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November 26, 2004

Five by Five - Ambivalent Ambroglio

Our final contributor to the Law Student Edition Five by Five is another anonymous law student, Ambivalent Imbroglio -- the only two-time 5x5 contbibutor

1. Make classes smaller - especially in the first year. Classes of 100 or more people are an incredibly inefficient way to learn. They are an efficient way to move people through a degree program, but they are not a good way for those people to really learn anything. Law degrees should not be mechanically mass produced like automobiles. If you cut classes to a maximum of 20 students, you could cover the same amount of material twice as fast because you could approach the material much differently. Large classes allow for almost no discussion; therefore, law professors generally assign too much reading and spend all their class time trying to get one or two students to superficially summarize that reading and pull out one or two main points that the professor thinks important. Guess what? We can get the bulk of that from a commercial outline, and we don't need to mortgage our entire future for the pleasure. Other graduate programs in the humanities and social sciences offer a better model for classroom learning. There, classes are generally "seminars" of 12-16 students. A typical class begins with the professor doing exactly what most law professors do-asking some basic questions and highlighting some main points to make sure everyone has read and understood the material. The difference is, in a class of, say, 20 or fewer students, everyone can ask questions and all of this introductory matter can still be covered in a tiny fraction of the time it would take to do the same thing in a class of 100. In these smaller classes, professors then often give a mini "lecture" on the material, offering background that wasn't in the reading, and bringing in new material and perspectives for students to consider. Then the professor will generally begin asking more serious, in depth questions of individual students about the material, and the majority of class is discussion. This allows students to raise whatever issues or questions they'd like, and it ensures that those questions get treated seriously and that everyone can learn from both the questions and the answers. Finally, so much discussion exposes indefensible views and biases, while giving a fair airing to those for which legitimate arguments can be made. Having spent four years in such classes, I can say that they were much more difficult intellectually, and therefore much more rewarding. But more important, they're simply a much better format than the 100-per-class model for addressing the complex moral and ethical issues at stake in every area of the law. I won't attempt to seriously address the financial repercussions of cutting every law school class to a max of 20 students, but possible ways to cut current expenses include: cutting faculty pay by 20-40% at the top and 5-10% at the bottom (enough good people are dying to teach that this won't damage faculty too seriously; if you're a law professor in it for the money, you should get out, anyway); spending less money on aesthetic improvements (flatscreen monitors that are nice to look at but largely useless, lots of wood panelling, leather couches) that do very little to improve education but merely attempt to raise a law school's U.S. News rank; locating law schools in lower rent parts of cities and towns, etc.

2. If you must have large classes, make use of teaching assistants. Since it could be a while or never before law schools get to smaller law school classes, then fergoodness sake, make better use of your top 3Ls by employing them as teaching assistants in those enormous classes. Three-five TAs per 100 students could meet for an hour a week in small sections to lead discussion of the issues that get skimmed right over in class. They could also manage web discussion boards and class blogs where students would be encouraged (and required) to participate in the conversation. The goal of all of this would be to get every student engaged and thinking critically about the material, rather than simply trying to memorize rules and cases to regurgitate on an exam. The TAs could be paid or volunteers, but the experience could be good for a couple of credits for 3Ls-especially those who think they might one day like to teach.

3. Forget about "blackletter law" for the first semester or year. The first semester should be general legal history and theories of what law is, where it comes from, the possible ends it might serve, different legal systems around the world, and a basic introduction to major schools of thought about the law ("crits," formalists, law and econ, social justice, etc.). This new "context" curriculum for the first semester should also include serious examination of the difference between practicing law in the public interest v. practicing in the private interest-and isn't simply that one of them pays more money. Why rearrange the first semester or first-year curriculum? Because this would teach students what it means to ask questions about what they learn and show them where to look for both the questions and different perspectives on their answers. How can you think critically about a law and econ approach to torts if you don't know what "law and econ" means or what it stands in opposition to? You can't. And where in the current typical first year/first semester curriculum is a law student supposed to learn this? The idea seems to be that one of the 1L profs is bound to mention what law and econ means at some point, but the random approach is no way to show students the terrain on which they're going to live and work for their legal careers.

