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Harvard Law Faculty Votes to Revamp 1L Curriculum:
Given the historical influence of Harvard's curriculum on law school curricula nationwide, this news is particularly interesting:
The Harvard Law faculty unanimously approved sweeping revisions to the school's first-year curriculum in a closed-door meeting yesterday afternoon, professors confirmed last night. The vote marked the culmination of two years of work by Dean Elena Kagan and the review's chief architect, Smith Professor of Law Martha L. Minow, as well as several other professors and administrators.

Law School officials—including Kagan and Minow—did not respond to requests for comment last evening. But Petrie Professor of Law Einer R. Elhauge '82 said the century-old first-year curriculum covering traditional common law topics—contracts, torts, property, civil procedure, and criminal law—will be constricted, and courses on policy ("Legislation and Regulation") and international law ("International Law and Problems and Theories") will be added.
  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. Of course, it may be that we think that other courses are now ultimately more important. But if that's true, I tend to think that means such courses should be upper-level requirements rather than required first-year courses.

  This doesn't mean the first-year curriculum is untouchable, of course, and without knowing the details of Harvard's plan it's hard to say anything specific. I've occasionally wondered whether property law still needs to be a required first-year course: it seems to me that relatively few advanced law school courses build on property law. I'm also not sure that Harvard's treatment of criminal law and criminal procedure as a single combined 1L course is the best approach; the two courses are pretty distinct, and in my experience learning constitutional criminal procedure as a 1L is somewhat confusing. In any event, it will be interesting to see the details of Harvard's plan, and very interesting to see if other schools follow suit.

  Thanks to How Appealing for the link.
Pete Freans (mail):
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).
10.6.2006 12:39pm
margate (mail):
Orin:

I'm an '85 grad of SUNY-Buffalo law school.

First semester first year we had: Contracts, Con Law, Crim Law, Civ Pro, and Legal Writing.

Second semester first year we had: Torts, Property, Legislation, International Law, Legal Writing.

I got quite a chuckle from your post because I don't think the faculty at Buffalo (whom I thoroughly enjoyed) realized how far ahead of the curve they were at the time in legal education.

But speaking from experience, your commentary is spot on!
10.6.2006 12:40pm
margate (mail):
Orin:

P.S. - when do expect to return to OrinKerr.Com?
10.6.2006 12:43pm
Daniel Chapman (mail):
Well I'd keep my mouth shut since it's really none of my buisness, but just so you don't get the wrong idea from reading all the comments encouraging you to leave again...

I am glad you're back posting here. There's a limit to how many blogs a person can read regularly, and I don't want to choose.
10.6.2006 12:49pm
Jeremy T:
To respectfully disagree with Pete Freans, I think a required course on international law in the first year is a stupendous waste of time.
10.6.2006 12:49pm
wm13:
My view is, law school is trade school, and a knowledge of property law will be more useful to most practicing lawyers (even HLS graduates) than a knowledge of international law. Of course, the alternative view is that law school either (i) teaches the student to "think like a lawyer" or, (ii) at least, produces a useful assortative ranking of young people based on their ability to think like a lawyer, and for either of these purposes, international law is just as useful as property law.
10.6.2006 12:58pm
cfw (mail):
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.
10.6.2006 1:07pm
JB:
IANAL, but: The difference between international law and domestic law is that the latter has police power behind it sufficient to override the sovereignty of anyone it can affect. The former, on the other hand, is inextricably bound up with power politics and has no real consensus on many of its basic principles.

If that is true, why should law schools drop something definite, practical, and understood for something vague and unenforceable, especially in the first year, when what is studied should be central and expandable to future topics?

