The Law Quarterly's invitation to the faculty indicated that this essay
could be about almost anything. I began another article on the rule against
perpetuities, but I soon stopped. That piece could wait; after all, they said
the essay could be about "almost anything." I am a very senior member of our
faculty--this is my thirty-fifth year at the Washington University School of
Law. Seniority is supposed to bring privileges, and among them is the
opportunity to reflect on the past, present, and future. Best of all, there is
the opportunity to grouse, grumble, and forewarn.
This issue celebrates our new building--a building for a new century. For me and several other members of the faculty
it is our second new building at Washington University. For those who have had to live through the era of Mudd
Hall, Anheuser-Busch Hall is a dream come true. Our new facility looks great
and feels great. It promotes learning and scholarship, but it also enlivens and
enriches the spirits of those who make it their professional home. Indeed, this
change to a new building warrants both comment and celebration.
There have been other significant changes during the past thirty-five years
that one must note and punctuate with pride. The student body is three times
larger and much more diverse in terms of geography, race, gender, and
background. The entering credentials of these
students also suggest that they are more talented and accomplished. The same might be said of the faculty. It is
also three times larger and much more diverse. In particular, over thirty
percent of the faculty are women and just
under ten percent are African-(American).
Young faculty come to us with outstanding records from outstanding law schools,
with experience enriched by clerkships, practice, and sometimes prior
teaching. Their scholarship is innovative,
thoughtful, provocative, and very frequent.
And as an entire faculty, our articles, books, and treatises compare favorably
with other law schools throughout this country.
There is more. The Washington University School of Law offers several advanced
degrees. It also offers joint degree
programs with eight other departments, such as East Asian Studies, business
administration, health administration, social work, and engineering and
policy. The curriculum of today is also
larger and more diverse; indeed, it would be virtually unrecognizable for
graduates of the sixties and early seventies. To be sure, the faculty is larger so there should be more
course offerings, but the curriculum is also fuller and richer than before. For
example, to reflect the problems and challenges of the future, we now have
courses and seminars on Asian Law, Japanese Law, European Community Law,
Socialist Law in Transition, Comparative Employment Rights, Aliens and the Law,
Secrecy Whistle-Blowing and Leaking, Corporate White Collar Crime, Health Law,
Environmental Law, and Intellectual Property. Further, to reflect the
importance of "applied lawyering skills," we now offer several courses that
pertain to planning and drafting as well as courses or seminars on Alternative
Dispute Resolution, Pretrial Practice, Trial Practice, and Business
Reorganization. And to create a practicum
experience, we offer in most years the Urban Law Clinic, Federal Criminal
Prosecution Clinic, Federal Civil Litigation Clinic, Public Interest Lawyering
Clinic, Congressional Clinic, and Federal Administrative Agency Clinic. Years ago, we had one law review and one
moot court program. Today, we have two major law reviews, three moot court
programs and competitions, a mock trial competition, a negotiation competition,
and a client-counseling competition.
These are, however, not the only changes that have occurred during the last
thirty-five years. Further, there are
other changes that seem imminent as one looks to the future. We are on the doorstep of the millennium; already we have
a building well suited to the twenty-first century. And with this, there may be
a tendency to leave all that is old behind. But is this entirely good? I want
to give my two cents worth, so here it is.
In 1963 the Washington University School of Law stood for commitment to
teaching and education. Teachers and students alike entered each class prepared
for rigorous dialogue that honed skills that would last a professional
lifetime. Some faculty relied heavily upon the socratic method, but some
supplied strong doses of lecture. Common to both, however, was a recognition
that teaching only begins in the classroom. Inevitably, it would spill over to
Holmes Lounge and then to individual offices. Our mission was to teach. And to do this we had to engage students
intellectually. This was a very personal and gratifying experience--once again
for students and teachers alike.
Our classes were very small. First-year courses were offered with two sections
of forty students in each, and elective courses typically had enrollments of
fewer than twenty students. The curriculum was thin, but there were three years
of writing requirements. The final
requirement was a seminar. Actually it was one-on-one supervised instruction
with respect to research and writing. Those who were on Law Quarterly
were exempt. Those who were not had a law review experience reproduced
under the direct supervision of a full-time faculty member. The objective for
each student was to produce a major paper of publishable quality. Nearly all
students accomplished exactly that. And along the way faculty and student
friendships were forged.
This mutual commitment--this culture--was a tradition. I like to think it was
unique. I do know this much: it was unlike my own law school and the law school
where I served as an instructor before I came to the Washington University
School of Law. The uniqueness was also
confirmed by students who transferred to or did graduate work at other law
schools and by pre-law advisors who recognized something special at Washington
University. Although the pedigree of
schools ranked higher than us may have offered instant recognition and
opportunity, our graduates soon discovered that no school could compete with
the education they had received.
The era of Mudd Hall commenced in 1971 and initiated a decade of change.
Indeed, most of the changes described previously were hatched during that
period of time. And with these changes
there were often subtle pressures to forego our commitment to teaching and
accessibility. Although the building was a
disaster, our efforts at preserving this tradition were not. Commentators on
law schools noted this commitment and ranked us number one in that regard. The average size of course enrollments
increased during the seventies, but so did the mutual commitment of faculty and
students to high quality education. One could attribute this in part to senior
faculty who zealously fought to preserve their tradition. But there was also
considerable self-selection among new faculty who cherished these same goals
and sought an institution that served them. The tradition that was conceived
and nurtured in January Hall blossomed in Mudd Hall. Nevertheless, one must
take note that, as we enter Anheuser-Busch Hall and the twenty-first century,
there are severe storm warnings that threaten the quality of our product and
even the foundation of our rich tradition.
In 1997, the law school offers better writing experiences than ever before. We
have an intensive first-year program that uses the full time of four faculty
members. Further, during the second two
years of law school we have a seminar requirement that features a significant
writing component. Although there is only
one seminar requirement, students can and do involve themselves in more than
one writing experience. These additional experiences might include an
additional seminar, faculty supervised research and writing, one of the law
journals, or moot court. With this training, one might ask: do students of the
nineties write better or at least as well as students of the sixties and
seventies? The answer is: no, they do not even write as well! And this includes all components of a good
paper--research, organization, logic, and clarity of expression.
Why? With better entering credentials and better law school training, how can
this be? One of my retired colleagues
facetiously blames it on the "Xerox Machine." In truth, however, he may be on
to something. Today students conduct their research by finding, reproducing,
and arranging duplicated cases, statutes, and other resource materials. Many
students make no real attempt to analyze, digest, or synthesize these materials
prior to writing the paper itself. Although this system allows more cases to be
collected in less time, the product that ultimately emerges may be less
Ongoing synthesis of materials requires forethought and judgment as one
proceeds through a search. Some materials stand out as central and essential,
but others may be quickly discarded. The "Xeroxing System" presents a pile of
materials at crunch time without prior discrimination. This can result in a
final resource and discussion base with too little--through the exclusion of
materials that are relevant--or it can present a base with too much--through
the inclusion of materials that are unnecessary. Further, the "Xeroxing System"
tends to condense "think time," while the digesting system spreads it out. The
process of critical thought takes time. Sound organization, logical and
persuasive progression, and creativity cannot be beckoned upon a moment's
From time-to-time, however, I am inclined to blame the decline in research
skills on computerized research. In this regard, I blame the user and not the
instrument. Computerized research clearly can produce more information than
before, and it can accomplish this almost instantaneously. Nevertheless, it
does have its limitations. Today's law students have been raised on computers.
They depend upon them for work and often for play. Indeed, they are more
comfortable before a computer than a book.
Consequently, many will conduct their research exclusively with the computer
despite clear warning that its resource base is limited and, therefore, that it
will not comprehend all potential authorities. This total reliance on
computerized research produces a research base that is flawed and ultimately
deficient. Additionally, because students conduct much of their computerized
research through key words and phrases, their collection of materials is often
too large or too small--indeed, sometimes they find nothing at all. Frequently,
the collection is too large because there are hundreds of cases that use or
refer to the specific research terminology without regard to its importance to
the case or the rulings within it. Conversely, the key word or phrase may yield
too little because such language reflects an idea or concept that has not been
reduced to specific language formats that are often repeated.
One cannot, however, blame everything upon the "Xerox Machine" or the computer.
In all probability, current law students do not write as well as they did
thirty years ago because of inexperience. In short, the decline cannot be
attributed entirely to technology or to what law schools are doing or not
doing. Mainly it has to do with a student's previous education--in particular
college education. Over the years the Washington University School of Law has
included two questions in its application that are not used for admissions
purposes. Instead we include them to track the writing experience of students
at their respective colleges. These questions ask: in which courses the student
had a timed essay test and in which courses the student had a substantial
amount of writing. Unbelievably, all too often we will see answers that say
none for both questions. Even more
unbelievable, we have seen history and political science majors from highly
regarded universities who provide us with answers that say: two and two. And they are the same two courses! These
answers are not aberrations. This much is clear: writing requirements and
writing experience in undergraduate programs have declined precipitously,
although not uniformly.
