The Volokh Conspiracy

It's nice to see the addition of an 1L international law class. I was lucky during my three years at my tiny law school to have taken three transnational law electives and I've never been the same since (in a good way).

Orin:

P.S. - when do expect to return to OrinKerr.Com?

To respectfully disagree with Pete Freans, I think a required course on international law in the first year is a stupendous waste of time.

This looks like a good start.

The trend to have an international perspective makes sense to keep US lawyers in the running for international work, now disproportionately gobbled up by UK (Commonwealth) types.

I also support the idea of semester abroad programs for law students, which seem to be getting more popular (assuming they are at equally good schools - like Harvard to Oxford or Cambridge).

Another change needed - mandate some practical experience, internship, externship (with a judge, top law firm, agency, prominent in-house lawyer, etc.).

For an honors degree, why not require some meaningful researching and writing (blogged as it unfolds)?

The second and third years of law school need to be made more productive. Editing of law articles is ok, but what about the folks not editing articles? And why is editing someone else's article necessarily such a big deal compared to researching and writing one's own multimedia work? Writing a note for a law review is much too "dead tree" focused when we could have law students generating blogs supported by photos, YouTube video, audio plus text. Some demonstrated expertise in use of computers should be required for graduation.

I've heard that Evidence isn't even a required course at Vanderbilt Law. Is that the case at Harvard?

Probably it's too much to expect that law school should turn out, you know, lawyers, but at least they could have 3L be the branching-out point, where wonks get to take int'l law etc. and lawyers get to ... um ... graduate early and start learning how to practice law?

JB,

International law is very fashionable in Cambridge, Massachusetts. International law = law not made by the GOP. Remember, there are no red states in France!

Evidence was a required course at my law school.

A better approach in my view would be what in undergraduate education is known as distribution requirements. Offer the usual required courses and then require selecting from a menu of courses -- one from column A, one from column B -- that cover international/comparative law and legislative policy. I would add something that covers history/philosophy/economics/literature, but that's just me.

I took Property from Gary Lawson at Boston University. The first day of class, he told us that he thought the 1L Property Law class was redundant, so maybe the 1L curriculum is due for a revamp.

"It seems to me that relatively view advanced law school courses build on property law." Really? Maybe not many sexy public law courses do (though can you really understand parts of con law without a basic understanding of property law?), but a lot of private law classes do, especially in commercial law. Far more, at any rate, than build on torts or criminal law.

Perhaps it seems "tradeschoolish," but I would think the law schools have at least some obligation to prepare students to pass a bar exam, and removing or downplaying some formerly mandatory courses might cause problems there.

I think that the property requirement is just a further exercise in figuring out common law legal reasoning, and maybe it could be done away with given the torts and crim requirements. (I also agree with Orin that Crim and Crim Pro should be split up).

If we got rid of the property requirement, I would probably replace it with business organizations, evidence, tax, or administrative law.

I do think that both constitutional law and international law are good requirements (even if you're just dealing with, e.g. international arbitration) but I also believe that both are difficult enough that perhaps they should be delayed past the first year.

Of course, I've laid out enough requirements that there would hardly be any electives left, which isn't a bright idea.

My guess this internationa law is "international human rights law with an occasional mention of things like The Charming Betsy to give it a patina of validity. If one were interested in internationa transactions, I suspect it will be totally useless.

<blockquote>
To respectfully disagree with Pete Freans, I think a required course on international law in the first year is a stupendous waste of time.
</blockquote>

I would describe it as a stupendous waste also for 2L and 3L's... and practitioners... and anyone, really.

But property law didn't seem to fit in as much with upper level classes that a lot of students take. Is that wrong?

Wills &Trusts comes to mind, as does Real Estate Transactions. So basically I disagree somewhat with your premise, i.e, that Property doesn't tie in with upper level classes.

Evidence isn't a required course at most schools

All those law grads, still wondering what that "Objection, Your Honor" stuff was all about ...

I do think a legislation and regulation class (and I presume it will deal with statutory interpretation) should be required, but not in the 1st year. most areas of law are now statutory after all.

I would also require additional classes on research and writing. I see the work product of many law students and it appears they need more practice in finding, and properly using, legal authority.

I can testify in no uncertain terms that my 1L required Legislation class was the most worthless class of my law school career. It was also a very partisan class. The entire text was an attack on Scalia. (Eskridge, Frickey &1 other, Garret maybe).

Sounds like a wonderful idea. Let's produce more law school grads who have taken every rediculous policy based course (anything beginning with "Law and..."), but don't have the faintest clue about the nuts and bolts of the law. Particularly among the Ivy League grads that I've worked with, there is a frighteningly large number who don't know the basics of evidence (because they've never taken it), don't have any idea about procedure (federal or state), and don't seem to care. I suppose if you view your educational mission as producing appellate judges, then this type of curriculum is fine, but to the large majority of law students, this type of change is dangerous.