I realize I'm implicity favoring WM13's view of law school here.
10.6.2006 1:10pm
Anderson (mail) (www):
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?
10.6.2006 1:11pm
RBS (mail):
Evidence isn't a required course at most schools - maybe even all schools. Property isn't required at Yale. A disturbing number of schools don't require Con Law. The law schools I know require either Crim Pro or Crim Law, but not both. Whatever form it takes, as a 3L at a national law school, I agree that the basic, time-honored first year curriculum is a crucial foundation for addressing legal questions.
10.6.2006 1:18pm
Kate1999 (mail):
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!
10.6.2006 1:18pm
notalawyer:
I'm just concerned that the required 1st year int'l law is a sign of further momentum toward ignoring the US constitution in favor of international norms &institutions.
10.6.2006 1:23pm
Pantapon Rose (mail):
Evidence was a required course at my law school.
10.6.2006 1:24pm
Houston Lawyer:
They made us take "ethics" our first semester of law school instead of criminal law. It was a complete waste of time, since no one had any clue about the actual practice of law. I did have the benefit of not taking a criminal law class so that I can legitimately claim ignorance whenever anyone asks for free advice in that area.

I would add international law to the list of worthless classes for first years. The vast majority of practicing lawyers have no need to know international law.

If you want to make them suffer, make them take a tax class.
10.6.2006 1:30pm
CJColucci:
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.
10.6.2006 1:32pm
j..:
International law would have been helpful - but an international focus in civ pro would have been more so.

Georgetown has had an alternative for more than a decade, but with a different idea in mind.
10.6.2006 1:32pm
Oris (mail) (www):
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.
10.6.2006 1:34pm
anonVCfan:
I blame Justice Kennedy
10.6.2006 1:43pm
Ben Barros (mail):
"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.
10.6.2006 1:43pm
Ben Barros (mail):
As a further point, maybe fewer contributors to the VC would have seen Kelo as a surprise if they had a basic knowledge of material that is covered in most first-year property courses.
10.6.2006 1:45pm
tbaugh (mail):
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.
10.6.2006 1:56pm
OrinKerr:
As a further point, maybe fewer contributors to the VC would have seen Kelo as a surprise if they had a basic knowledge of material that is covered in most first-year property courses.

Law professor cat fight!
10.6.2006 1:59pm
Broncos:
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.
10.6.2006 2:04pm
OrinKerr:
Ben,

Seriously, though, I'd be interested in hearing more about how property law is essential to often-taken upper level courses. Torts struck me as primilary an introduction to key concepts as negligence and strict liability. I agree that criminal law is only really important for the family of upper level crim courses -- crim pro, adjudicatory crim pro, white collar crime, death penalty, habeas, etc. -- which is why I see it as more of a basic skills class. But property law didn't seem to fit in as much with upper level classes that a lot of students take. Is that wrong?
10.6.2006 2:06pm
SP:
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.
10.6.2006 2:09pm
Antares79:

I've occasionally wondered whether property law still needs to be a required first-year course: it seems to me that relatively few advanced law school courses build on property law.


Unfortnately, the national bar examiners still think Property is the cat's meow. To the degree that law schools are supposed to prepare students for the bar, they should teach Property. Also - several bars require knowledge of courses that build on Property such as Trusts, Wills, Estates, and Community Property (for those out West).

Secondly, Property lays important groundwork (no pun) for intellectual property classes. For instance, Copyright's per sterpes descendancy and assignment/conveyancing of Patents are right out of the Property playbook. These usually fall under the "advanced courses" category.
10.6.2006 2:25pm
mikebusl07 (mail):
<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.
10.6.2006 2:47pm
Mike BUSL07 (mail) (www):
<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.
10.6.2006 2:47pm
Ben4343434:
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.
10.6.2006 2:53pm
Ben4343434:
Whoops - didn't read Antares' posts. So I didn't mean to be redundant with my mention of Wills &Trusts.
10.6.2006 2:58pm
Anderson (mail) (www):
Evidence isn't a required course at most schools