To be sure, experience with timed essay tests may not prepare one to write
better, but it does prepare college students for the essay tests they are
likely to encounter in law school. More important, however, term papers in
college courses--even those without research components--do produce better
written work over time. The more one writes the better one gets, especially if
each experience is accompanied by thoughtful scrutiny and feedback. Even today,
students who come from colleges that create writing experiences in nearly every
course do better in law school. And I am
convinced that these same students ultimately do better in practice.
The reason for the decline of writing in college probably has something to do
with efficiency and economy in higher education. College costs have gone up
dramatically in the last thirty years, and these costs have been met with
larger enrollments and higher tuitions. A writing component that requires
feedback from teachers is very time intensive. With larger course enrollments, universities and teachers
must struggle to find that critical resource. Colleges must either find more
teachers, which they cannot afford, or teachers must allocate more time, which
they cannot create. Multiple choice tests are more efficient than essay tests
and far more efficient than term papers. Because of this, it is no surprise
that multiple choice now dominates testing methodologies. Mass-produced education has required many changes and the
virtual disappearance of the term paper or thesis constitutes one of these
The search for an explanation for the decline is useful; however, the
assignment of blame and attempts to shift responsibility are not. Law schools
cannot redirect the course of college education. Even if we could, one could
not await such redirection. We can, however, redouble our efforts. The problem
is serious and immediate. Whatever the reason, the writing skills of the people
we graduate are declining and many might view them as inadequate. For the lawyer, there is nothing more
important than the written word. Lawyers
write constantly. They draft letters, contracts, wills, trusts, complaints,
motions, memoranda, and briefs. These documents must be clear, precise,
comprehensive, accurate, organized, logical, and persuasive. No practitioner
ever escapes the written word. And there is no evidence that things will be
different during the twenty-first century.
Whatever the cause, the decline in writing skills presents a very serious
problem for the profession. But we are the training ground for the profession;
so it is our problem and our mission to find a solution.
What can be done? To begin with, one must recognize that the problem is
soluble; indeed, there are many different kinds of solutions. For example, many
schools now have first-year writing programs taught by full time faculty, who
are sometimes tenured but most often are not. One could expand these programs so that they continue the
intensive writing experience for the full three years. The training could be
progressive. First-year programs often concentrate on legal memoranda and
briefs. Second and third year programs could concentrate on other kinds of
writing such as leases, contracts, statutes, and advisory opinions and letters.
Or instead of extended writing programs modeled after the first-year
experience, one might simply impose or increase writing requirements for the
second and third years of law school. For example, two or three seminars might
be required instead of one. Additionally, a school might require enrollment in
one or more planning and drafting courses,
or in litigation-related courses with a significant written component.
One thing, however, is clear. Because writing instruction is labor and time
intensive, these additional experiences will bear a heavy cost. Expanded legal
writing programs taught by full-time faculty will require additional faculty
resources or reassignment of existing faculty to these programs. Expanded
seminar and planning and drafting requirements could be accomplished with
additional faculty. More than likely, however, it will be achieved through
reassignment and, therefore, the elimination of some courses. Or it might be
achieved through conversion of existing courses into seminars whose enrollments
will necessarily be limited. Either way
there will be many students who lose out on a subject area they want. Either
way there will be a significant cost.
Given the pressure to stabilize tuition and therefore to hold down costs, the probable solution will produce a
downsizing of curricular choice and opportunities for specialization. These
consequences will not be popular at a time in which the profession is moving
rapidly in the direction of specialization and law school curricula are
mirroring that trend. Most of all, the
solution and its consequences will be difficult to sell to prospective students
and sometimes even to the bar. It may also
be difficult to sell to alumni who are asked to support it through annual
gifts. Information and the courses needed to provide it are "in." Intensive skill courses, especially those
that purport to teach students something they believe they already have, are
"out." The problem and the dilemma this
trend creates are real, and the Washington University School of Law must
address them if we are to remain true to our tradition and mission of
excellence in education. We must swim upstream and be in the vanguard of
schools that know the universal and eternal importance of the written word and
are truly committed to teaching the skills needed to observe it.
This leads me to my next storm warning, something even more important and
something connected again to the appeal of economy and efficiency. During the
past academic year, we interviewed an entry level candidate to teach at this
law school. His academic record was impeccable. He already had earned both a
Ph.D. and a J.D., both from prestigious schools that everyone would rank in the
top ten, and he had some previous teaching experience in a non-law school
setting. Additionally, he had a record of excellent publications and an agenda
for future work that was equally impressive. He was asked about teaching and
here are some of his views.
To begin with, although he saw some merit in the socratic method when conducted
without abuse, he would opt for lecture because it was the most efficient way
to pass on information. And information and its comprehension were at the core
of what he wanted to pass on to his students.
Additionally, he said that the first thing he would do when beginning his work
as a law teacher would be to produce his own Web Site. Quite simply, this was
the most efficient method for answering student questions. Many students would
have the same question, and this was a way for each student to question him and
for him to reach everyone at once. It was also an efficient method for
interacting with students. He could respond from his office or home at any time
and this was far more efficient than office hours or certainly an open door.
Using the web site would enable him ultimately to trade office hours for
research and writing. We did not make him an offer, but I am still concerned
because his views about legal education are, in one form or another, becoming
more and more prevalent. I am deeply
troubled because these views threaten not only the tradition and excellence of
this law school, but because they threaten the very core of legal education.
Indeed, they threaten the very things that make legal education different and
Lawyers are first and foremost problems solvers. The solutions to problems require information; more
importantly, however, they require analytic skills. These are the skills that
distinguish lawyers from other professionals and often enable them to solve
problems that transcend the law itself.
These skills are really what legal education is and must be about. To be sure,
solutions to problems depend upon the application of rules. Without command of
these rules, a lawyer is unable to forge a solution and perhaps unable even to
recognize the problem. Rules are important, but they change over
time--sometimes slowly, sometimes overnight. One must expect change during the
course of a professional lifetime.
The one constant from law school, however, are skills. These are the skills
that enable a lawyer to elicit the story (the facts), to identify within the
story relevant problems and issues, to discover and master rules and principles
that may affect these problems and issues, and to develop a strategy or
solution that reflects what the lawyer thinks is the law, might be the law, and
should be the law. These skills will always transcend information that is
transitory. They distinguish the craft and therefore are at its core.
Consequently, they must be central to the mission of legal education.
How then do teachers impart these critical skills to students? Students read a
case and their teacher asks them to state the issue. The teacher or the course
book may also present a problem or a hypothetical and again ask students to
identify the issue or, often, issues. Sometimes the court will recite the
issue, but sometimes it is plainly wrong.
A teacher may attempt to elicit the correct issue from a student with actual
interaction, or she may explain entirely through lecture the issues to cases
and problems. Students may become confused and ask the following question: I
understand the issue when you carefully identify and explain it, but how do I
go about doing that on my own? Our response--either explicit or implicit--is
that they should follow along and sooner or later they will get the hang of it.
Somehow by osmosis this experience will produce these skills. Even with a
faculty explanation that provides concrete step-by-step instruction concerning
the formulation of issues, the emphasis in
learning is still repetition over time.
Of necessity some of this process must be accomplished vicariously through
observation of the work of others.
Nevertheless, anyone who has ever struggled with this knows that real learning
of skills is accomplished experientially. Knowing the issue and developing
basic tools for analysis and problem solving are much like learning to ride a
bicycle. Quite simply, the skill of balancing a bike cannot be learned
exclusively through books and lecture. Nor can it be learned merely through
observation. Balancing on two wheels demands active participation. One must
attempt to ride without expectation of instantaneous success. One must fall,
get up, try again, get up, try again and over time succeed. One only gets the
hang of it by actually doing it and, if necessary, doing it over and over and
I am describing a process that is often labelled socratic, and the illustration
concerning issue identification occurs within the context of the case method.
But the process is not really tied to either. Because the subject of our
classes is law, it only makes sense that the focus consists of cases, statutes,
regulations, and constitutions. The problem method really involves the same
thing as the case method, only it is more advanced. It focuses on the
application of the law--cases, statutes, etc.--within the context of a specific
problem and its solution. Presentation of a problem may test one's
understanding of the law or it may assume that one has already mastered it. In
either instance, one must take the next step and apply that understanding
towards a solution. Along the way, one may discover that there are different
understandings and different solutions for consideration. Indeed, the problem
method achieves what teachers of the case method frequently try to accomplish
with their hypotheticals.
As for the socratic label, it is really a misnomer. What I am describing is a method of rigorous inquiry that
need not be socratic. It does involve forcing students to think critically and
carefully. It requires them to formulate an understanding and to justify that
understanding. It requires them to apply their understanding and to defend that
application. It forces them to integrate, synthesize, critique, and explain. It
forces them to examine things logically and to elaborate policy. The forum can
be a classroom discussion with cases, it can be a seminar paper that develops
and critiques a body of law, or it can be a clinical practicum or simulation
that addresses a client's problem. Above all, it must be interactive--with
teachers, but also with students. The
process requires students to formulate an idea that is then subjected to
careful scrutiny. Next in light of that scrutiny, it requires students to
improve on that idea or understanding. And if one does this enough times,
eventually students are able to master the skill and analyze the rule or
problem--critically and comprehensively--on their own. This has been the essence of legal education and
something the Washington University School of Law does best.
