Just how do law students learn how to be lawyers?
It's no wonder law schools have a conservative image. The students learn what their teachers learned, which is what their teachers learned, which is. . .
Perhaps one of the least known facts about formal lawyer training in the 169 American Bar Association certified law schools is the high degree of consensus on curriculum content.
Any survey of extant curriculum, any discussion with legal educators about curriculum, as well as any reading on the history of the subject, quickly establishes that when it comes to course content, law schools are one of the most rear-view mirror institutions among US professional schools.
This doesn't mean law schools don't know where they are going, or that they haven't gotten their graduates there most of the time. It's just that no one graduates from law school without experiencing the conserving and nurturing function of the American legal system and its common-law heritage.
For example, a survey of law-school course offering conducted by the Council on Legal Education for Professional Responsibility Inc. shows a remarkable consistency in the required subjects taught.
Dating from World War II, the typical course offering for more than 80 percent of first-year law students will very likely institute: contracts (6 semester hours), criminal law (3), constitutional law (3), legal research and writing (2).
And by the end of a three-year program all law students would have had class work in these areas as well as courses fitting the general categories of legal ethics, legal method/process, evidence, business organization, and taxation.
A conventional legal education consists of (1) relatively large classes (usually 50-150 students) that engage in analyzing 'cases' (usually the opinion of appellate courts) by the Socratic method (the teacher asking questions, the students answering); (2) seminars on topics quite removed from those treated in large classes and utilizing a diversity of materials; and (3) independent research, mainly on or for the law review.
Richard Huber, dean of Boston College Law School, does not see uniformity as all that bad. "With the major but diverse role lawyers play in society it is important that they guard against specialization, at least while they are in school."
Rather than a uniformity of course offerings, Dean Huber is more concerned that "law of schools have not been good at persuading foundations or other agencies to fund them. [After all he posits, the law is meant to be uniform.] Underfunding results in much less flexibility than legal educators would like with large classes, especially in the fundamental courses."
On the whole, he says, a poor faculty-student ratio, when by undergraduate standards, exists at far too many law schools.
A critical factor when considering law school curriculum is that admittance to gainful practice of law hinges on passing ABA sponsored state bar exams. The curriculum must reflect the need of law students to successfully complete bar exams and law schools that fail to do this won't exist.
Milton Katz, with teaching assignments at both Harvard and Suffolk Law School in Boston, suggests five functions that a law school performs for its graduates and society:
* Train the graduate to make a living.
* Provide reasonably qualified members for the practicing bar and the bench.
* Provide graduates who will make significant contributions to the progressive enrichment of the legal system.
* Train and equip people to render civic and governmental leadership for state and federal legislatures as well as administrative government positions.
* Preserve, transmit, an add to, the general body of information surrounding the law and an understanding of its relationship to other bodies of knowledge, especially so for those law schools attached to a university.
Legal educators agree that the single biggest recent change in law training was the introduction of clinical-law education.
Clinical education refers to learning by doing: teaching a law student by having him or her actually perform the tasks of a lawyer. The student undertakes to offer a specialized legal service to someone who needs a specialized legal skill. It is the practice of the profession as a student under faculty supervision.
In a limited way clinical education at law schools may be compared to practice teaching for education majors. It arose out of a perception that any shortcoming of law school training lay not in learning fundamentals, which are and have always been developing analytical skills amd familiarizing students with the working of the law in general, but in the practical application of those fundamentals.
The evolution of clinical education is an excellent example of how a consensus for change in law school curriculum occurs. Beginning as an innovative program at Harvard Law School in the early 1960s, the ABA Task Force for Legal Education and Admissions to the Bar found that in 1979, more than 80 percent of the country's law schools and clinical offerings and that they are elected by one-quarter to one-third of all law students.
Looking to the future one program that is unique in professional law schools and bears watching to see if it follows the pattern of Harvard's clinical concept is Northeastern University's Cooperative Legal Education.
Cooperative education takes the idea of clinical education a step beyond all other law schools. It is Northeastern's attempt to meet the challenge to law schools in implicit in Chief Justice Warren E. Burger's much publicized criticism on the trial bar.
Deviating from standard first-year course requirements, Northeastern requires six hours of clinical skills training. Preparation for the actual practice of law, and particularly advocacy is emphasized.
After completion of the first year, students alternate their next eight quarters between and academic and cooperative work experiences with a number of cooperating private, corporate, government, and public agency law firms nationwide. At Northeastern, the academic year runs on a 12-month basis.
Students receive credit for their cooperative work experience and must successfully complete four such work quarters in order to qualify for a degree. Employers are furnished a form on which they evaluate the student's performance. This evaluation becomes part of the student's academic record.
Michael C. Meltsner, dean of Northeastern University Law School, says that "upon return to the classroom, students will have an opportunity to evaluate their work experience in a much more realistic and beneficial way."
With more than 500,000 licensed attorneys in the US, and estimates by the American Bar Association that approximately 360,000 of them actively practice law, the US has the greatest number of lawyers as a percent of population of any of the Western democracies. Knowing something about their training is requisite for an informed citizen. And in assessing law school curriculum historical precedent may be the guide -- changes, when they do happen, happen slowly and by consensus.