All those law grads, still wondering what that "Objection, Your Honor" stuff was all about ...
10.6.2006 3:20pm
Ben Barros (mail):
Orin, I hope the intended humor in my second comment came through. Anyway, as some comments have suggested, property is a basic foundation for real estate transactions, IP, and wills &trusts. It's just as important, in a more subtle way, for commercial classes like secured transactions and bankruptcy. Like most first-year classes, the intro property course does two main things: gives a basic background in doctrine and introduces some key legal concepts. Both come up in a lot of advanced classes. For example, in bankruptcy, it is important to understand tenancy by the entirety. On a more abstract level, the idea of possession comes up in bankruptcy, and thinking about what exactly "possession" means is a big part of intro property. For a property professor, I'm actually pretty open to reducing the coverage of first-year property in some ways, for example by leaving land use issues to an upper-level elective. But I do think that it is important to have a first-year class that introduces students to basic property concepts.
10.6.2006 3:33pm
percuriam:
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.
10.6.2006 3:39pm
Avery Katz (mail):
Without taking a position on curricular reform [my personal view is that the upper-year curriculum is in far greater need of reform than the first year], courses in our curriculum that build importantly on property concepts include:

Corporations/Business Organizations
Corporate Finance
Taxation
Family Law
Secured Transactions
Commercial Paper/Payments
Regulated Industries
Environmental Law
Trusts and Estates
Copyright/Patent/Trademark
Cyberlaw
Remedies
Local Government Law
Legal History

More than build on criminal law, certainly, and arguably more than build on torts.
10.6.2006 3:39pm
JRL:
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).
10.6.2006 3:42pm
Jason Fliegel (mail):
I want to know how many property law professors still teach the Rule Against Perpetuities and the Rule in Shelley's Case (mine did, and I went to law school a mere decade ago).
10.6.2006 3:43pm
kfm:
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.
10.6.2006 3:49pm
Jason Fliegel (mail):
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.

I'll also point out that there are a great many lawyers who will have long and storied careers that will never once require them to use either the laws of evidence or the laws of procedure -- anyone who deals with corporate transactions, for example, or securitization, or ERISA, or trusts and estate planning, or tax planning, and so on.

On the other hand, I would hope that appellate judges are thorouhgly familiar with the applicable rules of evidence and procedure in whatever jurisdiction they may sit.
10.6.2006 3:53pm
Wake Forest 2L:
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.
10.6.2006 4:00pm
The General:
isn't law school supposed to teach us how to think? What does adding international law to the core curriculum add to that basic premise? Where to look? it seems that could be taught in a day at the law library or in Lexis training.

Here, there are a probably a bunch of international law professors who pushed the idea so that they could teach 1Ls before the students become all jaded by the crap that goes on in law school and as such are easier to influence to accept "international perspectives" i.e., liberal/anti-US gobbledygook, as if it is better and more enlightened than any other "perspective," whatever the hell that means.
10.6.2006 4:06pm
AppSocRes (mail):
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.
10.6.2006 4:17pm
DG:
A more detailed account of the changes is here: http://www.law.harvard.edu/news/2006/10/06_curriculum.php.

Note that that none of the currently required courses will be dropped.
10.6.2006 4:30pm
Michael Lewyn (mail) (www):
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).
10.6.2006 4:42pm
Austin:
I'd suggest that, in the interest of accuracy, International Law be renamed Law and "International Law".
10.6.2006 4:48pm
A.C.:
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.
10.6.2006 4:48pm
Jeff Stake (mail) (www):
I'd like to second Avery Katz's comments and make two additional points.

First, there is a lot of property law being practiced by lawyers, even today. Because of the absolutely huge numbers of transactions, lack of awareness by lawyers will result in many errors that are very costly to both clients and the dispute resolution system. A simple but very costly error [malpractice] by a lawyer just came across my desk yesterday. There are a lot of trap doors in property law, and people need to know they are there or their clients will fall through them. It would be better for all if, by teaching property, we keep it a matter of planning and not a matter of much costlier clean up litigation.

