Legal Education: Past, Present and Future

Martha Minow

April 5, 2010

“Plato tells us that, of all kind of knowledge, the knowledge of good laws may do most

for the learner. A deep study of the science of law, he adds, may do more than all other

writing to give soundness to our judgment and stability to the state.” So explained Roscoe

Pound in 1923, though I confess, I found this work reprinted in a 1999 2-volume

collection on The History of Legal Education in the United States: Commentaries and

Primary Sources.1 As I explore the past, present, and future of legal education— I will

consider what legal knowledge enables and shifting views about what a deep study of law

entails. But I can’t help reporting something I learned while researching that 2 volume

collection on the History of Legal Education in the United States.

I decided to explore the feature on Amazon—“customers who bought this item also

bought”—which apparently uses the same algorithm as the Facebook “friending”

program—and I found that people who bought Steve Sheppard’s 2 volumes of The

History of Legal Education in the United States: Commentaries and Primary Sources

also bought:

1
Roscoe Pound, the Work of the American Law School (1923), reprinted in Steve
Shepperd, II The History of Legal Education in the United States 678 (1999). Pound
continued, “If we are to do our duty by the common law in the 20th century, we must
make it a living system of doing justice for the society of today and tomorrow, as the
framers of our polity made of the traditional materials of their generation an instrument of
justice for that time and ours.” Id., at 687.

1
Amartya Sen’s The Idea of Justice—so far so good

Laura Kalman’s Yale Law School and the Sixties: Revolt and Reverberations (Studies in

Legal History) –ok, I think, that’s worth a look

But the purchases reported were books entitled:

Education Hell

Pedagogy of the Oppressed

How soccer explains the world

The making of rehabilitation:

Things invisible to see

And then, not a book at all—but an air mattress—I guess that’s what legal education’s

history inspired for one reader.

So, sit back and relax, and snooze if necessary!

But actually, this is not a moment to snooze. This is an incredibly exciting time in legal

education—a time of innovation, a time of renewal. This is a moment when many

countries are creating new law schools; some following a US model, which itself is much

influenced by Harvard; others, like Jindall in India, the Peking School of Transnational

Law in China, new law schools in Italy and Brazil, and a revamped program at McGill in

Montreal, Canada—take up the challenge of teaching lawyers who plan to operate

globally, across legal systems.

2
Of course, some of the themes and issues for legal education have persisted for more than

a century. William Twining wrote in 1994, in “all Western societies law school are

typically caught in a tug of war between three aspirations: to be accepted as full members

of the community of higher learning; to be relatively detached, but nonetheless engaged,

critics and censors of law in society; and to be the service-institutions for a profession

which is itself caught between noble ideals, lucrative service of powerful interests and

unromantic cleaning up of society’s messes.”2

I find such tensions healthy. They manifest the unique position of law schools as a

bridge between theory and practice, between law and justice, between ideals and needs.

We want purely academic inquiry, engaged critique of law operating in society, and

assistance to a profession that is itself caught between doing well and doing good, serving

the haves and the have-nots. These points of emphasis have undergone three phases, as I

will explore, and we are on the brink of a fourth. Now more than ever, law schools have

a chance to do something historic and influential, both in how we equip students and how

we orient the law school’s own resources and convening power.

Like law itself, law schools have the capacity to retain traditions and to enable change, to

protect expectations and to inspire reform. I will sketch three past periods of legal

2
William Twining, Blackstone’s Tower: The English Law School (1994).

3
education—with different permutations of these tensions—producing the context for this

moment and the opportunities of the future.

I. The Rise of Professionalism: Specialized Training, Civic Role, Ambivalent

relations to Formal Knowledge

Before the industrial revolution—indeed from medieval times until the mid 19th century,

lawyers learned their skills largely through apprenticeship and reading in informal

settings.

In the late 13th century in England special education began for those appearing before

“increasingly professional courts of England.”3 In 1292, Edward I issued a royal edict to

common bench judges to recruit ‘apt and eager’ students from each county to learn the

business of the courts by attending cases, participating in moot courts, and joining with

judges and lawyers to meet together in what became the Inns of Court. In Colonial

America and the early Republic, a more informal process of apprenticeships or clerking

emerged. John Jay and John Adams, for example, clerked with mentors. They and others

in the small elite group of individuals learned in the law played a disproportionate huge

civic role in this emerging democracy. Almost half the signers of the Declaration of

Independence were lawyers as were more than half of the members of the Constitutional

convention.4 Lawyers emerged as civic leaders even though the profession was

unpopular, associated as it was with debt collection, with England, and other instances of

3
Ralph Michael Stein, The Path of Legal Education from Edward I to Langdell: A
History of Insular Reaction, 57 Chicago-Kent L. Rev. 429 (1981).
4
Id., at 440 (citing Laurence Friedman).