Once again, however, there are storm warnings on the horizon. For years, we
have asked candidates for entry-level positions in teaching about their own
learning experiences in law school. Indeed, times are changing. More and more
we see candidates from outstanding law schools with little or even no history
with the kind of experiential learning just described. Indeed, one can identify
a very highly-regarded law school whose recent graduates inform us that there
is not a single "socratic" teacher at that school. Many classes do have
discussions, but these discussions do not include the rigorous examination or
scrutiny that enable the student and the class to move to a higher level of
skill and understanding. Undoubtedly, some people can master these skills on
their own, or at least with minimal experience. These are the best and the
brightest, and the people we often interview. They caught on, but only time and
experience will teach them that this is not the way most of us learn and must
be taught these critical skills.
My concern for Washington University is not so much now, but ten to twenty
years from now when there may be fewer and fewer teachers who recognize the
importance of these skills and how to teach them. I am concerned that there
will be a time in which there will no longer be models for experiential
learning that are a part of our faculty's recent memory and their own personal
history. And when this happens, experiential learning as we have known it will
I am concerned about the future because I believe there will be greater and
greater movement away from experiential learning and the skills that have
distinguished our craft and our education. Today we have more law than we had
ten years ago and ten years before that.
And with each generation of law student, the law becomes more and more
complex. The lure of information and the
need to teach it is irresistible, and the desire to teach all of it may become
compelling. To be sure, information can be
disseminated through interactive and experiential learning that also
concentrates on skills. Nevertheless, this experiential teaching methodology is
terribly inefficient when it comes to dissemination of information.
Experiential learning requires extraordinary patience on the part of both the
teacher and students. A student response requires scrutiny through a teacher's
thoughtful reply. And when necessary, the teacher and student must resume the
process with a principle and question that are more elementary. Ideally, the
student must always see and achieve the light herself. This consumes time, and
often it is a lot of time. Inevitably, experiential learning must sacrifice
coverage and information. Information
begets vast knowledge and expertise, but without problem solving skills both
are meaningless. Nevertheless, I fear that the lure of information will consume
legal education during the twenty-first century. And I firmly believe that legal education and lawyers
will not be better off because of it.
This leads me to the other storm warning registered for me by the remarks of
the teaching candidate previously mentioned. He would establish a Web Site to
answer student questions because it would enable him to answer student
questions efficiently and, therefore, trade student contact time for research
and writing time. My first reaction concerned new technology--computers and the
internet. If you create it, people will use it. But they will also abuse it. To
begin with, students have questions and a lot of them. Many questions warrant
answers, especially if they exist and the teacher has them. Most questions,
however, present the very best opportunities for experiential learning. Indeed,
these opportunities should be a part of the total course package, where the
learning of analytic skills and information occurs outside the classroom just
as it does within it. These experiences again occupy contact time with
students. They require a dialogue and careful guidance by a teacher instead of
straight out answers. Although the teacher may accomplish this with a heavy
hand, the student usually comes away with a sense of having solved his own
problem. And surely this is what legal education should be about. To be certain, one can conduct a
personalized dialogue with e-mail. Nevertheless, something important is lost
when the dialogue is spread out over hours and days.
Even more important, computers and the internet eliminate human contact. Every
good teacher knows that many student questions reflect more than the question
itself. Students are often terribly confused. A simple answer to their question
would not begin to address the real reason for their question. Indeed, very
often their question is fabricated into something readily answered or something
impossible to answer. The teacher must detect the reason for the question. This
is accomplished with the teacher's own questions and some explanations along
the way. But it is also detected through a student's expressions and behavior-- something that escapes a dialogue through
computers. Once detected, the teacher must fashion a dialogue that addresses
the root source of the confusion. And this may require more questions,
responses, and explanations.
In addition to confusion, every good teacher knows that student questions often
reflect nothing more than a desire for human contact and feedback. This is
especially true for first-year law students. Their anxiety level is enormous;
it is something we must always anticipate and accept. They are learning skills
that may not come naturally or immediately. They are accustomed to finding and
giving correct answers. But now their responses receive a level of scrutiny
unknown to them in the past. There may be no right answer, but they do not know
that quite yet. Apart from what goes on in the classroom and faculty offices,
they will not have feedback before the final exam. The feedback they seek may
also transcend the course. The problem they really want discussed could concern
future employment, whether they really wish to remain in law school, or it
could be personal and unrelated to school. Whether their question masks their
need to address anxiety or a personal problem, in these instances students
approach their teacher with a question intended to invoke a dialogue about them
and not a specific answer.
One should note that the foregoing discussion about the importance of
face-to-face dialogue is truly about teacher accessibility. This has been the
cornerstone of the commitment to teaching at the Washington University School
of Law. It is something that has marked us as different and very special. But
it is something that can easily be lost. The demands for faculty time will get
worse, not better. Contact time with
students translates into less time for scholarship, committees, advisory
positions, and other things. And the advances of technology will offer
substitutes--albeit inadequate--for personal contact time. The appeal of these
substitutes will be enormous. I fervently hope that the faculty of this law
school will find them resistible.
Well, this has been my two cents worth. You may find it worth more or less
depending upon your values and views about legal education.
[*] Joseph H. Zumbalen Professor
of the Law of Property, Washington University. A.B., Harvard University, 1957;
J.D., University of Chicago, 1960.
[1.] As one might expect, however, people
seldom listen, especially when one's forewarnings are of troubled times.
[2.] Our new building has been the focus of a
fund-raising campaign--entitled "Building for a New Century." This campaign,
which has been very successful, is also about building an institution for a new
century. Consequently, it transcends the new building--Anheuser-Busch Hall--and
includes fund-raising efforts targeted at scholarships, endowment, and annual
giving. Through these efforts we hope to put into place strategies for
integrating all alumni--especially young alumni--into the life of the law
[3.] I came to the Washington University School
of Law in August, 1963, and its home at that time was January Hall. In
September, 1971, the School was moved to a brand new home--Seeley G. Mudd
Hall--and the move to Anheuser-Busch Hall was made during December, 1996. Along
with me, there are several faculty members who have actively served the law
school in all three buildings.
[4.] Certain information that is needed to make
accurate comparisons is not readily available from the classes that entered the
School of Law during the early to mid 1960s. Nevertheless, as a result of my
experience as a teacher then and now, and my work on the admissions committee,
I know that important changes have occurred. For example, our program
for recruitment of students from across the country has yielded exactly that.
When I began teaching in 1963, students who hailed from either coast were
virtually nonexistent. Now, however, we have a substantial number from Florida,
Maryland, New Jersey, New York, and California. Further, in 1963 nearly all
students entered law school directly upon graduation from college. Some entered
after three years of college and obtained their college degree at the end of
their first year of law school. Today, however, most students do not come
directly to law school from college. Typically, they will take a year or more
to do something else. Consequently, the age and previous life experiences of
the entering class have increased over the years.
There is, however, some information one can glean from Bulletins of the
Washington University School of Law and from personal experience with students
from the 1960s. This information further confirms diversification of the
student body at the School of Law. In 1963, 86 students entered as freshmen.
Three were women, two were African-American, and one was a member of another
minority. Total enrollment for the entire school was 218, and these students
had attended 57 colleges. In 1964, 95 students entered as freshmen. Six were
women, one was African-American, and no other minorities were represented in
that class. Total enrollment for the entire school was 238, and these students
had attended 75 colleges. In 1965, 83 students entered as freshmen. One was a
woman, one was an African-American, and two came from other minorities. Total
enrollment for the entire school was 228, and these students had attended 78
colleges. Significant attrition occurred (a percentage much greater than that
which occurs today) in each of these classes so that the numbers at graduation
were considerably less than those at the time of entry. This attrition affected
the representation of women and minorities just the same as it did the rest of
the class. Because their numbers were so small to begin with, attrition
sometimes completely wiped-out the representation of a particular group by the
time of graduation.
By way of comparison, in 1997 197 students entered the School of Law as
freshmen. Ninety-three (47.2%) were women, 18 (9.1%) were African-American,
five (2.5%) were American Indian, 14 (7.1%) were Asian, and 9 (4.6%) were
Hispanic. Further, this entering class of 197--a number close to the total
enrollment of the entire school in the 1960s--attended 113 colleges.
[5.] One should note, however, that numerical
credentials often belie talent. Although their "LSAT" test scores and
cumulative "GPAs" were lower than applicants from the nineties, the classes of
the sixties and seventies were extraordinarily talented as their careers have
demonstrated. One thing I know for certain: the classroom dialogues of the
sixties and seventies were as vigorous and sophisticated as any I have seen
during my entire time at the Washington University School of Law.