Second, there are many useful concepts that could be taught in a number of courses, but seem to fit nicely into the property course. For examples, subjective v objective value, the Coase theorem and transaction costs, rentseeking, standards vs rules, externalities, WTP-WTA disparities, priority, public recording, public v private allocation of resources [eminent domain], public goods, statutes of limitations [adverse possession], declining marginal utility, efficient division and collection of rights, the function of formalities, discounting to present value, intergenerational equity, magnitude v frequency of errors in applying default rules, holdouts, bilateral monopoly, and other strategic bargaining. All of these concepts are useful in at least some upper level courses, and are easy to present in a concrete way in Property.

In response to one of the questions above, I teach and test both the Rule against Perpetuities and the Rule in Shelley's case. Indeed, in my experience, the RaP needs to be taught twice just for students to get it once.
10.6.2006 5:29pm
j..:
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.
10.6.2006 6:25pm
Jacob T. Levy (mail) (www):
I want to know how many property law professors still teach the Rule Against Perpetuities and the Rule in Shelley's Case

I can attest that both were still taught in 1L property at the University of Chicago as of 2004-05.
10.6.2006 6:28pm
cfw (mail):
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.
10.6.2006 6:35pm
BobH (mail):
Civil procedure is a COMMON-law course?!?
10.6.2006 6:49pm
Dilan Esper (mail) (www):
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.
10.6.2006 8:30pm
Mark Field (mail):

In response to one of the questions above, I teach and test both the Rule against Perpetuities and the Rule in Shelley's case. Indeed, in my experience, the RaP needs to be taught twice just for students to get it once.


I actually won a case on RaP grounds. Count me as one who thinks property should be taught first year.
10.6.2006 8:36pm
The River Temoc (mail):
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.
10.6.2006 8:39pm
Cinci fan:
As a current 2L, I find the standard 1L curriculum pretty ridiculous. It is a collection of introductory classes in subjects I will never again deal with, and the only reason it exists in its current state is because "that's how its always been taught." Meanwhile, we are not free to explore what areas of the law interest us until 2L year. Before 2L year even begins and we can try to narrow our interests, we have to select what firm we wish to work for next summer. Should we choose a firm strong in Corporate? Tax? Real Estate? How should we know, we've never had any of those classes.

I consider the worst example to be Criminal Law, which I was forced to take 1L year. I know I am not going to be a criminal defense attorney. Why should I waste that valuable time during my 1L year taking Criminal Law? (I do belive Criminal Law should be a required class. Just not required the first year).

Fortunately, NYU actually gives us a little choice. We have to take Contracts, Torts, Civ Pro, Criminal Law, and the "Administrative and Regulatory State" (agencies and statutory interpretation). We then have a choice of one of the following:

1. Property.
2. Corporations.
3. Income Tax.
4. International Law.
5. Constitutional Law.

If you do not chose Property, you then have to take Property during the fall of your 2L year. (Most NYU courses are only a semester long).
I myself took Corporations, loved it, and was glad to actually take some law that related to the world outside a courtroom. I'm currently in Property right now, learning how best to hunt Fox (Pierson v. Post). The delay has not harmed me.

I just wish we could use an elective system in place of Criminal Law as well. (Ultimately, Criminal Law will effect my job, but Corporate Law will probably effect it much more).
10.6.2006 9:58pm
Realist Liberal (mail):
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.
10.7.2006 12:21am
Lev:
Dunno. I tend to think that the first year should consist of three periods. A first introductory period of, say, a month to six weeks, followed by two "semesters" of equal length.

The first introductory period should be a bar review course. After that, the standard courses will actually make some sense to the students as they are taking them, and all will benefit more from them. Of course, it might make things harder on the perfessors.

I am amazed that there are law schools that do not require evidence. If there is anything that underlies everything a lawyer does, that's it.

I don't see the point of property too much. Of course, when I had it was more of a historical common law review, rather than anything particularly related to modern property law with its statutory requirements. The bar review courses did as well or better than the ls property course. One does not need to know very much at all of "property law" to practice "intellectual property law."

