Beyond Washington & Lee: A Call for Practical Exercises in Law School

784496_graduation.jpgWashington & 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.

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13 Responses

  1. Sean M. says:

    I might as well plug the William & Mary Legal Skills program. I am a 1L and just filed my complaint in my hypothetical case. The program is two years long and integrates the traditional Legal Research and Writing course, Professional Responsibility (as a separate one credit part of the program), and a “skills” curriculum.

    The Skills classes are firms and set in a particular state. (I believe we use IL, CA, VA, NY, and PA). We use Federal Rules for procedure and state substantive law. Our clients are role-played by other students, as are witnesses. Starting second semester, students get a client whose case they will take from initial pleadings to pre-trial motion practice to, eventually, a bench trial and appeal (in the fourth semester of the program).

    It’s an interesting way to do LRW and I think similar to what you are doing.

  2. Jason W. says:

    You’re 100% right that large benefits can be gained from simply incorporating certain pseudo-practice exercises into otherwise straight-forward doctrinal classes. The “lecture lecture lecture exam” format of courses at all levels of education has long been discredited. It’s not clear to me why law schools stubbornly persist.

    Programs like W&L and, per Sean M.’s post, W&M are good so far as they go: they get students doing some kind of practical work at some point in their school careers. But they don’t, apparently, go so far as to reduce the reliance on misguided pedagogical methods in other courses.

    One step at a time, though, I suppose.

  3. Orin Kerr says:

    Bruce,

    I’m not sure I follow the argument. If practical skills are essential, but a lawyer can’t just pick up these skills in practice, who are the unusual souls fortunate enough to have learned these skills so they could be taught to the W&L 3Ls? The current law professors presumably don’t have such skills, because they are completely divorced from the real world. But as I understand your argument, current practitioners don’t have them either because they only have what they haphazardly picked up in practice.

    I suppose one way to ask it is this: Do you think that you have the skills needed to teach such a program? If so, how did you happen to get them?

  4. Bruce Boyden says:

    Orin, you seem to be equating “haphazard” with “nonexistent,” and I’m not sure why. I obviously didn’t mean to claim that lawyers don’t learn practice in practice. But I do believe it’s less efficient to put off a substantial number of practical exercises until after law school. Or to quote my post, “Nor is it the case, as these commenters suggest, that such lessons are easily duplicated in the initial years of practice.” (Emphasis added.)

    To answer your questions, obviously I think I’m qualified to teach at least what I’m doing in Civ Pro, and I believe most of those qualifications I picked up in practice — and hardly any in law school. That’s essentially my point. Not that I’m knocking my law school experience. But I don’t think it was the best training in the world for practice, as opposed to academia.

  5. Deven says:

    Bruce

    You may want to check this post http://madisonian.net/archives/2008/01/10/small-teaching-idea/ for other examples of ideas you are investigating regarding teaching. It has links to Mike Madison’s ideas on the topic, my example, and some comments have others as well.

    As a side note, I do think the question of Sam’s comment is important (that is why I linked to the comments), but I am not saying that W&L does not go far enough or too far. The program is too new for me to take either position.

    Nonetheless, I think the issues of how, when, and by whom such training will occur merit more thought so thanks for bringing it up.

    An open question is how one blends doctrine and theory. Hacking through the doctrine and drafting without knowing how to make the hard case (which is at least one place where theory can help practice) would be less than useful. Again I do not think you are taking a position on this point. So perhaps that is for another post. Still if you have encountered this point in your experiment, please share.

    best

    Deven

  6. Orin Kerr says:

    Thanks for the clarification, Bruce. So as I understand your position, it is that people do in fact learn how the real world works while they are in practice, but on the whole we could teach them about the real world more efficiently in the academy than in the real world itself.

    But is that true? I’m not positive, but I have my doubts. In my experience, much of what makes the real world such a fantastic learning experience is that it is actually *real.* Give a young lawyer an actual case with actual people and an actual judge, and the reality of it really sharpens the mind. (Being criticized by an instructor is mildly annoying, but being yelled at by an actual judge really *really* makes you learn.)