[6.] In commenting on the Washington University
School of Law, the Princeton Review observed: "The overall strength of
the Washington J.D. program derives in large part from the law school's highly
respected (read; highly published) faculty, more than one third of whom are
women. (This degree of faculty gender balance is almost unheard of among the
nation's finest law schools.)" PRINCETON REVIEW 432 (1996).
[7.] We have three faculty members who are
black. Two come from the United States and one from an African nation.
[8.] The Washington University School of Law
1997-1998 Bulletin--which was actually published in 1996--included the
following biographical information about its untenured faculty.
Stuart Banner, J.D. Stanford Law School. Professor Banner joined the School of
Law in 1993. Before beginning his teaching career, Professor Banner was a law
clerk to Judge Alex Kozinski, United States Court of Appeals for the Ninth
Circuit and to Justice Sandra Day O'Connor, Supreme Court of the United States.
He has also been a staff attorney at the Office of the Appellate Defender and
an associate at Davis Polk & Wardwell, both in New York.
. . . .
Kathleen Clark, J.D. Yale Law School. Professor Clark, who joined the School of
Law in 1993, specializes in legal ethics and government ethics. After
graduation from the Yale Law School, she was a law clerk to Judge Harold H.
Green of the United States District Court, District of Columbia, and counsel to
the Senate Judiciary Committee.
. . . .
Pauline Tongchoo Kim, J.D. Harvard University Law School. Professor Kim joined
the School of Law in 1994. Before beginning her teaching career, she was a
staff attorney at the Employment Law Center, Legal Aid Society of San
Francisco, and a law clerk to Judge Cecil F. Poole, United States Court of
Appeals for the Ninth Circuit. In 1984-85 she was a Henry Fellow at New
college, Oxford University.
. . . .
Ronald Mann, J.D. University of Texas-Austin School of Law. Before joining the
School of Law , Professor Mann was a law clerk to Justice Lewis F. Powell of
the Supreme Court of the United States. He was also an assistant to the
solicitor general of the United States, where his responsibilities included
briefing and arguing cases . . . before the Supreme Court. Professor
Mann has also practiced commercial law in Houston, Texas.
. . . .
Curtis J. Milhaupt, J.D. Columbia University School of Law. Professor Milhaupt
joined the law faculty in 1994 after having practiced corporate law in the New
York and Tokyo office of Shearman & Sterling. While still in private
practice, he taught Japanese law and administered the Japanese Legal Studies
Program as an associate research scholar at Columbia Law School, as well as
conducted research on Japanese corporate law and securities regulation at the
University of Tokyo as a Japan foundation Fellow.
. . . .
Karen Porter, J.D. Yale Law School. Professor Porter has worked extensively on
issues surrounding AIDS and the law. Before coming to Washington University,
she was assistant professor in the Department of Epidemiology and Social
Medicine at Albert Einstein College of Medicine in New York. From 1989 to 1993,
Professor Porter served as senior policy analyst and staff counsel for the
National Commission on AIDS.
. . . .
Leila Sadat Wexler, J.D. Tulane University School of Law, L.L.M. Columbia
University School of Law, D.E.A. University of Paris-Sorbonne. Professor Wexler
has firsthand knowledge of international and comparative law. A member of the
French bar, she clerked for the Conseil d'Etat and the Cour de Cassation, both
Supreme Courts of France. Professor Wexler practiced international commercial
law in Paris for five years before joining Washington University.
Washington University School of Law 1997-1998 Bulletin, 39, 40, 42, 43, 44, 45
During the summer of 1997, Professor Mann left the School of Law to join the
faculty of the University of Michigan Law School. At this same time, Brad
Joondeph, J.D. Stanford Law School, joined the School of Law's faculty. The
Course Directory for 1997-1998 includes this biographical information:
Professor Joondeph joins us from his former position as Head Teaching Fellow at
Stanford Law School, where he taught two first-year courses on Legal Research
and Writing, as well as an upper-class Administrative Law course. Prior to his
Stanford position, Professor Joondeph spent a year as a judicial clerk for
Judge Deanell Reece Tacha of the United States Court of Appeals, Tenth Circuit.
During the year of his judicial clerkship, Professor Joondeph also served as an
Adjunct instructor for the University of Kansas School of Law.
Washington University School of Law Course Directory for 1997-1998 (1997).
Professor Joondeph, since having arrived at Washington University School of
Law, has accepted a clerkship with Justice Sandra Day O'Connor of the Supreme
Court of the United States for the academic year 1999-2000.
[9.] In 1996 the Washington University School
of Law had seven untenured faculty members, and during that year they published
twelve articles. Here is a partial list of their publications: Stuart Banner,
Written Law and Unwritten Norms in Colonial St. Louis, 14 LAW &
HISTORY REV. 33 (1996); Kathleen Clark, Do We Have Enough Ethics in
Government Yet? An Answer From Fiduciary Theory, 1996 U. ILL. L. REV. 57;
Pauline T. Kim, Privacy Rights, Public Policy and the Employment
Relationship, 57 OHIO ST. L.J. 671 (1996); Ronald Mann, Bankruptcy and
the Entitlements of the Government: Whose Money Is It Anyway?, 70 N.Y.U. L.
REV. 993 (1995) (not printed until 1996); Curtis J. Milhaupt, A Relational
Theory of Japanese Corporate Governance: Contract, Culture, and the Rule of
Law, 37 HARV. INT'L L.J. 3 (1996); Leila Sadat Wexler, Official English,
Nationalism and Linguistic Terror: a French Lesson, 71 WASH. L. REV. 285
[10.] Occasionally, attempts are made to
compare the scholarly production among law schools. These comparisons must make
judgments about the value of books, articles, and other kinds of publications.
Some indices of scholarly value are ignored, while others might be weighted
heavily. Whatever system of evaluation is used, the conclusions reached
ultimately reflect some highly subjective determinations. With this in mind,
here is evidence as to the quantity of scholarly work actually published during
the year 1996 by the faculty of the Washington University School of Law. (This
does not include work in progress or work that has been completed but not yet
published.) As to books, including new editions--nine. As to chapters in
books--three. As to pocket parts and book supplements--11. As to articles--42.
This information comes from a compilation of faculty work accomplished in 1996,
and it is on file in the Dean's office.
[11.] The Washington University School of Law
offers two kinds of advanced degrees. First, there is the professional
degree--the L.L.M.--which is designed to provide advanced training in
particular areas of specialized practice. Currently, the School of Law offers
the L.L.M. in taxation. Second, there is the graduate research degree--the
L.L.M.-J.S.D.--that tailors course requirements to fit the independent program
created for the candidate. This degree is designed primarily for those who
intend to teach. The School of Law also offers a degree--Master of Juridical
Studies, or M.J.S.--for people with other careers who desire some legal
training but do not want a J.D.
[12.] In addition to the joint degree
programs mentioned in the text, the School of Law also offers such programs
with three other graduate departments. They are European studies, economics,
and political science.
[13.] The Bulletin of the Washington
University School of Law, published in December 1963, reveals that both the
first-year and second-year curriculum--with one exception, a second-year
elective course--consisted of prescribed courses all students had to take. The
first year included these courses: contracts, criminal law, interpretation of
written instruments, judicial remedies, legal bibliography, legal institutions,
torts, agency, and property. No credit was given for moot court, which was a
one semester requirement. Some of the foregoing courses were taught in both the
fall and spring semesters. The second year included these courses: commercial
law, corporations, federal system, restitution, trusts and estates,
constitutional law, evidence, federal income taxation, international law, and
the elective course. No credit was given for moot court, which was a
two-semester requirement. The curriculum for 1997-98 includes fixed course
requirements for only the first year. Thereafter, all course selection is made
on an elective basis. Requirements for graduation include a course in ethics
and a seminar, but there are numerous ways in which each student can fulfill
A quick glance at the Washington University School of Law Course Directory for
1997-1998 reveals a very different elective curriculum from that offered in
1963-64. For example, in 1963 there were 25 elective courses and four seminars.
In 1997, there are 95 courses and 12 seminars. Further, some of these courses
are offered with more than one section and some alternate every other year with
another elective so that the choices available to any student during their
second and third year should exceed the 95 courses offered. In 1963, the School
of Law offered one required course and no seminars in constitutional law, but
now there is one required course and there are seven elective courses and
seminars. The curriculum in 1963 contained one required course in international
law and one elective course on comparative law. In 1997, however, the School of
Law offers seven courses and two seminars in these areas of law. In 1963, the
curriculum contained no courses or seminars that pertained to the environment.
In 1997, the curriculum includes five such courses and seminars. And in 1963,
the curriculum contained seven courses that one might classify as training in
applied lawyering skills. In 1997, the School of Law offers as part of its
training in applied lawyering skills 26 courses.
[14.] The following planning and drafting
courses have been offered in recent years, though not necessarily on an annual
basis: jury instruction drafting, patent drafting, intellectual property and
high tech planning and drafting, business planning and drafting, sports and
entertainment law and contract drafting, estate planning and drafting, family
planning and drafting, international business drafting.
