[Guest post from Washington and Lee University School of Law Professor James E. Moliterno]
Are law schools in crisis? Certainly there has been some embarrassment in the revelations about common rankings strategies and student-getting activities. But the relatively easy access to student loans to finance the high cost of legal education, and the remarkable resiliency of student demand for our product have insulated legal education from the harsh effects of the economic downturn. Law schools are not in crisis, at least for now.
Like others, I believe in legal education’s power to open opportunity for graduates. But the market must eventually force a downturn in the numbers of entering students. And the practicing profession, if it heeds the advice of forward-looking prognosticators such as Richard Susskind, will find a way to maintain the economic viability of the law firm.
So, shall we do no more than bemoan the current circumstances and curse the misbehavior of law schools and express surprise at the continued desire of large numbers of students to undertake risk? I think that the time for hand-wringing has passed. The time to do rather than talk has come.
As law faculty, we need to recognize what we can and cannot accomplish. The economy will be what it is and its effects will be felt, no matter how much ink is spilled over it. More transparency is a useful measure. We should pursue it. I expect it will dampen demand for law school, reducing it to a level more in line with the realistic hope for opportunity that law graduates should entertain. I believe in legal education. It should be engaged by the right number of students, with the right motivation, so that they can realize its marvelous benefits.
What else can we do? We can make legal education better. That is our bailiwick. That is what we are equipped best to do.
One path is to try to recover from the mistake made by legal education in the late 1800’s. At the time, both medical education and legal education were reformed, as “scientification” was the order of the day. Medical education decided that its job was to create doctors; legal education decided that its job was to create law professors. Incidentally, some of those graduates might actually practice law, but that was no concern of legal education. In the roughly 125 years since these reforms, legal education has struggled with its tenuous relationship with the legal profession. Now, with every constituent demanding that legal education become more valuable to its graduates, to their prospective employers and clients, we can instigate a 21st Century reform.
This reform should not throw out the good just for the sake of change. Many aspects of legal education work wonderfully. Much of what happens in the first year retains its magic; much of what happens in the second year allows students to be exposed to the range of core legal subjects that any educated lawyer should have in her arsenal. But the third year can and should serve as a transition to the students’ lives as lawyers, judges, public officials, and yes, even law professors.
At Washington and Lee, we have adopted a third-year curriculum that requires students take a full load of experiential education: clinics, externships, practicum courses that simulate an array of practice areas, and two week intensive immersions on both transactional and litigation skills and theory. Each course is a mixture of law, theory, skills and ethics. Students learn the relevant law and theory as lawyers do, with problem-solving and client service as motivation, rather than as students do, with a final exam on studied material as their motivation. The transition to a lifetime of engaging law as lawyers do is necessary for adoption of the professional role and mind-set. This is what a third year of experiential education accomplishes.
Obviously, I like what we have done at W&L. But my message here is “do something to make legal education better, and do it without destroying what legal education does well.” If you like our approach, move toward it. If you have another idea, explore it and pursue it.
Follow Voltaire’s advice: don’t let the perfect be the enemy of the good. Waiting to try experiential education methods until every conceivable kink has been worked out will delay forever the positive that can come from these efforts and course designs. We can learn from one another’s experience and from our own, just as we are teaching students to learn how to learn from theirs.
The time for hand-wringing is passed.
James E. Moliterno
Vincent Bradford Professor of Law and John W. Elrod Law Alumni Fellowship
in Teaching Excellence, 2010-2011
Washington and Lee University School of Law