    Can simulations measure up to the real thing? Maybe. I know that when I prepped my first jury trial, it felt *exactly* like prepping my Trial Advocacy Workshop trial from my 3L year in law school. But I’m not sure that such simulations are on the whole likely to be so effective that they are as good a learning environment as the real deal lawyers find in practice.

  7. Bruce Boyden says:

    Thanks Deven for that link. I’ve cited myself as an example in this post, but that’s certainly not because I think I’m doing things correctly, so I’m very eager to read what others have to say on the topic.

    Orin, I’m not sure we disagree all that much. Here’s how I would modify your statement of my position: “[P]eople do in fact learn how the real world works while they are in practice, but on the whole we could teach them about the real world more efficiently in the academy and the real world than in the real world itself alone.” In other words, the earlier the better.

    I also stick by my “haphazard” appraisal of practice. You might, under the gun, learn an awful lot very quickly about, say, removal jurisdiction. Of course experiences will vary, but my impression of practice is that what you learn is isolated bits of necessary information, with a framework coming later, and slowly. I think the place to start building that framework is law school.

    But to play devil’s advocate for a second, there’s obviously tradeoffs to exercises and simulations, and I’m not saying there aren’t. For example, I haven’t given up on textbooks entirely and made my students learn Civ Pro entirely from Moore’s. That’s also in answer to Deven’s point above. So far I see exercises as a useful supplement to traditional in-class case or statute reading. (Particularly statutes, but that’s a different post.) You could argue that the time taken away from parsing and making sense of the material isn’t worth the costs, all told. Or you could argue that a mere supplement to the class doesn’t go far enough to be worthwhile. For whatever it’s worth, I’ve been tending toward more elaborate exercises, but there are certainly administrative problems to be overcome (let alone the massive time suck).

  8. Orin Kerr says:

    Bruce,

    Thanks for the thoughtful response.

    I try to add in “the practical side” in my doctrinal courses in a few ways. In my crim law class for fall 1Ls, for example, I start off by making students go into court and watch an hour of a criminal proceeding (sometime in the first 3 weeks of school) to get a feel for what we’re really talking about. I also do mock arguments when I cover causation, to show how to marshal the facts to argue for an against a tough legal standard. I also have a handful of specific moments in the course when I try to make “real life” points. For example, when I get to homicide, about midway through the class, I start asking students where the evidence came from; how do we know what we know? I usually add in a lecture (maybe 10 minutes) at that point riffing about how trials work and about the different kinds of witnesses and physical evidence and how a case is built. I’ve also had a guest speaker come in to talk about her experience as a federal public defender — at least until she went off and became a law professor (cough, Erica, cough).

    I suppose it’s a question of emphasis.

  9. Roger Alford says:

    None of these posts have touched on how such a move will impact elective courses like international law. I strongly suspect that with a traditional 1L curriculum and a non-traditional 3L curriculum, the overwhelming majority of W&L students will forego elective courses such as international law. Why take international law when you only have one year to take core upper-level courses like evidence, corporations, etc.?

    International law is not part of the 1L curriculum at W&L. And 2Ls there have two required courses (Professional Responsibility and Constitutional Law). That leaves a few electives for core classes that will be on the bar plus one or two other elective courses.

    So students who care deeply about international law will not have the time or opportunity to really specialize in the discipline by taking numerous courses (unless they are going to compromise and forego the core subjects). And students who have a passing interest in international law will simply choose not to be exposed to international law at all. One could argue that W&L’s marginalization of international law may be the antithesis of Harvard’s new 1L program that includes international law in the curriculum of every HLS student.

    I recognize that an international environmental law practicum (taught by Hari Osofsky) and an international criminal law practicum (taught by Mark Drumbl) will be included in the proposed 3L curriculum. But how many students will enroll in those classes compared to a traditional international law course? And while those subjects may be well-suited for experiential learning, exactly how does one conduct a practicum on Conflicts of Laws, Foreign Relations Law, Comparative Law, or for that matter a dozen other subjects within Public International Law? Truth be told, many topics within international law do not easily lend themselves to experiential learning.

