Professional Documents
Culture Documents
Legal Education
Legal Education
Martha Minow
April 5, 2010
“Plato tells us that, of all kind of knowledge, the knowledge of good laws may do most
for the learner. A deep study of the science of law, he adds, may do more than all other
writing to give soundness to our judgment and stability to the state.” So explained Roscoe
Pound in 1923, though I confess, I found this work reprinted in a 1999 2-volume
collection on The History of Legal Education in the United States: Commentaries and
Primary Sources.1 As I explore the past, present, and future of legal education— I will
consider what legal knowledge enables and shifting views about what a deep study of law
entails. But I can’t help reporting something I learned while researching that 2 volume
I decided to explore the feature on Amazon—“customers who bought this item also
program—and I found that people who bought Steve Sheppard’s 2 volumes of The
History of Legal Education in the United States: Commentaries and Primary Sources
also bought:
1
Roscoe Pound, the Work of the American Law School (1923), reprinted in Steve
Shepperd, II The History of Legal Education in the United States 678 (1999). Pound
continued, “If we are to do our duty by the common law in the 20th century, we must
make it a living system of doing justice for the society of today and tomorrow, as the
framers of our polity made of the traditional materials of their generation an instrument of
justice for that time and ours.” Id., at 687.
1
Amartya Sen’s The Idea of Justice—so far so good
Laura Kalman’s Yale Law School and the Sixties: Revolt and Reverberations (Studies in
Education Hell
And then, not a book at all—but an air mattress—I guess that’s what legal education’s
But actually, this is not a moment to snooze. This is an incredibly exciting time in legal
countries are creating new law schools; some following a US model, which itself is much
influenced by Harvard; others, like Jindall in India, the Peking School of Transnational
Law in China, new law schools in Italy and Brazil, and a revamped program at McGill in
2
Of course, some of the themes and issues for legal education have persisted for more than
a century. William Twining wrote in 1994, in “all Western societies law school are
typically caught in a tug of war between three aspirations: to be accepted as full members
critics and censors of law in society; and to be the service-institutions for a profession
which is itself caught between noble ideals, lucrative service of powerful interests and
I find such tensions healthy. They manifest the unique position of law schools as a
bridge between theory and practice, between law and justice, between ideals and needs.
We want purely academic inquiry, engaged critique of law operating in society, and
assistance to a profession that is itself caught between doing well and doing good, serving
the haves and the have-nots. These points of emphasis have undergone three phases, as I
will explore, and we are on the brink of a fourth. Now more than ever, law schools have
a chance to do something historic and influential, both in how we equip students and how
Like law itself, law schools have the capacity to retain traditions and to enable change, to
protect expectations and to inspire reform. I will sketch three past periods of legal
2
William Twining, Blackstone’s Tower: The English Law School (1994).
3
education—with different permutations of these tensions—producing the context for this
Before the industrial revolution—indeed from medieval times until the mid 19th century,
lawyers learned their skills largely through apprenticeship and reading in informal
settings.
In the late 13th century in England special education began for those appearing before
common bench judges to recruit ‘apt and eager’ students from each county to learn the
business of the courts by attending cases, participating in moot courts, and joining with
judges and lawyers to meet together in what became the Inns of Court. In Colonial
America and the early Republic, a more informal process of apprenticeships or clerking
emerged. John Jay and John Adams, for example, clerked with mentors. They and others
in the small elite group of individuals learned in the law played a disproportionate huge
civic role in this emerging democracy. Almost half the signers of the Declaration of
Independence were lawyers as were more than half of the members of the Constitutional
convention.4 Lawyers emerged as civic leaders even though the profession was
unpopular, associated as it was with debt collection, with England, and other instances of
3
Ralph Michael Stein, The Path of Legal Education from Edward I to Langdell: A
History of Insular Reaction, 57 Chicago-Kent L. Rev. 429 (1981).
4
Id., at 440 (citing Laurence Friedman).
4
seeming on the wrong side. The American Revolution propelled a nationalist dimension
Meanwhile, the alternative route of university-based legal education began with a failed
proposal in the Connecticut Legislature. In what I promise will not be the last time
Harvard figures prominently in the story, Isaac Royall—a wealthy slaveholder here in
or law. The university chose law as it already had something in medicine. That launched
university-based legal education in this country (though it took a few years for the
endowment to grow big enough—-an issue with which deans become intensely familiar).