[15.] Other practicums offered are the
Criminal Justice Clinic, the Employment Law and Public Policy Clinic, the
Judicial Clerkship, and the Capital Defense Clinic.
[16.] The two law reviews are The Law
Quarterly and The Journal of Urban and Contemporary Law. There are
three intramural moot court competitions. They are the Environmental Law Moot
Court, the International Law Moot Court, and the Wiley Rutledge Moot Court.
Each of these programs produces a school team that competes in its respective
national competition. There are also intramural competitions in client
counseling and in negotiation. Each of these programs also produces a school
team that competes in a national competition. Finally, every year the school
selects a team to represent it in the national mock trial competition. These
selections involve a limited competition among interested students.
[17.] Perhaps the most significant change
concerns the cost of a legal education itself. When I arrived at the Washington
University School of Law in 1963, the annual tuition was slightly in excess of
$1000. Thirty-five years later it exceeds $20,000. In 1963, the educational
debt load of most students was minimal. But today, by the time of their
graduation from law school, many of our students will have incurred debts as a
result of college and law school that exceed $100,000.
[18.] One cannot say too much about the
effect of the computer. In planning for the new library in Mudd Hall 28 years
ago, the faculty had to allow considerable space for annual expansion of our
collection of books and documents. Planning for the future of the library in
Anheuser-Busch Hall was and will be another matter. Indeed, it is conceivable
that we will encounter a zero growth rate at some point in the future. The
explanation is a simple one: the computer. Eventually, one may have access to
all "published" materials on the computer. The impact of computer access may be
even greater with respect to law firms. One of our graduates, a named partner
of a major law firm with offices in several cities, has told me that his firm
is looking to the day in which they will have no books and no file cabinets!
Their computer network will cover all of their needs, and they will be able to
tap into its resource bank anywhere and at anytime.
[19.] In 1963, this tradition of commitment
to teaching and education was personified by one person in particular, Frank W.
Miller--who is now the James Carr Professor of Criminal Jurisprudence Emeritus.
Frank was a brilliant teacher and a master of the socratic method. His devotion
to students and his dedication to teaching were endless, both within and
without the classroom. Although he was tough and sometimes harsh, students
respected him enormously. Many revered him. Students who were prepared and
wanted to learn always found him patient and giving. To be sure, Frank
personified this tradition by example, but he also did much more. Frank was a
mentor to every young faculty member in need. At first he would forge a
friendship, invariably over lunch. With the trust that evolved, he would probe
and provoke discussion of teaching and scholarship. And along the way we would
be touched by his wisdom and direction. Some of us have never escaped his
influence. For myself, Frank continues to read and comment upon everything I
write. (This footnote appears despite his red pencil notation to delete it.)
[20.] During the first year, each student was
required to take a course in legal bibliography in the fall and to fulfill a
moot court exercise in the spring. During the second year, students were
required to research a problem and to prepare a legal memorandum under the
direct supervision of a full-time faculty member. Finally, during the third
year students were required to take a seminar. These seminars were intended to
reproduce the experience of writing a law review note, but the experience was
under the direct supervision of a faculty member instead of a note editor. As
one might expect, senior members of the Law Quarterly were exempted from
[21.] This was certainly true for seminars,
but it was also true for students and teachers in nearly every course. I can
speak best for myself. It was my good fortune to have grown-up during this era
of teaching at the Washington University School of Law. Students from that
time--now older alumni--are the best friends that a person can have. I am
describing my experience, but I know it has been the same for Professors Frank
Miller, Jules Gerard, William Jones, Gray Dorsey, and Michael Greenfield.
[22.] I attended the University of Chicago
Law School and I served one year as an Instructor at the University of Michigan
Law School. In 1963, the faculty and student body at the former school were
twice as large as the faculty and student body at the Washington University
School of Law and the latter was nearly four times as large. Both of these
other schools had outstanding students and outstanding faculties. Neither of
these faculties, however, shared the same universal commitment to teaching
excellence as did the 11 members of Washington University's full-time faculty.
Neither faculty made interaction and accessibility a priority. And neither
faculty seemed to generate the warm, close, and personal friendships with
students that marked the experience of both the teachers and students at
Washington University. Distance and indifference were not uncommon at these
other schools, but at Washington University they were virtually unknown.
[23.] As one might expect, this law school
has had its share of students who transfer to another school. Often these
transfers occur because of tuition that can be saved by attending a state law
school or because of personal problems that require a student's presence
elsewhere. Sometimes, however, students who perform exceptionally well during
their first year of law school will try to "upgrade" their degree by
transferring to schools ranked at the very top of legal education.
Additionally, we have had students who spend a year at another school but
graduate with our degree, and we have had students who do graduate work
elsewhere. Over the years I have heard from many of these students. Everyone
agreed that their education at Washington University School of Law was superior
because of the mutual commitment of faculty and students to serious teaching
Knowledge of this tradition has also filtered through to pre-law advisors. In
the last 10 to 20 years, a handful of colleges have generated significant
numbers of students who have applied to and attended this law school. These
students do so because of the advice they receive from their respective pre-law
advisors. These pre-law advisors continue to provide such advice because of
direct contact we have with them and because of the positive feedback they get
from their students who attend Washington University School of Law. At the core
of the feedback they receive is a message of satisfaction with teaching within
and beyond the classroom.
[24.] The most profound curricular change has
been within the area of applied lawyering skills. In academic year 1972-73, the
Washington University School of Law had perhaps two courses that one might have
classified as courses that focused on applied lawyering skills. For academic
year 1997-98 (the first full year of the Anheuser-Busch Hall era), this law
school offers 22 applied lawyering skill courses. Further some have multiple
[25.] Mainly the pressures to forego our
commitment to teaching and accessibility resulted from increased class size.
From 1963 through 1968, the entering class averaged eighty people and the
graduating class averaged around 60. First-year classes were divided into two
sections of 40 each, and in most courses one teacher taught both sections. As
one of these teachers, I got to know every member of the entering class. The
enrollment of several upper level courses reached 80, but the average
enrollment of other courses was much less--around 20.
Commencing with the entering class of 1969, the enrollment began to increase.
Within a few years, our enrollment tripled. It has remained somewhere between
210 and 240 since then. We now have three freshman sections of equal size in
every course. In some courses, one teacher still teaches two sections. As one
would expect, the enrollment in elective courses has risen markedly. The
largest courses are fixed at 120. Some courses have enrollments of less than
20, but most are much higher than that.
When the entering class size was 80--and some teachers taught and knew
everyone within the first-year class--and when elective course enrollments
hovered around 20, the teaching environment within the classroom was intimate,
with accessibility its natural consequence. But three sections of 70 to 80
students a piece and elective courses of 50 to 120 students each seemed to
change that environment. It was impossible to know everyone and to know them
well. The numbers themselves made it impossible to involve everyone within the
classroom and to get to know them beyond the classroom. The easy choice would
have been to forego three freshman sections, multiple sections of large
enrollment elective courses, and our "open door" policy with respect to faculty
accessibility. We did not, however, do that. Instead, we renewed our commitment
to teaching and accessibility and did the best that we could given the changed
[26.] See BRUCE S. STUART & KIM D.
STUART, TOP LAW SCHOOLS--THE ULTIMATE GUIDE 307-11 (1990). In this book, the
authors evaluate the top 56 law schools in the United States. Their discussion
of each school contains comparative evaluations with respect to a number of
criteria. Two of these criteria are Quality of Teaching and Faculty
Accessibility. The Washington University School of Law was rated "A" and "A
plus" respectively. None of the other top law schools was rated as high in
[27.] These four teachers are full-time
faculty. Three carry the title of Visiting Assistant Professor of Legal
Writing. They are, however, not on the tenure track. They conduct a full year
course that is worth four credits. Its principal purpose is to develop a
student's ability to convert logical thoughts into clear, precise English. The
course is intensive, with classroom exercises supplemented by a sequence of
written projects that introduce students to research and the basic tools needed
to accomplish it. Throughout the course, students receive extensive
individualized feedback on their written work.
[28.] We have two kinds of seminars and
either satisfies our seminar writing requirement. One kind of seminar is
conventional. It has a limited enrollment and features both a classroom and
writing component. The writing component may include one or more short papers.
These papers are carefully critiqued by the teacher and, in light of such
critique, the papers are then revised. The other seminar is essentially a
one-on-one research and writing experience with a faculty member. The objective
is to prepare a paper that is of publishable quality. Once again, the student's
written work is carefully reviewed and then revised.
[29.] This conclusion is not based upon any
empirical study, but it is based upon my experience and judgment as well as the
judgment and experience of colleagues who have been teaching for many years.
Also, there is anecdotal evidence that experienced faculty members at other
schools share the same view.
