CONSIDERING A RIVER RUNS THROUGH IT IN THE CURRENT CONTEXT

I. Introduction: Viewpoints

There are several perspectives from which to view the problems in legal education. One may discuss the matter from a legal scholar's perspective, from a law student's view, from the needs of a normal practitioner of law or from a pre-law student's concerns.

Each approach reflects a different angle on the current problems.

II. The Practicing Attorney's Assessment

A number of essays consider why legal education's methods worked in the 1870s and do not work now. These essays tend to focus on class size, the shift from inductive oral skills to written deductive and analytic skills in the practice of law, and the effect of sheer bulk on the use of the Socratic Method.

The general conclusions reached by most authors are fairly general. More teachers. More writing. The bottom line is more teaching -- and more teaching of relevant skills and information.

III. The Law Student and the Pre-Law Student Concerns

These essays consist of survival guides, pragmatic interpretations (what is really going on vs. what everyone thinks or would like to have going on) and preparing for the confusion by learning the material on one's own. A frightening facet of these essays is that the law school preparation methods endorsed by the new wave can raise the class standing of the user from the bottom third to the top 10% (at a legitimate law school such as J. Reuben Clark) with fewer than twenty hours of effort.

IV. The Scientific Educator's Approach

Cathaleen A. Roach has engaged in much of the analysis the other groups have done. Much of what she discusses reminds one more of the soup de jour than legal thinking. Such are the burdens of writing in the current academic climate.

However, she has put into practice a writing and deductive analysis oriented method of teaching the law that meets the needs identified by practicing attorneys and the concerns of students.

Basically, she has analyzed law school in terms of educational science, and adjusted the program in the manner required to efficiently teach.

V. Educational Issues

There are several issues raised by her methods.

First, students taught by her methods learn more material, learn it better, and can take tests better than those taught by traditional methods. Thus, by every current measuring standard the students become superior.

Second, students taught by her methods learn the necessary written analysis skills required by the modern practice of law. Balanced by practice seminars (more application), they have a superior footing for engaging in the practice of law.

To the extent that she remains an anomaly, her methods will not have an impact.

However, to the extent that any institution begins to implement them, the use of her methods will begin to distinguish superior institutions (measured by the quality of their graduates) from second tier institutions.

VI. Problems, Pragmatic and Real

The problems remaining from her methods are as follows:

(a) Use of her methods requires more "real" work from those teaching law. Regardless of the cultural myths inherent to law professors about the difficulty and challenge of their profession, the methods used by Cathaleen A. Roach require substantial work to implement and use.

(b) Use of her methods requires actual teaching skills by law school faculty.

(c) Use of her methods eventually implies smaller class sizes and altered student teacher ratios.

(d) Finally, her methods focus on writing without a focus or methodology that requires the limiting physical plant (library) size and expense currently inherent in law school imaging.

VII. Recommendations

To the extent possible, her methods ought to be used to teach first year students in law school. Seminars, law focused large section classes (e.g. tax, wills & estates, etc.) and similar second and third year fare receive far less benefit from the methods. Once the skills she advocates have been learned, the students will be able to carry those skills over to other classes. Using her methods, it is probably appropriate to have no more than 75 students in any first year class and preferably 25. Obviously this is best approached in an incremental fashion (perhaps starting with one or two classes, and then expanding).

VIII. Beyond First Year Students

Next, it is appropriate to go beyond the initial skills level of teaching she recommends (which is obviously oriented towards first year students) and focus on second and third year law students. Several matters come to mind.

(a) Subsets of her approach (e.g. weekly problem sets and writing) are appropriate to second and third year learning experiences. To the extent that real teaching is expected, and real learning required, that approach is justified. (Consider Professor Neeleman's problem set approach to his tax classes. Within the restraints caused by class size, he is applying, probably through sheer intuitive genius, these principles).

(b) The focus on co-curricular writing should be increased. While few schools have student bodies whose attitudes would allow making co-curricular writing a requirement for graduation, the more, the better.

(c) Most students should participate in several seminars that focus on practical (vs. scholarly) writing and skills. Roach's method focuses on learning oriented writing. Co-curricular programs focus on demanding scholarly writing. What remains are practice skills classes (for the 75% of the students who have no other way to obtain those skills) that focus on legal practice writing and related skills.

IX. Conclusion

There are substantial, quality related changes that can be made (in an incremental fashion) to the teaching of law. These changes will benefit students in enabling them to learn better and the schools by producing a better caliber of student (with the concomitant improvements in the school's reputation). Because of the substantive and substantial nature of these improvements, it is possible for these methods to become a substantial trend.