4. Drown professors in fines and peer opprobrium when they encourage students to become evil - even or especially when such encouragement is only implicit. From day one, my law school experience has been peppered with little jokes from professors and administrators through which they express their assumptions that their students are going to graduate and immediately begin doing anything for money, regardless of the moral or ethical consequences. These jokes come with a sort of wink in the form of, "I know none of you would ever rob six American Indian tribes blind, but the attorneys that did sure made a lot of money!" Ha. Ha. Ha. These jokes seem to come almost unconsciously from faculty, probably as a sort of cynical defensive mechanism they've developed to protect themselves from being paralyzed with horror by the awful things that lawyers sometimes do. However, here's where faculty need to take a serious stand; they should be condemning such humor and behavior in the strongest terms, making an example of any faculty member who feels it is professionally acceptable to suggest to students that, while it's officially wrong to lie, cheat, and steal, as an attorney, that's what you'll get paid for. The point of this reform is larger than putting an end to this form of dark humor in the classroom; the real objective is to require faculty to model good professional behavior to their students and to accept nothing less. This could be the beginning of a profession-wide renewed commitment to ethical lawyering. Faculty could join collectively in condemnation of every scandal that hits the news involving attorney misconduct, spending 5 minutes in each class pointing out what the attorney did wrong, and making sure every student understands that such behavior is a disgrace to the profession-not with a joke and a wink, but with serious and uncompromising disdain. The ABA could follow up by demanding that state bars institute serious, effective, and efficient malpractice grievance and punishment systems to help weed out the "bad apples" and begin showing the public that lawyers really aren't the slimy subhuman species they so often appear to be. So long as the profession-at every level-tacitly endorses lawyer crime, lawyers will continue to be criminals.

5. Make clinics, internships, and externships mandatory, and/or make a J.D. a two-year degree. Breadth in education is great; however, law students pay too much damned money to waste time in a third year of law school simply for the sake of being more well rounded. The law degree could be a 1-yr. degree plus a 1-2 year apprenticeship, or it could be a 2-yr. degree with no apprenticeship, and the world would not suffer one bit. In fact, society would benefit b/c more law students could get through law school with small enough debt loads that they could actually afford to work in the public interest instead of the corporate/private interest. Seven states already offer ways to gain bar membership w/one year of law school or less; more schools should support such programs and encourage them in their own jurisdictions.


I am not sure that smaller classes are the answer to better discussions or increased learning. It takes many 1L students a full year to understand that they are in a graduate program and that they can no longer coast, as they once did in their undergraduate programs.

I teach Torts in two sections of 30 students each, though occasionally I have had to teach all 60 at one time. With 30 students more of them get to participate, thus smaller is better in that sense. However, in the larger classes the discussion tends to be better because there are more students, thus all of the students hear better answers.

Law schools could go to a model that has 20 to 30 students per class, but keep in mind the financial implications. Under current accreditation rules professors are only allowed to teach 6 credits per semester, and in the elite schools professors only teach 9 credits for the entire year (6 in one semester and 3 in the other) in order to allow them more time for scholarship. Let’ see. One professor teaching 100 students or 5 professors teaching 20 students? Tuition would jump to $40 or $50 thousand a year—this amount is unreasonable and would lead to increased inaccessibility of legal services by the poor. The current approach is sound: large classes in the first year and smaller classes in the second and third year. Ideally, I might want private one-on-one sessions with Civil Procedure guru Arthur Miller, but frankly I can’t afford to hire him at his rate.

One thing which can be done, and which I have implemented, is the creation of small groups. All of my students belong to a small group with 3 to 5 students apiece. They have short weekly assignments and a larger mid-term project. This allows them to teach each other and is financially possible.

Georgetown is currently offering some sort of alternative cirriculum in which a great deal of time is spent on legal theory, learning about "crits" and realists and formalist and whatnot. Obviously I don't go to Georgetown, or I could give you some real information about it.

I think it's a little odd, though, that you're proposing to both delay the substantive courss and shorten the program. When will any learning get done?

No more theoretical approaches to law school! My school is centered around economic efficiency, the Coase Theorem, and pareto-optimal outcomes. Somewhere along the line, I've missed out on why I went to law school in the first place. I'm not saying that we should resort to pure black-letter law, but some of us would prefer to learn the law rather than pursue a PhD in economic theory.

"Make clinics, internships, and externships mandatory, and/or make a J.D. a two-year degree."

I think at least two years is necessary, even though I am a supporter of law school being three years. One year does not provide enough time for a law student to learn enough of the basic substantive law. For example, without a second year, I would not have taken constitutional law or evidence. Any attempts to squeeze more into the first year would result in classes where the content is too watered down.

Also, if law school were changed to two years or less, it would seem silly (more than it already is) to continue to call a law degree a "Juris Doctor" degree. If it ever happens, I hope law schools call the degree a master's degree.

And your second point is addressed at my school; all my classes have student TA's, and although the quality certainly varies, most are quite helpful. My torts TAs are *excellent*. They hold regular office hours, review sessions, and have helped with practice exams as well.

Interestingly, your third point seems to be well-addressed by Columbia: in our second semester we have a "Perspectives on Legal Thought" course, which for the most part covers either basic ideas in legal thinking (vagueness, indeterminacy, etc.) and the major schools of legal thinking. It's quite controversial, but easily one of the most useful courses I've taken so far. We also have a course called "Foundations of the Regulatory State," which for all intents and purposes is Law & Econ and its discontents.

Both are mandatory, which is why we do Property in the second year.

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