One of the most interesting courses I had was Comparative Law - civil law vs. common law. Probably the most useful and important thing I took away from ls was the advice of my comparative law professor as the thing to remember from his course if all else were forgotten: beware of language differences, beware of translations. There are things that can be said in one language that cannot be said in another. There are things said in one language that sound similar to things said in a different language, but are not. People who speak your language are probably still thinking in theirs. Boy, is all that true in spades.
10.7.2006 3:03am
stealthlawprof (mail) (www):
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.
10.7.2006 3:30am
Lev:
stealthlawprof

Yeah, you're right. I, for one, had to use the Rule Against Perpetuities all the time, every day, and twice on Sunday.

The perpetual rule, is that in actual practice one must, like, you know, do research, not rely on law school law. Imagine what happened, for example, when I asked, is a pipeline actually real property, and looked it up.
10.7.2006 3:47am
Ming the Merciless Siamese Cat (mail):
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.
10.7.2006 10:44am
kfm:
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.
10.7.2006 2:01pm
Mary Katherine Day-Petrano (mail):
"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.
10.7.2006 3:13pm
Lev:
Mary Katherine Day-Petrano

Hmmm... according to, what was it, men in black, people with three names are serial killers and assassins. I wonder what four means.

Anyway

Yeah, but spouting out all kinds of ridiculous policy babble is so much more interesting and easy that being able to function in the real world...until you have to function in the real world.


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).


I never got that either. Harvard started this format a century ago, when it actually made sense because it was the state of the law. Now, the entire approach has changed quite significantly, with significant areas of previous common law, if not preempted, codified and superseded at the state level - Uniform Codes, Model Laws, UCC etc., plus federal preemption.
10.8.2006 2:46am
andy (mail):
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.
10.9.2006 4:57am
Current 1L (mail):
Well, I don't know if Harvard is moving in the right direction or not, but one thing is certain - the overall philosphy that law school should be designed to "guide" its students through the muddy waters of antiquated case law in order for the students to "think like lawyers" and apply said antiquated law to new hypotheticals does not a good lawyer make. Let's face it, it doesn't take a genius to pass the bar, so we should stop pretending that it does. My torts professor remarked with disgust on the first day of class that if we think that "professors' jobs were to 'teach' [you] the law, law school would be just another DeVry, cranking out lawyers in a matter of months!" My question - what the heck is so wrong with that? Law schools should be focused on "teaching" a basic foundation of black letter law along with current black letter law in order to help students pass the bar exam (that is the actual end goal, right?). I've never met a single attorney who believed that someone fresh out of school should be expected to know the many facets of law pertaining to their particular area of practice. Most "lawyering" is learned on the job, which aside from legal writing and research, makes me wonder what the heck good it does to spend three years at $23K per year if most of this fine education will be promptly replaced with a completely different education gained only through practical experience. Simply put, law school IS a trade school and nothing more - it would just be nice if the ABA finally admitted it! Oh, and for what it's worth, Evidence, Criminal Procedure, Criminal Law, Property, and Con. Law are ALL required courses at my school. Heck, Property and Con. Law even get two semesters each! At least our 4 semesters of legal writing are practical!
10.9.2006 12:34pm
nick (www):
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.
10.10.2006 1:36am
nick (www):
Current 1L: if you want a practice a mere trade, become a paralegal. It's not too late for you to drop out of law school and sign up for paralegal classes, and you'll save a lot of money in the process. Lawyers are supposed to know how to research and reason about the law. Both for statutory and purely precedent-based areas of law this requires extensive experience with common law techniques that you will learn neither from a "black letter" course nor from your law firm supervisor, who is too busy and rightfully expects you to already grasp these hard-to-teach basics.

On "international law": All law students should get a week or two of "international law" in order to teach the valuable lesson that, just because some grand authority writes down some grand commands, and just because a bunch of other grand people call those commands "law", doesn't mean said "law" is actually going to be followed or actually make much of any other kind of difference. This wisdom from "international law" puts a damper on the more superstitious forms of legal positivism.
10.10.2006 1:59am