Harvard and Milbank

The push for higher-quality.

A practical approach to law school? Arthur Miller thinks so . . .

Last month, I wrote an article advocating a "Medical Based Approach" to legal education.  Today, I came across an interesting YouTube clip featuring NYU Law Professor and noted civil procedure scholar Arthur Miller discussing what he opines is a "great disservice" law schools are doing their students these days.  Specifically, he recognizes that, today more than ever in his career, there exists the largest disconnect between the "practicing branch" and the "academic branch" of the legal profession.  

With forceful language, he notes (and I think correctly) that "less attention is being devoted to the skill set for the practicing lawyer"--particularly with respect to legal research and writing.  Why?  "The answer, in part, is that some of . . . [law school's most] basic subjects have simply gotten crowded out by making more academic time available for things that didn't even exist when [he] was . . . a young academic."  The practicing lawyers, who account for roughly 90% of law school graduates, he suggests, are not getting the "skill set development . . . they used to, and part of that skill set is research . . . and its first cousin, writing."

Here is the full video.  If you like, take a look at my post before watching.  Enjoy.

On a "Medical-Based" approach to legal education

We need innovative solutions to some of the emerging problems facing the legal industry.  I sat down and began to think of a way that legal education may be able to adapt and better serve the needs of law firms, other legal employers, and students themselves.  A good model after which the legal educational system could be framed (at least in theory) is the medical school model.  I often sit through class and wonder why theoretical matters are emphasized ad nauseam in various legal courses.  Granted, I think that it is worthwhile to understand (at least to an extent) the underlying policies behind the law; this is particularly true in courses where policy forms the fundamental basis of the rules.  But this only extends to a point, and it must be remembered that, in order to be marketable, students need to understand how to apply the law coherently and logically.

At least plausibly, they get this crucial skill by outlining, reading cases, discussing the gleaned concepts in class, and by simply taking exams.  As it stands now, however, all of this is still done within a paradigm of theory, and there are not many opportunities for law students to, while in the course of their studies, gain practical knowledge--the kind they need to actually thrive in the workplace.  Legal clinics exist, but in most cases, are not mandatory.  And if you've ever tried to get into a clinic, at least at a few schools, you might know just how difficult it is.

A good initial idea would be to keep the first year curriculum much the same as it is now, but to provide different "hands-on" opportunities to apply the concepts learned in class.  For example, students in a civil procedure course could be required to participate in bi-semester externships focused on brief writing.  Further, perhaps the entire third year could be spent in clinical programs that would include rotations between different practice areas so that a student could gain a feel for the area of law he or she is interested in.  Washington & Lee Law School has adopted such a program.  As they state:

The new third year at W&L is entirely based on learning through engagement - combining practicum courses, practice simulations, client interactions, the formation of professional identity and the cultivation of practice skills. Third year students will now move beyond the learning process of the first and second years of law school to prepare for the transition to professional practice.

Students will build on the lessons and law of the first and second year curriculum to pursue a mix of courses that engage them in lawyering, legal clinics and externships. This emphasis on lawyering and expressing professional judgment will serve as a true capstone for a W&L legal education, producing future lawyers that will be ready for practice from day one.

This program would make the third year of law school somewhat tantamount to the residency requirement for physicians, only in the variant described in this post, it would include the ability to rotate.  By producing attorneys who are skilled upon entering the workforce, training would no longer be the employer's sole responsibility.  Hours would be better spent, and clients better served if law schools across the nation were to adopt an approach similar to Washington & Lee's, and provide tomorrow's lawyers with skills they actually need to thrive.

Thoughts?