Tuesday, October 13, 2009

Curricular Reform Revisited

Another Concurring Opinions visitor, Spencer Waller, yesterday offered this post in response to my recent post on curricular reform. Spencer agrees with my basic idea while challenging the usefulness of spending quite so much time on personal jurisdiction in civil procedure.

I am happy to have this opportunity to reconsider my earlier post, which generated a lot of comments. So let’s go over Spencer’s ideas as well as some of the comments on my previous post.

The basic idea of my previous post was that the amount of time devoted to a subject in a law school course does not have to be proportional to the amount of time students will spend on that topic in their actual practice — if that was required, civil procedure would be primarily about discovery practice with much less time devoted to personal jurisdiction and Erie. My reason was that law school is not so much about learning particular skills and knowledge as it is about acquiring the ability to acquire skills and knowledge.

This basic thesis came in for a lot of critical comments. “Mike” and “shg” kicked things off by suggesting that I was in the wrong job and that I was making my students suffer by teaching a philosophy of law course instead of giving students the skills they need to become lawyers. Mike said that “In Civil Procedure, we should have learned the Federal Rules of Civil Procedure as they are actually applied,” which means “a lot of mundane memorization and synthesi[s] of many inter-related rules. That’s it.”

I disagree with these comments, particularly with the suggestion that students only need a lot of mundane memorization of rules and “that’s it.” There are many reasons for this.

Real practice is not just about mundanely applying rules. In my own practice of law, prior to entering academia, I was constantly amazed at how frequently, in routine situations that must arise every day, the law was utterly unclear. As a real practicing lawyer, I was constantly called upon to sort through conflicting opinions as to what the applicable rule was. No amount of memorization could have helped me. It was up to me to discern the rule from, and argue for the rule based on, conflicting authorities. That is the skill students acquire from considering matters from a more doctrinal, policy-oriented, and theoretical perspective.

The law also changes all the time. Suppose, in teaching civ pro ten years ago, I had avoided all theory and had just required my students to memorize the rules and requirements for complaint drafting as they existed at that time. The Supreme Court recently blasted those requirements to smithereens in Twombly and Iqbal. Now what? Oh, you say, the student (now the lawyer) will now just rote-memorize the new rules. But how is the lawyer to know what the new rules are? Everyone’s still struggling to interpret the Supreme Court’s pronouncements. The lawyers who will gain an advantage by knowing the new rules are not going to be rote rule memorizers, but those who are best able to discern the new rules, which requires not just reading them from the opinions (because there is widespread disagreement as to what the opinions means) but a fine sense of how the opinions fit with the whole subject of civil procedure and what the trend is. It requires skills not available to rote rule-memorizers.

A student who has done nothing more than memorize a set of rules is not going to be well positioned to understand and memorize new rules. That takes the skill of knowing how to acquire knowledge. The student who has the latter skill can learn the rules that become relevant in the student’s actual practice after graduation, but someone who has done nothing but memorize rules will be ill suited to handle the changes that constantly come up.

This point also addresses another commentor’s question, about why I thought it important for students to understand how legal change interacts with social change (I observed that personal jurisdiction provides an excellent illustration of this point). Lawyers need to know this because the law is not static. A lawyer’s duty to the client includes anticipating where the law is going, because it might be going there right now. A lawyer needs to understand how legal change interacts with social change because that process might be occurring right now in connection with a matter the lawyer is handling.

Of course, this whole discussion is somewhat unrealistic, just as the comments on my post were unrealistic to imagine that I don’t teach my students rules. It is unrealistic to imagine that anyone is either solely a rule-memorizer or solely a theoretician. A class must include both. As my old civil procedure professor, Harold Koh (now legal adviser to the Department of State), used to say, you have to consider the law on multiple levels — five levels, in his view. You need to have actual clinical practice skills, you need to know the black-letter rules, you need the doctrine and policy that underlie the rules, you need a theoretical and interdisciplinary perspective, and you need a critical perspective. All of these come into play in actual legal practice, and I teach all of them in my course, including a lot of black-letter rules and practice pointers. But theory is an essential part of the picture.

Finally, as any teacher can tell you, a successful teacher must inspire interest in and love for the subject. Some commenters on my previous post complained about those who have never practiced law but who imagine they can teach it. Well, I have practiced law quite a bit, but let me complain about those who have never taught law and who imagine that they could teach it. Let’s have one of you come in and teach a class that consists of nothing but having students memorize mundane rules about civil procedure, and I’ll teach my class, which inspires students to love civil procedure. We’ll see whose students actually learn more. I predict that all of the other class’s students will be asleep and won’t learn much of anything except how to hate civil procedure.

Now, with all of that under our belts, let’s turn to Spencer Waller’s post. Spencer makes the good point that a focus on litigation procedure (not, as I understand him, a mundane rule-memoriazation focus, but more emphasis on that part of the course) rather than personal jurisdiction might be better tied to actual litigation today and might lead to a better understanding of the litigation process. I am not wholly wedded to our customary fascination with personal jurisdiction and Erie and would be open to rethinking things. (Although actually, at my law school, Civ Pro is divided into Civ Pro I and Civ Pro II and we have to adhere to general understandings of what goes in which part, because students may have different professors for the different parts of the course.) But even if I altered my overall time allocations, I wouldn’t alter my overall approach, which would still devote time to policies, doctrines, and critical and theoretical perspectives, rather than having nothing but rule memorization. Even if I increased my focus on discovery, the course wouldn’t be about memorizing every facet of every discovery rule. There would be some of that, but more doctrinal and theoretical analysis of discovery rules.

In my view, a course that was nothing but rote memorization of discovery rules would be the course that would really make the students suffer.

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