4
seeming on the wrong side. The American Revolution propelled a nationalist dimension

in legal education here.

Meanwhile, the alternative route of university-based legal education began with a failed

proposal in the Connecticut Legislature. In what I promise will not be the last time

Harvard figures prominently in the story, Isaac Royall—a wealthy slaveholder here in

Massachusetts-- endowed a lectureship in 1777 at Harvard University for either medicine

or law. The university chose law as it already had something in medicine. That launched

university-based legal education in this country (though it took a few years for the

endowment to grow big enough—-an issue with which deans become intensely familiar).

In its early days, Harvard’s law program sought both to serve the nation and to prepare

students to serve private clients.5 When Joseph Story, Justice of the United States

Supreme Court, became a professor in 1829, he used moot courts and texts with

discussions as well as lectures. He explicitly organized the school around public duties

and service.6 The efforts to achieve a balance between public service and private

professional gain have persisted ever since.

5
See Paul D. Carrington, Law as “The Common Thoughts of Men:” The Law-Teaching
and Judging of Thomas McIntyre Colley, 49 Stan L. Rev. 495, 500 (1997) (quoting
Arthur E. Sutherland, the Law at Harvard (1967)). Sutherland actually wrote, “The
School has always thought of itself as serving the nation as well as training individuals
for a private calling, but conscious concentration on the first of these missions has much
increased, and rightly so, during the last third of the School’s existence.) Sutherland, at
358.
6
Paul Carrington, Law as “the Common Thoughts of Men:” The Law-Teaching and
Judging of Thomas McIntyre Colley, 49 Stan L. Rev. 495, 498, 500-501 (1997).

5
2) 1871-1935

In 1871, a published but unsigned note –probably written by Oliver Wendell Holmes, Jr.

-- described the condition of the Harvard Law School as “almost a disgrace to the

Commonwealth of Massachusetts,” because students could secure degrees with little

class attendance or work.7 Harvard’s President Charles Elliott selected Christopher

Columbus Langdell as a law professor in 1869 and Langdell, in turn, launched a

curricular change that transformed not only Harvard but legal education. He changed the

program into a three-year curriculum with a prescribed sequence of courses, assessed by

exams, ending casual attendance.8 Under Langdell’s leadership, Harvard also expected

students to have completed an undergraduate program before law school enrollment. The

school employed full-time law teachers rather than practitioners lecturing part-time.

Langdell rejected the financial model premised on low-academic standards and low

tuition. This seemed to ignore concerns of the market—but the ultimate results

demonstrated that a professional school elevating academic merit could not only survive,

but thrive.9 Other than criminal law and constitutional law, the program focused on

private law, including bills of exchange, quasi contracts, equity, advanced property, sales,

trusts, and partnership. The curriculum treated common law as generic rather than tied to

specific jurisdictions. Taken together, the changes transformed Harvard Law School

7
William C. Chase, The American Law School and the Rise of Administrative
Government 25-26 (1982).
8
Bob Gordon, The Geologic Strata of the Law School Curriculum, 60 Vanderbilt L. Rev.
339 (2007).
9
Bruce A. Kimball, The Inception of Modern Professional Education: C.C. Langdell,
1826-1906 345 (2009).

6
from a regional to a national institution,10 prefiguring a pressing issue today—should law

schools shift from national to global missions, focused not on the law of any one nation?

The most significant change that remains associated with Langdell’s name is the case

method pedagogy. Focused on appellate judicial opinions, the teaching questioned

students about the arguments within written judicial opinions and rather than demanding

that students memorize rules divorced from the context of their evolution.11 Students

and scholars would operate as empirical investigators, using the raw data of in appellate

opinions to identify principles at work.12 Exams did not ask for statements of rules but

instead for applications of principles to hypothetical cases.13 The method initially was

unpopular with students--attendance at Langdell’s session fell off to a handful of

students—and ridiculed by Oliver Wendell Holmes, Jr., then a distinguished lawyer.