In its early days, Harvard’s law program sought both to serve the nation and to prepare
students to serve private clients.5 When Joseph Story, Justice of the United States
Supreme Court, became a professor in 1829, he used moot courts and texts with
discussions as well as lectures. He explicitly organized the school around public duties
and service.6 The efforts to achieve a balance between public service and private
5
See Paul D. Carrington, Law as “The Common Thoughts of Men:” The Law-Teaching
and Judging of Thomas McIntyre Colley, 49 Stan L. Rev. 495, 500 (1997) (quoting
Arthur E. Sutherland, the Law at Harvard (1967)). Sutherland actually wrote, “The
School has always thought of itself as serving the nation as well as training individuals
for a private calling, but conscious concentration on the first of these missions has much
increased, and rightly so, during the last third of the School’s existence.) Sutherland, at
358.
6
Paul Carrington, Law as “the Common Thoughts of Men:” The Law-Teaching and
Judging of Thomas McIntyre Colley, 49 Stan L. Rev. 495, 498, 500-501 (1997).
5
2) 1871-1935
In 1871, a published but unsigned note –probably written by Oliver Wendell Holmes, Jr.
-- described the condition of the Harvard Law School as “almost a disgrace to the
curricular change that transformed not only Harvard but legal education. He changed the
exams, ending casual attendance.8 Under Langdell’s leadership, Harvard also expected
students to have completed an undergraduate program before law school enrollment. The
school employed full-time law teachers rather than practitioners lecturing part-time.
Langdell rejected the financial model premised on low-academic standards and low
tuition. This seemed to ignore concerns of the market—but the ultimate results
demonstrated that a professional school elevating academic merit could not only survive,
but thrive.9 Other than criminal law and constitutional law, the program focused on
private law, including bills of exchange, quasi contracts, equity, advanced property, sales,
trusts, and partnership. The curriculum treated common law as generic rather than tied to
specific jurisdictions. Taken together, the changes transformed Harvard Law School
7
William C. Chase, The American Law School and the Rise of Administrative
Government 25-26 (1982).
8
Bob Gordon, The Geologic Strata of the Law School Curriculum, 60 Vanderbilt L. Rev.
339 (2007).
9
Bruce A. Kimball, The Inception of Modern Professional Education: C.C. Langdell,
1826-1906 345 (2009).
6
from a regional to a national institution,10 prefiguring a pressing issue today—should law
schools shift from national to global missions, focused not on the law of any one nation?
The most significant change that remains associated with Langdell’s name is the case
students about the arguments within written judicial opinions and rather than demanding
that students memorize rules divorced from the context of their evolution.11 Students
and scholars would operate as empirical investigators, using the raw data of in appellate
opinions to identify principles at work.12 Exams did not ask for statements of rules but
instead for applications of principles to hypothetical cases.13 The method initially was
Holmes compared Langdell’s claims to that of a biology teacher who “would give one of
his pupils a sea urchin and tell him to find all about it he could.”14 In contrast, in the
opening sentences in his famous 1881 lectures, The Common Law, Holmes emphasized
10
Paul D. Carrington, Law as “the Common Thoughts of Men:” The Law-Teaching and
Judging of Thomas McIntyre Colley, 49 Stan L. Rev. 495, 498 (1997).
11
Christopher Columbus Langdell, Selection of Cases on the Law of Contracts 10-11
(1871, reprinted 1914).
12
M.H. Hoeflich, Law and Geometry: Legal Science from Leibniz to Langdell (1986),
reprinted in Steve Shepperd, ed. II The History of Legal Education in the United States
589. 602 (1999).
13
Bruce A. Kimball, The Inception of Modern Professional Education: C.C. Langdell,
1826-1906155-165 (2009).
14
Paul D. Carrington, Law as “The Common Thoughts of Men:” The Law-Teaching and
Judging of Thomas McIntyre Colley, 49 Stan. L. Rev. 495, 519 (quoting Liva Baker, the
Justice From Beacon Hill, 208-9 (1991)).
7
the creative role and responsibility of judges who ensure that the life of law is not logic
but experience.15
Yet, by 1886, after briefly joining the HLS faculty and then accepting a post on the
(though not Langdell himself). The method stimulated discussion and debate. The buzz
around the courses attracted more students. Although initially rejecting student
preferences in favor of academic merit, Langdell’s method secured good jobs for
graduates, attracted more talented students, and then cultivated strong student support.16
Langdell served as dean for 25 years, spreading the case method, raising money for the
school, and advancing a conception of law as pure and divorced from politics.17
Although most of his contemporaries disagreed with this conception, his idea seemed to
capture the spirit of the times, embracing technical competence and making the legal
Langdell’s case method endured but sprang free from his ideas of law as science. No
longer were opinions viewed as natural objects waiting to be systematized.19 The case
method persisted because it sharpened students’ analytic thinking and readiness for
15
See Martin P. Golding, Holmes’s Jurisprudence, 5 Soc,. Theory & Prac. 183, 201
(1979).