[30.] The most distressing problem I
observe--much more now than 20 years ago--is a disregard for organization and
logical sequencing. More specifically, students have had difficulty developing
a paper that consistently advances its purpose. Much too often, I have had to
ask a student to explain how each section of his paper relates to the whole,
how each paragraph advances the objective of its section of the paper, and how
each sentence serves the purpose of its paragraph. This kind of instruction is
basic. Clear organization is essential to all writing within the practice of
law, yet it is something many students have not mastered when they enter law
school and unfortunately do not master by the time they graduate.
[32.] Certainly one can say this about
creativity. New ideas may just happen, but one can seldom rely upon them to be
there exactly when one wants them. Fresh ideas need to percolate and that takes
time and patience. One may have to work with a problem or puzzle again and
again before a viable solution begins to emerge. And then there will be even
more time--the time that it takes to test, critique, and shape this new idea or
[33.] Many students today elect to do all of
their research in front of a computer screen rather than wandering through the
library in search of the right book. Computers offer instantaneous access to
case reports, statutes, regulations, government documents, legal encyclopedias,
and many other things that aid research. At this time, however, they do not
cover everything. They do not include many important treatises and books that
provide summaries and overviews that are essential to efficient and productive
research. Consequently, a student or lawyer who does everything in front of a
computer screen may sometimes take more time--rather than less--to complete a
research project. Worst of all, it may yield a product that is skewed,
incomplete, or defective.
[34.] I am reminded of my first attempt to
collect all cases that have applied or rejected the Rule in Wild's Case
during the last 30 to 40 years. This rule, which is nearly 400 years old,
governs the interpretation many courts have given to devises of real property
that provide for a gift to a person (or a group of people) and such person's
children. A classic illustration would be from A to "B and her children." I
began my search with courts in a prominent state, but I was unsure of the key
phrase or word I should use to conduct my search. I did know this much: I could
not use to "B and her children." It would yield too little because "B" is a
name and it would change from case to case in which the Rule in Wild's Case
was discussed. So I tried simply "her children." This produced a thousand
cases. Then I added "rule or doctrine in Wild's Case." This refined my
research base to five cases. Two were relevant. But these two decisions were
not the only cases to apply the rule in this state. By pursuing other cases
referred to in these opinions, I soon discovered that a great many courts have
applied the same rule but they do not refer to it as the Rule in Wild's
Case. It either bears another name or no name at all. As a result, I
discovered that the rule did not carry the same label throughout the United
States. I wanted my collection to include all cases that applied this rule
without regard to how a court styled such rule. And I knew full well that if I
restricted my search to "Wild's Case" that I would be casting a net with
much too small a reach.
[35.] This is especially true for students
with certain kinds of majors and degrees. It is also true for students who
attend certain schools. Nevertheless, it is not true for students from all
schools. Indeed, there are universities and colleges that still include a
significant writing experience for all of their graduates. See infra
[36.] These schools will remain
nameless--after all, we depend upon them to send us students. But trust me they
exist and they include universities that are generally ranked in the top 25.
[37.] One should note that there are many
schools--especially liberal arts colleges--that still include substantial
writing components in nearly every course. Many of these schools require a
major writing project--a thesis--for graduation with honors, but some include
it as a basic requirement for graduation.
[38.] I have not documented this, but I am
certain that I could because there are specific schools who send us students
who typically do better work than students from other schools. If one were to
compare students with comparable aptitude test scores and undergraduate grade
point averages, the students from this select group of schools have done better
at the Washington University School of Law. And I am confident that these are
schools who are known for the amount of writing experience their students
[39.] Multiple choice tests take a
substantial amount of time to prepare and perfect, but they take virtually no
time to grade. Additionally, recycled multiple choice tests eliminate almost
completely any time commitment on the part of the teacher. Essay tests require
much more time, especially to grade them. Nevertheless, one ordinarily can
grade tests without written comment or extensive individualized feedback. A
worthwhile writing project, however, requires much more effort on behalf of the
teacher. To be sure, teachers must still arrive at a grade, but the essence of
their instruction lies in the feedback they give to each student--feedback that
may take the form of written or oral commentary or both. The best kind of
feedback is not an easy matter. It requires one to detect and carefully
identify problems within a paper and to offer suggestions on how to resolve or
overcome these problems. This necessitates meticulous reading and thoughtful
contemplation. Above all, it takes a lot of time.
[40.] I must make a confession. Twenty-five
years ago I began using multiple choice questions with respect to a portion of
my first-year property exam. Originally, I did this because in one year we went
from an entering class of under 120 to a class that exceeded 200. Although I
always begin grading a set of exams promptly, I have never been able to read
and grade an answer quickly. I read a paragraph from an answer and then I
ponder its meaning and value. Then I reread it. And then I anguish over the
credit I must award. And then I move on to the next paragraph. Consequently, I
was very concerned about the additional time it would take to grade nearly one
hundred more essay tests. A component that consisted of multiple choice seemed
to be the ideal solution. My reason was the same as the one I now criticize in
Lawyers, and especially law teachers, are skilled at intelligent,
sophisticated, and sometimes deceptive rationalization. If I am now asked to
justify my multiple choice component, I will offer other reasons for retaining
it for my property course. I might observe that it enables me to test basic
information. But I add that it enables me to test certain kinds of analytical
skills. In class I devote a lot of time to argumentation. Frequently I ask
students to set out each of the steps of a plaintiff's or defendant's argument.
I do this because argumentation is a significant part of what lawyers do. More
importantly, however, I have found that careful analyses of arguments present a
very useful vehicle for systematic identification of issues and their
interrelationships. See infra note 56. Unfortunately, the essay test
does not force all students to see connections between the issues they discuss.
All too often they approach a question as if each issue exists in a vacuum.
They do not see that a subsidiary issue only arises if a primary issue is
resolved in a particular way. In the classroom I can force people to see
interrelationships between issues. And on an examination, I have found that by
testing argumentation through multiple choice questions I can examine these
[41.] Unfortunately, I hear all too often
from alumni about these declining skills. Indeed, many practicing lawyers
complain about the inadequate writing skills of their young associates. One
should note that these complaints have not been restricted to lawyers who were
among the elite students of their respective generation.
[42.] For an excellent piece on the
importance of reading and writing and their relationship to thinking and to
what lawyers do, see Francis A. Allen, On the State of "The Word," 20
LAW QUADRANGLE NOTES (UNIVERSITY OF MICHIGAN LAW SCHOOL) 9 (1976).
[43.] Computers and word processing may
enable us to access and create information faster, but still the written word
is the medium for expression and understanding in our profession. Published
forms--and the ease with which we can access and use them to prepare
documents--may threaten the importance of the word. But every lawyer worth his
salt will create his own forms or at least carefully scrutinize and amend the
forms of others. Blind reliance on forms is unwise and can only lead to
trouble. (For a discussion of the problems blind reliance upon standard saving
clauses can generate with respect to the rule against perpetuities, see David
M. Becker, Estate Planning and the Reality of Perpetuities Problems Today:
Reliance Upon Statutory Reform and Saving Clauses Is Not Enough, 64 WASH.
U. L.Q. 287, 378-416 (1986)). Some may be tempted, but the conscientious lawyer
will resist such temptation. Instead, he will shape documents and the
provisions within them to meet the specific needs of his client.
[44.] Many have programs similar to ours.
See supra note 27. There are some variations among them, including the
title assigned to the teachers of legal writing. Tenure track appointments are,
however, rare among those hired to teach just legal writing. More than 20 years
ago, we tried to institute a one semester freshman course on legal writing that
was taught by regular tenure track members of our faculty. Because this kind of
course is very time intensive (see supra note 39), especially with
regard to grading and student contact, faculty members assigned to teach this
course soon burned out. Because no one was eager to replace them, this program
was abandoned within a short time.
[45.] Because planning and drafting courses
function best with limited enrollments, making them a requirement for legal
writing would necessitate an increase in the number of these kinds of courses.
This would, however, be a very wise addition to the curriculum. If one were to
examine law school curricula throughout the United States, one would observe
that inadequate attention is devoted to something most lawyers do or have done
at one time or another--plan and draft. Two, three or, perhaps, four courses
would probably be the norm in any given year. The focus of most
courses--beginning with the first year--is upon cases and problems that evolve
from disputes. The context is litigation, actual or potential. The facts or
framework in which these disputes arise is fixed. And the strategy for
negotiation and settlement or for litigation must be developed within such
Planning and drafting are different. In an important sense, they afford
greater freedom to shape the universe in which the transaction is to be
consummated. This makes the task more difficult. The lawyer's role can be
likened to an architect who must create a design that carries out a client's
objectives. One must first extract and probe these objectives, then test their
viability in light of numerous variables that the future may offer, and
then--when necessary--reshape these objectives to account for problems of
implementation. Finally one must develop a design that effectuates these
objectives and then cast such design in documents that precisely and
unambiguously achieve that design.
The task is creative and meticulous. Invariably, it cuts across many subject
areas of law. It requires legal knowledge, but it also requires experience in
life. One must know the law, but even more important one must know and
anticipate the situations in which such law becomes relevant. And when
necessary one must then be prepared to overcome or bypass principles that
obstruct implementation of a client's objectives. The analytical process
required for planning and drafting is not easy, and the skills that the process
requires cannot be learned simply through courses focused upon litigation and
the resolution of actual disputes.
