law, Government Regulation, and Labor Law emphasize more broad-based public policy issues. Instead of being a resolution of past disputes between a limited number of parties, public law generally affects various interests of numerous parties all in one piece of litigation. Public law cases also tend to be prospective and legislative rather than retrospective and adjudicative.
- Planning. Courses such as business planning, and estate and gift planning approach law from a problem-oriented perspective. You are given a complex problem and legal materials and are asked to solve the problem. Instead of the accent being on litigation you are examining preventive law measures, the goal is to keep the client out of court.
- Skills and Externships. Simulated clinical experiences, such as trial advocacy, interviewing and negotiation, etc., are all skills oriented courses. In addition to teaching you techniques about lawyering skills, such courses link technique to substantive law as well as explore the ethical issues contained in lawyering processes. Skills courses may be simulated or live-client and each emphasizes something different about being a lawyer. What the skills courses share in common is that they present a contextual approach to law. You are required to take the law in the books and apply it in the world.
- Statutory. Courses dealing with the UCC or the Internal Revenue Code focus on the interpretation and application of statutes. You must have an in depth experience of statutory analysis as well as the legislative process to practice law. Most of our curriculum conveys the misperception that case analysis is of primary importance. This is not true. Most of a lawyer’s time is spent analyzing statutes and regulations.
- Perspective. Finally, you should seriously think about taking a seminar or a “perspective” course such as legal history, jurisprudence or my personal favorite Law in Literature & Philosophy. These courses take you out of the everyday hum-drum of legal rule recognition and encourage you to think more globally about “The Law.” Seminars or independent research projects, most likely, are the last opportunities you will have to ask grand questions about the place of law in society in a systematic way.
You now have the opportunity to design the remainder of your legal education. Enjoy this process.
1. Anthony T. Kronman, The Lost Lawyer: Failing Ideals of the Legal Profession (1993); Saul M. Linowitz, The Betrayed Profession: Lawyering at the End of the Twentieth Century (1994); Deborah L. Rhode, In the Interests of Justice: Reforming the Legal Profession (2000); Mary Ann Glendon, A Nation Under Lawyers (1994); William M. Sullivan et als., Educating lawyers: Preparation of the Profession of Law (2007).
2. Id. at 102.
3. Id. at 102-108.