16
Kimball, supra, at 244, 264.
17
See Paul D. Carrington, William Gardiner Hammond and the Lieber Revival, 16
Cardozo L. Rev. 2135, 2149 (1994-5).
18
Id., at 2150.
19
Howard Schweber, Before Langdell: The Roots of American Legal Science 1998,
reprinted in Shepperd, supra, at 606, 631.
8
practice. 20 By 1895 when Langdell retired as dean, HLS was in much demand by
James Bar Ames, the first person hired to teach law who had never practiced it,
explained, “The teacher…secures from the student a decided opinion upon the problem”
after statement of the case. “Whatever it is, the instructor should be prepared to break him
down…force a reversal of his opinion, and then start in on him again and break him
down a second time, so that he is forced to admit that his first opinion is right.”
Classroom examination and cross examination conveyed “the power of legal reasoning,”
Successful Boston attorney and Harvard Law graduate, John Chipman Gray, used the
case method as a Harvard Law School teacher to "provide the students with an
experience which would give them “the power of solving legal problems” with best
models, from prior cases. The case method developed mental muscles in relation to
detailed disputes24 in a complex modern world rather than pursuing mastery of a fixed
body of knowledge.25
20
Chase, supra, at 30-34.
21
Kimball, supra, at 264.
22
Id., at 171-2.
23
Chase, supra, at 35-36.
24
Gordon, supra, at 342.
25
Chase, supra, at 35.
9
Rival law schools emphasized moral philosophy or political economy; the University of
Chicago staked out social scientific study of law. But even there, the case method spread
and became dominant, supporting law as a professional specialty and autonomous field.26
The success of Harvard Law graduates in practice provided evidence of the success of the
method, even as the law schools pursued independence from and a critical stance toward
the bar, especially given exposes of serious judicial corruption. The case method endured
despite the abandonment of Langdell’s idea of legal science and despite competing
What, then, emerged as the relationship between technical professionalism and the
democratic and civic aspirations of American law? Some charge Langdell with being
women, giving rise to sharp critiques as decades went by. But the biggest challenges to
Langdell’s focus on a general common law came from the rise of legislation, regulation,
and administration, largely missing from the classic case method,28 and the scholarly
movement known as legal realism, critiquing the idea of “general law” separate from
26
Gordon, supra, at 346-9.
27
Paul D. Carrington, Law as “the Common Thoughts of Men:” The Law-Teaching and
Judging of Thomas McIntyre Colley, 49 Stan. L. Rev. 495, 519 (1997).
28
Chase, supra, at 14.
29
Felix Frankfurter, The Law and the Law Schools, 1 American Bar Association Journal
532 (1915), reprinted in Shepperd, at 673-677.
10
A year after joining the Harvard Law faculty where he had been a star student, Felix
practice. Law school should not just train people to earn a living as lawyers but also
develop the law to serve humanity. Frankfurter wrote: “We fail in our important office if
[practitioners] do not feel that society has breathed into law the breath of life and made it
a living, serving soul. We must show them the law as an instrument and not an end of
organized humanity. We make of them clever pleaders but not lawyers if they fail to
catch the glorious vision of the law, not as a harsh Procrustean bed into which all persons
and all societies must inexorably be fitted, but as a vital agency for human betterment.” 30
Roscoe Pound struck the same notes. In 1906, as dean of the University of Nebraska
Law School, Pound challenged the newly formed American Bar Association to deal with
the many ‘causes of popular dissatisfaction” with the law. Then as dean of Harvard
between 1916 and 1936, Pound pushed for reforms of laws, courts, and lawyers. Pound
stressed the need to adjust principles and doctrine to human conditions and to put
A strong form of this public mission of law schools emerged at the University of
Wisconsin where the whole university committed to deploy expert knowledge and
training to advance human welfare of the people—and law professors regularly worked to
30
Id.
31
Felix Frankfurter, The Law and the Law Schools, 1 American Bar Association Journal
532 (1915), reprinted in Shepperd, supra, at 673, 676 (quoting Roscoe Pound).