[46.] Enrollment limitations upon seminars
that contain a substantial writing requirement are inevitable. The explanation
lies simply in the time it takes to teach each student. For one thing, there
should always be substantial student conference and contact time prior to
submission of any major paper. This might involve selection of a topic,
supervision of research, and review of outlines and preliminary drafts of the
paper itself. And then there is a review of the end product itself and the time
that it takes to grade it. See supra note 39. This should be followed by
more conferences, a revised paper, and finally a graded assessment of the
entire project. And this means even more time. One cannot accomplish this--and
carry on with other teaching, research, and committee responsibilities--without
[47.] When I began teaching at the Washington
University School of Law in 1963 the annual tuition was around $1000. By 1976,
tuition had increased to approximately $3000. Tuition for students entering in
the fall of 1997 is $21,675. As a result of debts incurred for college and law
school education, many students today graduate with a debt load that exceeds
$100,000. Tuition and debt load for students have risen annually, but
applications for law school have begun to decline substantially here as well as
elsewhere. Surely there are limits as to what we can ask students to invest in
their education. Surely there are limits as to what the market will bear.
Surely tuition will become an even more important factor in the competition for
the best students in a declining applicant pool.
[48.] Large firms have for years been highly
specialized. And as firms get larger and larger, the specialization seems to
intensify. Indeed, many firms insist that law student summer associates select
a specific area in which to work. Further, some insist that this selection must
be made at the end of their second year of school before their summer work
actually commences! One should note, however, that specialization is no longer
the sole province of the large firm. The 1997 edition of the Southwestern Bell
Yellow Pages covering greater St. Louis has 61 categories for its listing of
attorneys by area of practice. A quick reading of these advertisements
indicates that a substantial majority of those listed come from relatively
Careful examination of law school curricula reveals a similar phenomenon. As
an example, the 1997-98 curriculum of the Washington University School of Law
includes these specialized courses and seminars: international criminal law;
corporate and white collar crime; Japanese law; European community law;
immigration law; problems of the mentally ill; employment discrimination;
pensions and employee benefits; construction law; two intellectual property
courses; and four courses or seminars devoted to environmental law, including
one that concerns the legal aspects of waste management. (And we are not even
among the "large" law schools that can afford and have even larger curricula.)
Much of the impetus for specialization derives from individual faculty research
interests. In substantial measure, however, it reflects the business needs of
the professional marketplace and a desire by students to get one-up on their
competition through highly specialized training. For example, as a result of
strong student demand, this year we have hired three adjuncts to co-teach a new
course on sports and entertainment law planning and drafting.
[49.] Prospective students quickly learn
about the importance of specialization and the competitive edge such
specialization seems to offer in the marketplace for jobs. One need only
observe the attention national magazines give to specialized courses and
programs offered at schools across the country. Prospective students read these
articles--especially those that provide rankings--and their judgment about law
schools and legal education is heavily influenced by them. Further, although
lawyers sometimes gripe about the decline in writing skills among law school
graduates, they still insist that graduates must be prepared to contribute full
value when they begin work. And this invariably translates into an education
that has provided an adequate information base in the specialized area in which
such graduate is about to begin practice, often at the expense of writing or
[51.] The purest skill course that I have
seen in our curriculum has been Legal Process. This is a course that has
appeared at one time or another in nearly every law school curriculum, but it
has not appeared in ours for many years. (At my law school, it was entitled
Elements of the Law.) Legal Process is a course that disconnects itself from a
body of law as such and instead concentrates on teaching analytic skills within
the context of cases, statutes, and regulations. Student learning is entirely
experiential. It does not offer a body of information that must be mastered,
retained, and regurgitated on an examination. Test preparation may involve the
recreation of old analytic tasks or the creation of new ones. Conventional
course outlines do not help because the exam is likely to present problems
involving an area of law that was not previously studied. As a result, students
are frustrated. Without a comfortable body of information, they are unsure of
what they are learning. And when examination time arrives, they simply do not
know what to do. Most students, therefore, despise the course--though they may
come to appreciate it years later. Because this attitude inevitably reflects
itself in teacher evaluations, most teachers are reluctant to teach Legal
Process. Consequently, because there is little demand from either the consumer
or the provider, courses on Legal Process have become unwanted step-children
that have had difficult times making their way into current curricula.
[52.] To begin, one might examine the changes
that have occurred with respect to course books. Today, they bulk up much
larger than in the past and more often than not they resemble legal
encyclopedias instead of materials that use a subject area to teach critical
[53.] Karl Llewellyn made this observation
many times, but perhaps he said it best when he addressed the University of
Colorado Chapter of the Order of the Coif on July 10, 1942.
Let me say it again: the essence of our craftsmanship lies in skills, and in
wisdoms; in practical, effective, persuasive, inventive skills for getting
things done, any kind of thing in any field; in wisdom and judgment in
selecting the things to get done; in skills for moving men into desired action,
any kind of man, in any field; and then in skills for regularizing the
results, for building into controlled large-scale action such doing of things
and such moving of men. Our game is essentially the game of planning and
organizing management (not of running it), except that we concentrate on the
areas of conflict, tension, friction, trouble, doubt--and in those areas we
have the skills for working out results. We are the trouble-shooters. We find
the way out and set up the method of the way, and get men persuaded to accept
it, and persuaded to pick up the operation. That is the essence of our
KARL N. LLEWELLYN, JURISPRUDENCE: REALISM IN THEORY AND PRACTICE 318-19
[54.] This explains why lawyers have been so
successful in things other than the law itself--especially business. Many of
the leaders of industry throughout the United States have a J.D., and many of
legal education's most prominent graduates are applying their training to the
business world, not to the practice of law. This is true of other law schools
and it is certainly true for this law school. One need only look at the
membership of our National Council or at the list of recipients of our annual
Distinguished Alumni Awards to discover the incredible success our graduates
have had in business. Each of these people will have his or her own recipe for
success. To be sure, the reasons for success have something to do with the
special qualities of the people involved. Nevertheless, there is always a
common denominator among their respective explanations--their legal education.
What each of them retains and what each of them applies is not the information
they received from law school but the analytical skills that trained them to
solve problems, even those that transcended the context in which such skills
were first acquired.
[55.] One case that I have always enjoyed
teaching in my course on Future Interests and Estate Planning is Security
Trust Co. v. Irvine, 33 Del. Ch. 375, 93 A.2d 528 (1953). In its opinion,
the court viewed the primary issue to be whether a remainder interest created
by a residuary trust vested immediately at the testator's death or thereafter
at the death of the surviving life tenant. The court clearly misunderstood the
issue. The real question was whether the remainder interest was subject to an
absolute condition that required the remaindermen to survive the deaths of all
of the life tenants. Whether such condition functioned as a condition
precedent--and, therefore, deferred vesting until the death of the surviving
life tenant--or as a condition subsequent--and, therefore, vested the remainder
immediately upon the testator's death--was irrelevant. Under either
construction--contingent or vested subject to complete divestment--those
remaindermen who predeceased the death of the surviving life tenant would be
excluded from the group entitled to share the trust principal.
[56.] "What am I to learn from these case by
case illustrations of the issue? How can I systematically identify an
issue?" At first, my response to these repeated questions was the same as
others often give. I would carefully repeat the explanation for the case under
consideration. I would offer some general principles; for example, that an
issue involves a question that must be resolved in order to reach a result and,
further, the parties must disagree about the resolution of such question. But
mainly I would repeat the exercise again and again, hoping that students would
catch-on and that their questions about a process for identifying the issue
would ultimately disappear.
This made me very uncomfortable as a teacher. My job was to teach, or at least
offer some kind of meaningful guidance. Over the years I have attempted to do
better. For now, I am using reconstructed arguments to identify issues and
their interrelationships. More specifically, I have a student set out each of
the components of the plaintiff's argument. I ask, "What assertions as to fact
and law must a party make in order to justify the result they wish to reach?"
And then I will have this same student--or perhaps another--establish each of
the components of a defendant's argument. In elaborating the defendant's
argument--or the plaintiff's reply--I ask the student to identify carefully the
opponent's assertions about which there is agreement and disagreement. And then
I have students produce alternative arguments that begin with changes in
agreement or disagreement as to particular assertions and then move on to new
assertions that lead to a result still desired by the party on whose behalf the
argument is being made. Once this is accomplished, one can easily identify the
issues. Disagreement over the validity of an assertion yields an issue;
however, agreement does not. This methodology is, of course, an over
simplification. Further, it is somewhat misleading because one cannot
reconstruct arguments in a case without some understanding of the issues and
principles derived from such case. Nevertheless, for the time being it is the
best that I can do.
[57.] Indeed, something is always gained by
observing the experiential learning of others, especially if the observing
student follows carefully and thinks ahead as to what her own response might
be. The brightest students frequently may be several steps ahead of the
dialogue because their understanding would not have caused the analytic detours
that are needed to redirect the performing student back to basics.