Because of the skill and effort required to implement these methods, it is possible that these teaching methods will not penetrate beyond a few isolated cases. It may be that some professors in some schools will use portions of what is proposed, with minimal impact.

But it is possible for much, much more to happen.

Post Script 1: Implementing Change

If I were going to attempt to implement change, what would I do? Well, with minimal disruption ....

1. The Framework

A. I would recruit a civil procedure professor who understood that he or she had to use Cathaleen A. Roach's methods to teach first year Civil Procedure. I would assign that teacher to teach two 60 student sections. (The small section for Civil Procedure would also be encouraged to use the methods).

B. I would encourage professors to provide contextual, theoretical framework (philosophy of law/Barber) outlines in their first class session for all large section classes (especially for first year, but for all classes of 50 or more students). Problem set approach should also be encouraged (and not just in tax classes, and not just one per semester). Students who had been through (A) above would begin to appreciate/ demand that sort of thing from professors. The hard thing is to acclimate the professors to the extra work.

C. I would focus on working towards a better student teacher ratio (to the extent allowed by budgetary factors), with the following teaching focus:

1. Additional practical skills (very similar to the Deem/Kimball Criminal Law Practice Seminars), with writing! One would anticipate that each non-law review student should take three of these (two basic, one advanced. So, one could take Criminal Law, Negotiation and Advanced Criminal Law).

a. Criminal Law. b. Family Law. c. Tort Litigation. d. Probate (the filing rather than the drafting end). e. Small Business Law. f. Negotiation (with an emphasis on drills. Practice. Practice. Practice. Not just a flash lecture). g. ADR as an advocate. (Advanced would be ADR as a Mediator or Arbitrator) h. Civil Appeals. i. Criminal Appeals. j. Federal Practice.

2. At least one theoretical framework skills class offered (this is what the practice of law means, day-to-day, for the 70% or so of you who will go into practice in the small office/solo type practice that the other 30% of you will not see). Currently this sort of thing is offered as a small office practice seminar outside of the school year. (Usually titled the Economics of Law or some such. It misses the essentials).

3. An oral advocacy skills class. (Which is what Woody Deem tried to provide, on the side. At least one class focusing just on those skills).

4. A written advocacy skills class. How to write clearly and persuasively. (All students should take one or the other of these classes, preferably both).

2. The Specific Method.

A. Sell the administration and faculty on the basic concepts.

B. Reprising, next a civil procedure professor who has to use the Roach methods. Preferably a professor with actual practice of law in small firm settings who can also teach some of those skills.

C. At the same time, set up some co-teaching of seminars on advocacy. Bring in someone like Don Norton to teach written advocacy along side a law professor. Bring in someone from the speech department to co-teach oral advocacy with someone who has been a trial lawyer.

D. Start a Practice of Law Seminar.

(You can see my suggesting you load up on the Civil Procedure teacher. Next, when you need another large section professor for a first year class, you do the same thing.)

E. As recruiting and budgets allow, add additional professors with a focus on their ability to also teach seminars and their willingness to apply Roach methods to first year classes. Obviously, this requires, over time, an improved student-teacher ratio but should allow phasing out the small section method, regaining (at least for a while) faculty hours.

3. Theoretical Goals Met.

First, students are taught better in their first year and learn important skills with a great deal less personal stress.

Second, students learn to apply their first year tools and skills to legal settings (e.g. their writing gets switched from legal study writing to legal scholar and practical lawyer writing -- the next important step since they _do_ plan to graduate!).

Third, students learn the material and skills they need to be able to practice law successfully in todays legal climate -- and have the chance to understand that climate -- something few, if any, currently do.

Fourth, students receive a vastly superior legal education.

Post Script 2

Page 685. "Each of these theories [list] emphasize setting explicit goals for learning, designing specific learning strategies, and providing effective evaluation and feedback. Traditional Case Method pedagogy for first-year law students, however, is not currently designed to accomplish any of these goals.

Page 689. "students must write regularly and they should answer practice fact questions in each subject throughout the semester."

Page 690. "The Problem Method."

Interestingly enough, this is what an MBA program would call the Case Method. It is a return to taking "enough" time to develop a case -- as was done in the 1870s when the case method first surfaced.

I'd like to teach a class using Glannon's textbook.

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Copyright 1996 Stephen R. Marsh
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