11
develop regulations and serve on boards and commissions.32 Legal education continued
through World War I and the Depression to cultivate reasoning and questioning, with
some focus on civic good, and the case method proved a durable method for engaging
student attention and educating a large number of students at relatively little expense.
3)1935-2003
In its third phase, law schools added policy analysis and courses relevant to the
administrative state. Law professors helped to invent and even staff the New Deal and
post-New Deal agencies. Law schools kept the common law core remained in the first
year curriculum and implicitly established the baseline of contractual and property rights;
upper-level courses introduced legislation and regulation. Electives mirrored the issues of
each succeeding decade; we added labor law in the 1940s and 50s; poverty law, civil
rights, and urban law, in the 1960s and 70s, and environmental law in the 1970s and
1980s, internet, entertainment law, and human rights law, meeting student interests and
My colleague Lani Guinier and her co-author Susan Sturm have argued that the use of
electives risk marginalizing topics and concerns without altering the fundamental focus
and messages of legal education.33 They argue that case method imprinted an adversarial
32
Paul D. Carrington and Erika King, Law and the Wisconsin Idea, 47 J. Legal Educ.
297, 324-6 (1997).
33
Susan Sturm and Lani Guinier, The Law School Matrix: Reforming Legal Education in
a Culture of Competition and Conformity, 60 Vand. L. Rev. 515, 542 (2007).
12
framework throughout legal education, stimulating competition and argumentation, rather
than problem-solving or collaboration. Some note that the profession itself was tending
ethical.34 The political interests of faculty and students stimulated debates over the
relative importance of private and public interests and the slow pace of integration for
women and racial minorities in law schools and the legal profession. The work of legal
scholars reflected these debates. At Harvard, Richard Stewart argued during the 1970s
The predominantly white and male character of legal education began to change. HLS
had rejected a woman applicant just as Langdell took charge in 1871 even though
Oberlin, Michigan, and other schools had pursued co-education –where in fact women
surpassed men in academic accomplishment.36 Langdell said in 1899 “the law is entirely
women in the 1950s, Harvard joined other law schools as women students headed to law
schools in increasing numbers during the 1970s and 1980s. Although a few African-
Americans and individuals from outside the United States had attended Harvard Law
School before this time, diversity on these and other dimensions notably increased. With
more people of color and women within law schools and the profession, schools reacted
34
See Patrick J. Schiltz, On Being a Happy, healthy, and Ethical member of an Unhappy,
Unhealthy, and Unethical Profession, 52 Vand. L. Rev. 271 (1999).
35
Chase, supra, at 149.
36
Kimball, supra, at 290-1.
37
Id., at 290 (quoting Langdell).
38
One historian attributes this attitude to the competitive style cultivated at the school—
in contrast to the qualities of gentleness, agreeableness and empathy associated with
images of women by Brahmin gentry. Id., at 294.
13
with more electives. But it did not alter the fundamental frame of the curriculum nor did
Ethical crises—from Watergate to Enron-- triggered new courses and requirements-- but
the law schools tend to emphasize individual ethical development and reflection
Luban and Mitt Regan at Georgetown, —enlarged inquiry into the history and incentives
of the legal profession within changing economic contexts, and made this a subject of
study for law students. While legal education has always immersed students in the task
recent decades, law schools have pushed students to articulate competing values and
practicing lawyers increasingly translate principle into the design and management of
individuals and for groups, locally, nationally, and internationally, law schools have
The past 70 years also represents a time when disciplines such as economics, decision
analysis, psychology, organizational behavior, and history have become intertwined with
legal scholarship and what it means to “think like a lawyer.” The place of other
14
disciplines in legal education may have grown, but there is no systematic conception of
The largest change in law schools during the past 30 years is the rise of clinical
education. Bridging theory and practice, making parts of legal education closer to a
teaching hospital, clinics also elevated attention to poverty, racial and gender
public service with only limited access to outside funding and it involves much higher
understand clinical education as a central part of our justice mission, as well as a teaching
tool. Initially focused on representing individuals in local courts and agencies, clinics
over time have branched out. Now they encompass federal and international litigation,
And the investment of resources, and the time of staff attorneys, faculty, and students in
clinics affirms and amplifies the justice mission of law schools. More than 2/3rds of our
first law schools to mandate pro bono service by law students. Our students routinely
exceed the requirement in number of hours served and both the requirement and the
student response underscore the service dimension of legal education while bridging
15
Nonetheless, the dominant tilt of legal education has preserved the case method, relying
on appellate decisions and adversarial arguments in class, and keeping litigation central,
even with the increasing presence of insights from economics, political science,
psychology and others fields. By the turn of the millennium, many law schools debated
how best to embrace alternative dispute resolution, the administrative state and policy-
interdisciplinary practice and research without losing all ties to the profession and
practice.