Nevertheless, these very bright students will get a lot from the dialogue when
they pay serious attention. At the very least, they will reinforce their own
understanding. More than likely, however, by observing the efforts of others
they will view the problem from a teacher's perspective and thereby develop
useful insights into the analytical process being studied.
[58.] The problem method is an outstanding
vehicle for teaching analytic skills because it requires students to develop
and apply their understanding of law within a context that makes that
understanding necessary. The practice of law is about problem solving and the
problem method requires students to do exactly that. It enables one to see law
as something more than a set of sterile principles that seem to exist in a
vacuum. Rules affect the lives of real people in real situations, and the
problem method enables students to observe that and to simulate the context in
which these rules ultimately achieve significance. There are, however,
drawbacks in using the problem method, especially if one introduces it too
early and too frequently in law school. Because the focus and emphasis is upon
a problem and its solution, there is a natural tendency to assume mastery of
the underlying law and, therefore, to glide over the cases, statutes, and
regulations upon which the problem is founded. And this may assume much too
[59.] Few of us--if any--are purely socratic
teachers. Undoubtedly there are reasons why this is so. Several immediately
come to mind. To begin with, many people are uncomfortable with socratic
teaching, often because they are much better at doing something else.
Consequently they do that something else. Socratic teaching requires
exceptional patience and it consumes a lot of time. Some teachers do not have
the patience. Others do not want to spend the time, especially when it forces
one to exclude important information and thereby prevents adequate coverage of
a body of law. The tension and conflict between in-depth inquiry through the
use of interactive dialogue and substantive coverage is always present. As a
result, most teachers must make some kind of compromise. Consequently, they
invariably find it necessary to lecture--albeit straight or disguised.
Additionally, many teachers recognize that not everything a teacher may want to
address lends itself to a socratic inquiry that is accomplished with questions
and answers. Indeed, sometimes straight lecture is the only way to proceed.
Finally, even a committed and experienced socratic teacher recognizes that
there are times in which one must expand an explanation, affirm and punctuate
all or portions of a student's response, and provide introductions, overviews
and summaries to various materials. Without this, critical understanding may be
lost and important conceptual building blocks may be weakened--or worse never
[60.] Interaction with other students
provides the most frequent--if not the best--opportunity for this kind of
interactive education, and most of it occurs beyond the classroom. Lawyers
somehow never forget the hours spent with study groups during their first year
of law school. Most will recall hours spent on outlines devoted to rules,
cases, and statutes. Many recognize that these outlines were much more than a
streamlined regurgitation of straight forward information. Indeed, these
outlines required syntheses built after debate over holdings, dicta, fresh
hypotheticals, policy considerations, and critical commentaries. They recognize
that such outlines were constructed as a result of collective effort and
interaction. Most of all, they know that the real value did not lie in the
outline itself, but in the process by which it was produced--a process that
developed and honed the analytical skills that were the hallmark of their
[61.] The phrase "on their own" is critical.
As teachers, we cannot be there for students to help them solve problems when
they engage in the practice of law. Nor will there be others to do it
for them. Consequently, we must teach self-sufficiency. This does not
mean that we are training them for solitary problem solving. We are not
discouraging interactive problem solving with colleagues. Quite the contrary,
two minds are always better than one. At the very least, one must encourage
students to seek the counsel of others so that they may test tentative
analyses, strategies, and solutions.
[62.] This really needs no elaboration. All
one need do is examine the burgeoning regional and federal reporters or state
and federal statutes and the regulations that accompany these statutes.
[63.] This should need no elaboration. As an
example, all one needs to do is examine the body of law that governs our
environment. And if that is not enough, one can always refer to our tax law.
More specifically, one might illustrate with a tax creature born twenty years
ago and substantially redesigned ten years ago: the federal generation skipping
As I write this, I am reminded of a guest lecturer in my freshman torts class
at the University of Chicago Law School. He was Roscoe Pound, Professor and
Dean Emeritus of Harvard Law School--a person renowned in the law and in legal
education. The year was 1957 and Dean Pound was in his late 80's or early 90's.
Again and again he commented on how much the law of torts had grown in quantity
and complexity. He added that in his "law school days" students could name
every torts decision, and then he proceeded to do exactly that.
[64.] One need only examine the
transformation of casebooks during the last 30 years. Earlier, casebooks were
typically several hundred pages. They were designed to teach skills, and
published cases were selected on this basis. Often the rules and result of a
particular case rested upon a sound analysis and reflected a prevailing view
among courts. But often the case was selected because its analysis was flawed
and its result was nonsensical. The notes that followed each case elaborated
various problems and questions. They did not, however, attempt to summarize a
body of law. For example, casebooks on property provided basic information, but
they did not offer the full range of information one might need for the
practice of law or for success on a bar exam.
Casebooks today frequently exceed 1000 pages. They are longer but often they
contain fewer cases than the older books that were much shorter in length. The
difference lies in the information offered by casebooks of today. Invariably,
these casebooks provide extensive summaries of various bodies of law.
Consequently, at times they closely resemble legal encyclopedias instead of
vehicles for teaching and imparting analytic skills. Instead of poking
strategic holes in a body of law--matters that involve cases and principles
ideally suited to teaching skills--the authors of these casebooks use much
broader strokes to cover the subject matter. I suppose they reflect an author's
unwillingness to commit the book primarily to skills. In the end, when in
doubt, information is included and not excluded. And once included, there is
always the pressure to teach it. See infra notes 65-66. Invariably, the
user depends upon the author to be selective. If the author has selected
something for inclusion in the book, then the user is inclined to do the same
when it comes to making selections for teaching.
[65.] I recall a debate between two giants of
legal education and scholarship that occurred at the first convention of the
American Association of Law Schools that I attended nearly 35 years ago. The
subject of the panel discussion was teaching and first year property casebooks.
The discussion featured the casebook of one of these giants who carefully
explained its lengthy contents. He constantly justified the inclusion of
particular materials in terms of coverage and necessary information, but
occasionally he would discuss the importance of teaching skills. The other
giant--a teacher with a competing casebook at a competing school--explained
that to teach skills he often found himself spending a week or more on a single
case. He then asked for an explanation as to how this other giant could get
through his lengthy casebook in the number of hours allowed for his course.
Specifically, he asked: "In your casebook, please explain which materials are
used for skills, and therefore are taught socratically, and which are used
primarily for coverage of information?" The author replied: "I cover everything
and along the way I use the socratic method to teach skills, and I do this with
every case. The purpose of this casebook is to provide information along with
skills, and this can be accomplished by everyone." The questioner then
responded: "That is a pedagogical impossibility given the size of your book.
One cannot emphasize vast coverage and teach skills at the same time. If you
think otherwise, you deceive yourself and your students."
[66.] Certainly the computer has made it
possible to acquire huge amounts of diverse and complex information almost
instantaneously. Before the advent of the computer, often one would have had to
use many research tools and techniques to acquire this same information and it
would have taken many hours to accomplish this task. If you make something
available, then people will use it, especially if it offers the potential for
greater efficiency. Once used, they will not want to put that use to waste.
Information will be there for the asking. Once it is discovered, such
information will be taught and learned. The appeal to do so will be enormous,
especially because information is always the easy way out for students and
teachers. Because information can be mastered more readily than skills,
teachers will want to lecture to students who happily and passively absorb
[67.] Once again, in my judgment the ultimate
focus of legal education is upon problem solving skills that students can
exercise on their own. See supra notes 53-61 and accompanying text.
Indeed, with these skills as the ultimate goal, there is no better learning
experience than that in which a student actually does the task as expected--she
utilizes her acquired skills to solve a problem by and for herself.
[68.] For example, even with the answer to
her question, a student may still appear puzzled or even disturbed. If the
student's question is her real one, then the answer should yield a sense of
relief and perhaps accomplishment. If, however, there is more that underlies
her question, invariably this will be revealed by a facial expression that
reflects concern, maybe even anguish. Or perhaps such student will delay and
not want to leave. These are important signals that something more underlies
the original question.
[69.] One should observe that some of these
demands will be for things that have not traditionally fallen within the
province of faculty responsibilities. To be sure, in the past the ivory tower
of academia has shielded faculty from tasks that many have regarded as
unpleasant. This has been especially true of law school faculty who have acted
as if the business of legal education did not exist within a competitive world.
But times have changed. Law schools must compete for students, faculty,
employment opportunities for graduates, grants, and charitable contributions.
When I arrived in 1963, the Washington University School of Law did not
systematically recruit students or place them after graduation. And there was
little effort at alumni development and fund-raising. Now, however, we have
full time professionals that manage and staff offices of Admissions, Career
Services, and Alumni Development. Nevertheless, one thing seems very clear.
Despite the presence of these talented professionals, student recruitment, job
placement, and alumni development will not be successful without full
participation by faculty. At the very least, they are the linchpin in alumni
relations. And alumni are a key to fundraising, job placement, and often
student recruitment. In this respect, faculty members are a critical resource,
and the demand for this resource should become greater and greater.