I took Property as a 1L at Wake Forest last year. The Rule in Shelley's Case and the Rule Against Perpetuities were not only taught, they were both on the exam.

When my brother was a professor at Harvard his office was quite near the law school. One day he happened to be walkking behind a 1L and 2L who were discussing a proposed requirement for a course in legal ethics. The 1L said that he planned to get the requirement out of the way as quickly as possible. The 2L responded -- completely seriously -- withw ords to the effect: "Yeah, it's a good idea for an aspiring lawyer to get ethics out of the way quickly."

By the way, do the proposed requirement changes mean that graduates of Harvard Law will have to spend an additional year learning to pass the bar exam at a "real" law school.

The proper law school curriculum depends on your philosophy of the bar exam.

If you believe your students will all pass the bar even if they spend three years taking whatever they like, then there is no reason to require property. Only a few courses really build on property, and the practice specialties most related to property (wills/estates, zoning, real estate transactions) are not so common that every student should be exposed to them.

If you believe that law school should help you prepare for the bar exam, require all multistate courses (including not just property, but also criminal law/procedure and evidence).

I agree that public international law (I assume that's what is meant here) shouldn't be a required class in the first year. It's a fun class for second year, and I think it's a good part of a general legal education even though almost nobody ever uses it at work. Private international law is a lot more likely to come up at work, but most schools I know of make you take the other class first. I guess that makes sense -- learn about treaties in general before learning about the specific ones that affect different areas of business.

What I would mandate -- although not necessarily in the first year -- is a class in conflict of laws and choice of law. As far as I know, cases that cross borders (including state borders) but are governed by local law are far more common than cases that are governed by international law.

Having been in Georgetown's alternative first year section, the Rule against Perpetuities was not taught. Or, I don't remember it being taught - who really knows which?

Of course, within a few years of practicing, I'd needed to learn it to be able to argue (unsecssfully) against the exercise of an all together to old right of first refusal. Learning the language for the bar (and the ability to write easy to understanding, but impossible to win, policy arguments) was enough to be able to get the nuts and bolts from a source like Powell when it was necessary.

It was the policy argument that allowed the judge to even consider the RaP argument - the rule itself just gave us the opening.

Harvard et al might also want to rethink continuing education for profs and instructors. Perhaps a term limit before the prof spends time outside the academy (or make sure the prof spends x% of his or her time on matters disposed of by non-prof lawyers)?

Make it clear that just doing well in law school, then clerking 1-2 years, then "profing" for 30-50 years makes sense only if there are on-going professional sabbaticals or professional ventures outside the library and classrooms.

Taking a course in legislation and regulations makes a lot more sense if the prof has actually served as a lawyer in the SEC (think Chris Cox), or in support of Congress (or as an elected official in Congress), in addition to clerking for some prominent judges.

Likewise, learning private international law from those who have actually done project finance in the international arena, for example in Qatar for ExxonMobil at least for a year or two, would likely improve the upperclass law school experience as it relates to international matters.

US Americans in law tend to be nationalistic and parochial, probably to their detriment, handicapped more and more as globalization accelerates.

EV has the right idea in associating at least part time with Mayer Brown.

Law schools ARE trade schools, and they tend to be run by people who would take a huge ego hit if they admitted to themselves that they were training lawyers rather than taking their students on some stimulating academic journey. (And I say this as someone who WAS intellectually stimulated by his law school curriculum.)

Hence, the seeming lack of concern about whether students take 1L classes that will help them pass the bar exam. Leave that to the bar reivew courses, who can charge $2,000 bucks and cut the law schools back in on the profits through on-campus promotional campaigns.

It's quite inefficient, actually, but the only way it will ever change is if the ABA or the states start requiring law schools to teach the law.

cfw wrote:

<i>Americans in law tend to be nationalistic and parochial, probably to their detriment, handicapped more and more as globalization accelerates.</i>

As somone who's worked for international law firms in two overseas posts, I'd like to challenge this statement and ask the original poster his basis for making it. In fact, I'd say quite the reserve is true, that far from being "parochial," U.S. law tends to creep into many international transactions these days, even those not involving the U.S.

In the field of corporate finance, for example, non-U.S. issuers need to put on Regulation S legends into their documentation even if they're listing and selling securities wholly outside the U.S. And you don't need a course in public international law to do this.

I'd also suggest that cfw look at the law firm rankings in the deal tables to see whether U.S. firms are really having such trouble dealing with globalization.

Cinci fan~
As a current 2L I actually appreciated Crim Law. I'm not sure how other professors teach it but mine taught the common law crimes (that part is worthless except for the fact that it's on the Bar) and the Model Penal Code. Studying the MPC really helped introduce us to the idea of statutory analysis.

Everyone else~
Be glad you don't go to my law school. In addition to all of the first year courses (contracts [2 semesters], property [two semesters], civ pro [2 semesters], torts [2 semesters], writing and research [2 semesters] and crim law [1 semester]) we are REQUIRED to take Wills &Trusts, Evidence, Business Associations (formerly known as Corporations), Appellate Advocacy and Solving Legal Problems (essentially a class on how to pass the performance part of the CA bar). My school has the most required courses of any ABA school in the country. I guess that's what I get for going to a lower ranked school.