    I’m sure there are colleagues at Washington & Lee and elsewhere who can disabuse me if I am mistaken. But my sense is that W&L’s new 3L experiential learning program will result in the general neglect of elective subjects such as international law.

    [Cross-posted at Opinio Juris].

  10. Sam Bagenstos says:

    Bruce,

    This is very thoughtful, but I don’t think we disagree much. I certainly don’t think that all we should do in legal education is “simply ask[] students to read cases.” To the contrary, simplistic case-based legal instruction is what I don’t like — as you suggest, it appears to be practical, but it’s not. And advocates of case-based instruction often are pursuing an anti-intellectual agenda that directly conflicts with what my experience suggests makes people better lawyers over the course of their careers. My concern with the W&L plan — and I said in my Leiter comment that the beauty of the market is that some old stuck-in-the-mud like me doesn’t have the final say — is that it pushes even farther towards “practical” exercises that won’t adequately duplicate practice at the expense of the intellectual training that (a) we can do well in law schools and (b) can’t be duplicated in practice.

    I’m fully in favor of students getting a mix of approaches. It would be terrible, in my view, if a student went through law school without getting a significant chunk of practice (through a clinic, for example) and of theory. (In some of my classes — Civil Rights Litigation particularly — I incorporate practical exercises, too. In others, I think what is more important is that the students understand legal or other theory.) But I think we need to be hard-headed about just how well law schools, as compared with the bar, can teach “practice,” and we need to appreciate that “theory” can actually be incredibly helpful for practicing lawyers.

  11. Bruce Boyden says:

    Thanks Sam. I think perhaps where we disagree the most is in our interpretation of what it is that W&L is proposing to do. I don’t see the new third-year program as being part of an “anti-intellectual agenda” or as excluding the sorts of things that make good lawyers as opposed to good document reviewers or library researchers. Indeed, the more detailed statement of the program says that “The new third year curriculum is not a simplistic and mundane substitution of practical study of law for intellectual study.” My own vision for what law schools should include more of, which perhaps I’m reading in here, is not technical practice issues that arise only in the first year or so, but more strategic issues that new lawyers may not confront for years.

    I don’t know any more about the program than what is on the website, so I could be wrong here. But so far as I can tell, it would not preclude someone like me, as part of an “Internet Law” practicum, from assigning excerpts from Hart’s Concept of Law, and Lessig’s Code, and Easterbrook’s “Law of the Horse,” as additional reading beyond the practical exercises for discussion in whatever feedback or discussion settings the practicum courses have (and it sounds like there’s something beyond mere simulation). As far as I can tell, the major difference would be that such readings would then be applied to a practical simulation or exercise to generate thinking about those strategic issues (can you argue here that there is “open texture” to the pre-Internet statute?).

  12. Patrick S. O'Donnell says:

    Bruce,

    I’m curious as to your thoughts about Roger’s concerns.

    Thanks,

    Patrick

  13. Bruce Boyden says:

    Patrick, I mentioned in my post (briefly) that I thought that the problem of specialization and electives to be possibly the most significant difficulty with the proposed plan. But I also think it’s important to avoid getting carried away with negativity here. In particular, I have some doubts about Roger’s concerns. How much are students able to specialize now in international law, either at W&L or elsewhere? Or in anything else, for that matter? That’s the baseline for comparison we have to keep in mind. I think there are going to be very few students in a typical law school curriculum who take international law plus “Conflicts of Laws, Foreign Relations Law, Comparative Law, [and] for that matter a dozen other subjects within Public International Law.”

    Second, it looks to me like Roger is discounting the learning of international law that will actually take place in the context of the practical courses. Why doesn’t that count as specialization?

    He also suggests that interest in international law will drop: “[H]ow many students will enroll in those classes compared to a traditional international law course?” It’s unclear to me what’s driving his concern that international-law-minded students will suddenly decide to do something else when confronted with practical exercise-type courses. Why would that happen? Is it just something about international law, or will all special-interest students adopt a more mainstream courseload for the practical courses? I can’t think of a reason why that would be true.