For decades and decades, legal education itself didn't seem broken. As largely tuition-
supported schools, with student loans repaid by salaries, and cross-subsidy, philanthropy,
and endowment returns supporting public service opportunities sand careers. Even before
the recent economic downtown, law schools seemed to be missing opportunities for
change, neglecting to pursue ways that schools themselves and lawyers as a profession
could help tackle large issues of poverty, defects in corporate governance, failures in
But legal education –except for clinical work--seemed like the traditional first two years
of medical school—lots of knowledge, little direct work in the field. Schools across the
country incorporated policy studies, social science and the administrative state, but as
add-ons, not altering the basic map of the legal world which still started with common
16
law, focused on courts, and obscured the multiple pathways through law school and into
We come to the present--and back to the future. And the future has already started. Once
more, with only slight embarrassment, we need to start with Harvard—because we were
the first to launch a major curricular reform. In 2003, Dean Elena Kagan announced a
curricular reform initiative for Harvard Law School, and she asked a colleague named –
I confess: I extracted two promises from then-Dean Kagan regarding our reform process,
because I had heard and in fact witnessed how legal education is littered with the
faculty—because that would simply play to a law faculty’s gifts for turning any written
text into target practice in an adversarial framework. Second promise: Dean Kagan
would make curricular reform one of her top priorities, come to every meeting, and
39
Then Dean of Vanderbilt law School, Ed Rubin reflected later, “the basic educational
approach that law schools use remains essentially unchanged from the one that C.C.
Langdell introduced at Harvard in the years following the civil War,” and the continuity
reflected an “ain’t broke don’t fix it rationale.” Edward Rubin, What’s Wrong with
Langdell’s Method, and What to Do About It, 60 Vand L.Rev. 609, 611 ((2007).
40
Gordon, supra, at 349-64.
17
So that’s what ensued. We pursued focus groups with practitioners, meetings with faculty
business and policy schools, inventory of reforms at other law schools, and more
We contrasted the lack of change in legal education for more than 100 years with changes
learning.41 Faculty and practitioners alike urged us to explore collaboration across other
disciplines, including economics, history, psychology, game theory, and philosophy both
to understand law from the outside and to improve lawyers’ advice and solutions.
Our process bore fruit. First, in 2005, the faculty approved reform of the upper level
curriculum by revising the assumption that every student should pursue largely the same
program. For years, not only the first year but much of the upper year curriculum was
required; the last major reform shifted second and third year required courses to the status
seminars, clinics and other opportunities reflecting the wide range of student interests,
faculty expertise, and social need. Should we eliminate all requirements, and treat the
curriculum as a cafeteria, leaving the organization of student studies after the first year to
41
Compare David Garvin, Making the Case: Professional Education for the World of
Practice, Harv. Mag,. Sept-Oct. 2003, p. 58.
18
students? In 2005, we concluded students deserve more input and guidance, but we
rejected “majors” as too confining, or worse, at risk of inducing students to cluster around
what seems most likely to keep open their options or secure the highest paying jobs rather
So the faculty committed to work on guiding students toward concentrated and focused
studies, with opportunities for progression through advanced work even more to see what
becoming expert involves than to certify new-found expertise. Faculty, students, and
practitioners alike emphasized the need for broad education and nimbleness given the
develop distinctive Programs of Study, organizing classroom, clinical, research, and work
opportunities to help students pursue greater progression and depth before graduation.