There may be lots of reasons to squawk about property as a required course, but a lack of connection to upper level courses is not one of them.

I teach the Rule Against Perpetuities because you cannot understand the statutes that commonly replace it without knowing the underlying rule. (Try applying the USRAP, wait and see, or a cy pres rule to perpetuities without knowing what one is and when it would have caused trouble.)

On the other hand, I skip the Rule in Shelley's Case because one can understand the law in that area without it. Unlike the RAP, it left no traces in the remaining law that become indecipherable without knowing the old rule.

And international law as a first year course? Frankly that strikes me as a joke. I could name twenty courses that are more deserving.

Speaking an international regulatory lawyer, I don't think that either international or regulatory law are the type of foundational classes that should be required in the first year curriculum. Particulary since the international law class is certain to focus on human rights and other public law issues that law professors find fascinating (and which very few practioners ever encounter) and ignore private international legal issues that might actually prove useful to know after graduation.

"I confess I tend to be pretty skeptical about proposed changes like this. In my view, the traditional first-year curriculum works because its courses lay the foundation for later study; public law and statutory courses generally build on common law origins, so I think it usually works to put the common law courses first."

For time immemorial, people indoctrinated under one system exhibit a stubborn resistance to changin the status quo -- even if the changes turn out to be for the better. Whether it is law school curriculum, enforcement of Title II of the Americans With Disabilities Act, or abolishing the outdated standardized bar examination format in favor of a more accurate competency assessment alternative assessment method, it is all the same story.

The problem I have experience firsthand, personally, and I speak as a victim repeatedly of this, is when 1L law students (who become the Bar and eventually the Bench) are indoctrinated in the common law subjects first, and only later in upper level courses in constitutional law and federal statutory/regulatory/international treaty law, this method tends to produce people who do not understand that federal law can preempt state common law (or even other state laws).

To give an analogy, one only needs to study the sequential analysis used to evaluate social security disability claims -- one does not move on to step 2 in the analysis until step one is addressed. And so on. In this curriculu context, if there is a constitutional provision that applies, that would be the first step in the heirarchy; second step, is there a federal statute/ratified (self-executing or implemented) treaty (equivalent of a federal statute)/federal regulation that applies; only after reaching the first step, then second step in the heirarchial analysis, does one get to State law (State constitution, state statute/state regulation/ and whatever state common law remains.

Our law schools have been cranking out graduates and bar examiners licensing attorneys, many of who cannot grasp the concept of fedral preemption -- a major flaw in assessing competency. I have even very recently been in a Florida State Circuit Court where I heard the judge state "The Americans With Disabilities Act does not apply to State courts, because we only consider state law here, not federal laws." I also repeatedly experience what I can only describe as a resurrection of the interposition doctrine in the context of the ADA in Florida and California State courts. e.g., How is it the California State courts pledge allegiance to compliance with the ADA's Title II reasonable accommodations, modifications, removal of barriers mandats, but the California State Bar court does not feel it likewise must comply? How does this happen? I posit, due to the past 100 years methodology of law school education; Harvard indeed has made a much needed for-the-better change. Kudos to Harvard!

"kfm — I find it difficult to believe that there are that many practicing lawyers who don't know the basics of evidence, since it is a bar examine course.

Jason, being able to pass the bar exam doesn't demonstrate competence, at least in my opinion. Law schools need to accept that they are trade schools, whether they like it or not. They need to produce lawyers who can function in the real world upon graduation, not spout out all kinds of rediculous policy babble."

Thank you kfm, exactly as I said. I rest my case.

I agree with Mary Katherine etc.

The problem with teaching students common law first is that they actually think that common law and cases are the primary sources of legal authority, when in reality statutes/regs/treaties etc. control. It is very sad, but then, law professors find talking about the common law more "interesting" than parsing statutes, so I'm not hopeful that things will change much in the near future. Harvard's program is a step in teh right direction, though at least half of the 1L curriculum should be devoted to statutory analysis.

Common law topics are, or at least should be, taught in part to provide a historical background to current law -- to observe law develop from cases and to teach that much actual law was and is very different from the evening TV news and high school civics hyperpositivism of "Congress passes a law and the President signs it and you obey it or go to jail."

In that sense, property law is the most important common law topic, because it was once the dominant common law topic. Most other common law topics, including procedure, were peripheral to property law and often largely based on it. Much has been forgotten about our legal history because many modern legal scholars reading old cases and statutes don't know, and don't realize they need to know, the necessary property law, because the modern version of the law of the case (e.g. civil procedure) does not involve much property law. Its old English counterpart certainly did.

I'd be satisfied by changing the property law requirement to a general common law history requirement, with half of the course on the history of property law and its interactions with early procedural, contract, and other common law areas.