Each program also offers links to courses and opportunities in other schools and
disciplines across this and other universities. Our five Initial Programs of Study have
been: Law and Government; Law and Business; Law, Science and Technology; Law and
the International Sphere; and Law and Social Change. And this spring we’ve added a
sixth: Criminal Law and Justice. Other cross-cutting themes such as law and history and
law and economics offer frameworks for students drawn to methodological focus and
some with plans to become law teachers. The programs of study include recommended
courses, clinics, and summer work; opportunities for research roles with faculty; and in
some instances, social groups, virtual and face-to-face; this year, the Law and Social
Change program of study held a retreat, and developed ideas for social and intellectual
19
connections among students and faculty, such as a study section of courses like Tax for
Popular workshop courses combine seminar work with engagement with outside scholars
who deliver works-in-progress and invigorate law and business, public law, and
international and comparative law. We soon will launch a new workshop combining law
In 2006, then, the faculty unanimously embraced a new first-year curriculum designed to
provide a foundation to enable any student who wishes to pursue an advanced Program of
Study. The reform of the first year curriculum greater attention to statutes and
regulations;
To pursue these goals, the law school added three new course requirements to the first-
year curriculum:
By 2010, the legislation/regulation course has become for many students the pivotal
course, orienting them not only to the regulatory state but to legal thinking in general;
20
Professors John Manning and Matthew Stephenson’s version of the course forms the
basis of a new book, to be published next month. The international and comparative law
courses de-center the United States, locating our cultures—and extending a level of
The problem-solving course is the one drawing greatest interest among practicing
lawyers, government officials, and others out there in the world. At its heart, this course
places students in the role of a problem-solver with a client who has needs and
The course bridges theory and practice by presenting students with messy, concrete
category nor in terms of any particular strategy, whether legal, business, public relations
or other potential method for resolving the issue. The course also involves teamwork and
integration of legal knowledge with practical judgment as students are asked to help
clients attain their goals consistent with legal and ethical considerations. The Problem-
Solving Workshop takes advantage of the January term and allows students and faculty
and to present proposals to outside lawyers as well as classmates. The seven faculty
members teaching the course meet intensively to share pedagogical and substantive
This course cannot proceed without new materials and new pedagogy. We chose to
distractions of other courses but with one semester of courses under their belts. The
21
faculty develops new teaching materials, oriented not around the reports of appellate
decision but instead using complicated situations involving facts and diverse bodies of
law and demanding both creativity and analytic rigor in generating and assessing
solutions. Developed and pilot-tested for two years with upper level students, Harvard
rolled out the Problem-solving course was rolled out for all first year students in January
2010. Students work in teams, and we experimented this year—some sections kept the
same teams for 3 weeks, some rotated; some gave general feedback, some used “speed-
dating” style one-on-one feedback about the team experience. Teamwork, engagement
afternoon; produce a two-page memo in the next three hours—have made the course
Announcing these reforms in 2006, Dean Elena Kagan wasn’t shy. She said, "This marks
a major step forward in our efforts to develop a law school curriculum for the 21st
century. Over 100 years ago, Harvard Law School invented the basic law school
curriculum, and we are now making the most significant revisions to it since that time….
I am confident will give our students the best possible training for the leadership
As chair of the process, I said in 2006: "We believe these changes will better prepare our
students to think about and practice in a legal world in which regulations and statutes
play an equal or more important role in the creation and elaboration of law as do court
decisions; in which transactions and interactions among parties are increasingly global in
nature; and in which economic, cultural and technological changes call upon the best
22
lawyers to become skilled in system design, problem solving and creative approaches to
issues."
In the spirit of a kind of zero-based budgeting we used—forcing each element of the pre-
existing curriculum to justify itself –the reform also condensed traditional first-year
curriculum (contracts, torts, civil procedure, criminal law, and property) and by revising
the school’s calendar to create a new January term for first-year students, devoted
exclusively to the Problems and Theories class. And both the first year reforms and
Programs of Study are designed to propel ongoing review, reform, and assessment.
We undertook these changes before the financial crisis that started in 2007 and in whose
wake we all live. The collapse of the world-wide housing bubble, cascading into
securities, banks, stock markets, credit rating agencies, and law firms, affecting local
accentuate the importance of the independence of lawyers and professional standards that
operate apart from the immediate interests of clients; they also underscore the importance
of lawyers of long-term and systemic thinking about risk, regulation, and institutional
design. Colleagues Elizabeth Warren, Lucien Bebchuk, Howell Jackson and others are
hard at work on these issues. Meanwhile, the financial challenges may be accelerating
trends in the legal profession itself that are already underway, such as experiments in
different forms of organizing, managing, and paying for legal work – including
23
outsourcing, creations of global mega-firms, and collaborations across different groups of
lawyers.
initiative on changes in legal education and the profession; we will co-lead with New
York Law School a conference in October and have a global meeting in the works for
2011. David’s center, the Program on the Legal Profession, is the only academic
enterprise in the country devoted to the empirical study of legal practice and delivery of
professional services, including structural changes on how legal work is organized and
compensated, as well as detailed study of the lives of lawyers, including race, ethnicity
and gender within the profession. Besides offering executive education and engaging in
ongoing research, this work contributes to the law school’s own admissions and career
And I have asked my colleague John Palfrey, scholar and master of new technologies,
leader of the library, to help the faculty pursue the possibilities of new and old
“the millenials” and their successors. Already underway are inventive experiments and
Two years after Harvard started our reform, The Carnegie Foundation for the
Advancement of Teaching launched an inquiry into legal education, echoing its own
24
earlier work published in 1914. The Carnegie Report, issued in January 2007,42
concluded that:
(1) The law school curriculum should integrate doctrine, skills, and professional
(2) New and varied teaching techniques should be added to the usual combination
(3) Law schools should devise new ways to assess student learning and provide feedback.
It is striking how much this report echoed many elements of the Carnegie report
published in 1914 in which Josef Redlich criticized the case method, called for improved
education for practice and for public dimensions.43 Once again, the tensions between
theory and practice, doing well and doing good surface in legal education and its critics.
The Carnegie report is perhaps most notable in emphasizing the importance of the social
and moral development that law schools always shape and pushing for more explicit
in matters as small as returning phone calls and emails and matters as large as taking
42
Carnegie Foundation for the Advancement of Teaching, Educating Lawyers:
Preparation for the Profession of Law (2007). See also James R Maxeiner, Educating
Lawyers Now and Then: An Essay Comparing the 2007 and 1914 Carnegie Foundation
Reports on Legal Education 2007.
43
Josef Redlich, The Common Law and the Case Method in American University Law
Schools (1914).
25
responsibility, digging deeply into what lies behind an apparent client request or
opportunity. Attorney Wayne Hyatt wrote recently that what is missing in legal
understand people, to solve not just spot problems, and to understand multidisciplinary
This contemporary phase of reform seems to be picking up more speed and producing
more action than mere hand-wringing reports. One sign is the creation of the new law
school at UC-Irvine, with founding Dean Erwin Chemerinsky. The school claims it
wants its graduates to leave school no only to thinking like a lawyer but ready actually to
practice law.” Apprenticeship and problem-solving are key concepts guiding this school,
too.
Four features of the current moment suggest that legal education could be on the brink of
1) the first comes from still rudimentary but quickly improving knowledge of adult
learning styles, the impact of different pedagogies, and the relationships between and
44
Wayne Hyatt, A Lawyer’s lament: Law Schools and the Profession of Law, 60
Vanderbilt L Rev 385 (2007).
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2) the second is new technologies, including digital texts, the internet, and video-
conferencing, enabling new pedagogies but also shaping the brains and expectations of
3) the third is the undeniably global context of law practice, law, economies, and
And 4th) is the Value proposition confronting all elite higher education: are the escalating
tuitions justified by life-earnings and if not, how other than through loans, repaid by the
William Henderson, says: “’Law Schools need to earn their hefty tuition price tags by
offering teaching methods that are proven to increase students’ human capital and
jobs, smaller firms----will the cross-subsidy model work? This pertains to the
two degree programs. Compare this with business schools--where the MBA is just one
among programs, including executive education and publication sales. The mix of
activities is relevant not only to sources of funds but also to the location of professional
training within the larger duties and opportunities of the professions. So public health
schools engage in substantial amounts of sponsored research and seek to advance public
health and knowledge about health. Some journalism schools—which are exploring
45
Mark West, Making Lawyers (and Gangsters) in Japan, 60 Vand. L. Rev. 439 (2007).
46
Andrew P. Morriss and William D. Henderson, The New Math of Legal Education,
National Jurist, at 39 July 2008), available at
www.abanet.org/yld/tyl/july08/morriss.html.
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ways that their university-based programs to fill the growing deficit in local news
As a sheer predictive matter, law schools are likely to experiment with different kinds of
programs and may over time specialize and diverge with more variety in what they aim to
do. Some may pursue on-line instruction, 2-year degrees, or certification in particular
fields; and others may emphasize interdisciplinary programs and build competence in
At stake are interests not just of students and clients 47 but also the public. Who has
access to enter the legal profession, how much the profession and the law schools think
about interests other than those of paying clients, and whether students with desires to do
good as well as do well perceive opportunities to do so, will be shaped by the terms of
financial aid, loan forgiveness, and other funding to cover the costs of legal education.
Even more striking than the persistence of the case method is the continuous struggles in
legal education over how to balance theory and practice, preparation of lawyers who
serve paying clients versus those who cannot pay, critique of law and the profession
versus assistance to it and its insularity. The influence of the business model—who pays
the bills—cannot be dismissed. Yet Langdell is highly relevant now not for his invention
of the case method, but for his willingness to rethink the business model of legal
education. He rejected the easy and old business model in favor of independent
47
Deborah Rhode, In the Interests of Justice: Reforming the Legal Profession 188 (2000).
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professional standards. For Langdell, that meant establishing high academic standards
for admission, examinations, and graduation—with higher tuition. For us, it could mean
strengthening and deepening the public service mission of the law school—as a place that
tackles social and economic problems, provides direct legal services, convenes stake-
holders to frame public agendas—and both deploys student talent and enhances students’
education in the process. We could take up problem-solving on a big scale: finding ways
that faculty, students, and staff can tackle ongoing and big problems, like corporate
governance, governance of the internet, structure of and access to legal services, energy
and environment regulation, strengthening the rule of law in fragile societies—not only
as individuals but in concert, so that the school itself addresses the twin and at times in
tension goals of serving individuals and service the public. Especially for a place as
visible, influential, and relatively rich as Harvard, taking the risk to serve others is the
right thing to do and may just also be the way to diversify sources of financial support.
Movement in this direction is especially compelling now. I believe that this time will be
known as an inflection point in world history because of huge revolutions taking off in
the world—changes that make this an electrifying time to be in the legal profession. At
least five consequential world-wide shifts now span technologies, societies, economies,
and politics:
nanotechnology;
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3. globalization—integrating the economies, legal and professional services,
exchange;
5. mass population growth and migrations of people, due to economic, political, and
environmental changes.
These shifts each day generate fundamental questions whose answers will alter the shape
I am certain that lawyers will play indispensible roles in tackling the issues raised by
these developments and harnessing opportunities to secure orderly change and enhance
human welfare. Lawyers are already working hard to address complex questions related
• Who owns a cell line? A double-click icon? A digitized form contract term?;
• How can the information revolution lessen rather than exacerbate the gap between
the haves and the have-nots—when, despite extraordinary world wealth, 2.8
• What mechanism should be put in place to monitor the auditor who vouches for
clean energy in carbon trading markets? What if any rules should restrict
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• Are there common institutions and values can guide encounters and collisions
between people of different religions and traditions? What rules about borders and
particular country?
At HLS, the Berkman Center is leading vital research and initiatives on the information
transformations with work not only on health care reform but also patent reform,
challenges, human migration and conflict, we have ambitious initiatives underway. And
we are poised to use global communications and partnerships to reinvent law teaching,
In these contexts and others, advanced students can do advanced work—in conjunction
with faculty and clinics or in parallel and mutually supporting ways. How can law
schools make more opportunities for this kind of work and actually promote new forms
international discussions and co-production of contract terms, treaty terms, and other
legal materials come to mind. So do efforts to convene public and private actors around
issues – like internet governance, human rights and corporate behavior, environmental
and energy planning—where traditional legal tools of litigation and legislation can at best
offer partial solutions in concert with private enterprise, agreements, and collaborations.
A law school must at a minimum equip students to identify such issues and assemble a
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wide range of tools and strategies to tackle them. I think we should also as its own
presence in the world contribute to improving the law, regulatory regimes, access to
Lawyers have building blocks to help frame the debates and generate alternative
solutions. Through contract, tort, adversarial and collaborative procedures, lawyers use
analytic arguments to connect moral and institutional concerns and to translate interests
into deals and decisions. Oliver Wendell Holmes, Jr., said, “The artist sees the lines of
growth in a tree, the business man an opportunity in a muddle, the lawyer a principle in a
lot of dramatic detail.”48 Lawyers are skilled in recognizing and translating complex and
abstract human values and goals into institutions and practices. We find ways to
accommodate competing interests and to resolve conflicts. We repair the boat of the law
at sea and even find ways to design a new ship while already on the voyage. We do
something right already: we teach people how to deploy analysis and also common sense
as we work together to meet the challenges we face. We recruit, educate, and guide the
next generation of leaders—for this country and around the world. More than in any time
problems that affect us all. We are at an inflection point in world history—when the
ways we learn and teach, do business, pursue freedom, equality, and security are
transforming before our eyes. I am confident that Harvard Law School can play a vital
role in these changes and it is exciting to have the chance to work with our
48
Letter to John C. H. Wu, 16 June 1923, in Justice Holmes to Dr. Wu 13 (1947).
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extraordinarily talented faculty, students, alumni, and peers in other parts of this and
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