Holmes compared Langdell’s claims to that of a biology teacher who “would give one of

his pupils a sea urchin and tell him to find all about it he could.”14 In contrast, in the

opening sentences in his famous 1881 lectures, The Common Law, Holmes emphasized

10
Paul D. Carrington, Law as “the Common Thoughts of Men:” The Law-Teaching and
Judging of Thomas McIntyre Colley, 49 Stan L. Rev. 495, 498 (1997).
11
Christopher Columbus Langdell, Selection of Cases on the Law of Contracts 10-11
(1871, reprinted 1914).
12
M.H. Hoeflich, Law and Geometry: Legal Science from Leibniz to Langdell (1986),
reprinted in Steve Shepperd, ed. II The History of Legal Education in the United States
589. 602 (1999).
13
Bruce A. Kimball, The Inception of Modern Professional Education: C.C. Langdell,
1826-1906155-165 (2009).
14
Paul D. Carrington, Law as “The Common Thoughts of Men:” The Law-Teaching and
Judging of Thomas McIntyre Colley, 49 Stan. L. Rev. 495, 519 (quoting Liva Baker, the
Justice From Beacon Hill, 208-9 (1991)).

7
the creative role and responsibility of judges who ensure that the life of law is not logic

but experience.15

Yet, by 1886, after briefly joining the HLS faculty and then accepting a post on the

Massachusetts Supreme Judicial Court, Holmes commended Langdell’s case method

(though not Langdell himself). The method stimulated discussion and debate. The buzz

around the courses attracted more students. Although initially rejecting student

preferences in favor of academic merit, Langdell’s method secured good jobs for

graduates, attracted more talented students, and then cultivated strong student support.16

Langdell served as dean for 25 years, spreading the case method, raising money for the

school, and advancing a conception of law as pure and divorced from politics.17

Although most of his contemporaries disagreed with this conception, his idea seemed to

capture the spirit of the times, embracing technical competence and making the legal

profession a separate and elite undertaking.18

Langdell’s case method endured but sprang free from his ideas of law as science. No

longer were opinions viewed as natural objects waiting to be systematized.19 The case

method persisted because it sharpened students’ analytic thinking and readiness for

15
See Martin P. Golding, Holmes’s Jurisprudence, 5 Soc,. Theory & Prac. 183, 201
(1979).
16
Kimball, supra, at 244, 264.
17
See Paul D. Carrington, William Gardiner Hammond and the Lieber Revival, 16
Cardozo L. Rev. 2135, 2149 (1994-5).
18
Id., at 2150.
19
Howard Schweber, Before Langdell: The Roots of American Legal Science 1998,
reprinted in Shepperd, supra, at 606, 631.

8
practice. 20 By 1895 when Langdell retired as dean, HLS was in much demand by

students. Other universities began to copy the case method.21

James Bar Ames, the first person hired to teach law who had never practiced it,

popularized the technique at Harvard after excelling as a student.22 He eventually

explained, “The teacher…secures from the student a decided opinion upon the problem”

after statement of the case. “Whatever it is, the instructor should be prepared to break him

down…force a reversal of his opinion, and then start in on him again and break him

down a second time, so that he is forced to admit that his first opinion is right.”

Classroom examination and cross examination conveyed “the power of legal reasoning,”

rather than law as a science.23

Successful Boston attorney and Harvard Law graduate, John Chipman Gray, used the

case method as a Harvard Law School teacher to "provide the students with an

experience which would give them “the power of solving legal problems” with best

models, from prior cases. The case method developed mental muscles in relation to

detailed disputes24 in a complex modern world rather than pursuing mastery of a fixed

body of knowledge.25

20
Chase, supra, at 30-34.
21
Kimball, supra, at 264.
22
Id., at 171-2.
23
Chase, supra, at 35-36.
24
Gordon, supra, at 342.
25
Chase, supra, at 35.

9
Rival law schools emphasized moral philosophy or political economy; the University of

Chicago staked out social scientific study of law. But even there, the case method spread

and became dominant, supporting law as a professional specialty and autonomous field.26

The success of Harvard Law graduates in practice provided evidence of the success of the

method, even as the law schools pursued independence from and a critical stance toward

the bar, especially given exposes of serious judicial corruption. The case method endured

despite the abandonment of Langdell’s idea of legal science and despite competing

multidisciplinary approaches to legal study.

What, then, emerged as the relationship between technical professionalism and the

democratic and civic aspirations of American law? Some charge Langdell with being

indifferent or even hostile to these public values.27 He also opposed admission of

women, giving rise to sharp critiques as decades went by. But the biggest challenges to

Langdell’s focus on a general common law came from the rise of legislation, regulation,

and administration, largely missing from the classic case method,28 and the scholarly

movement known as legal realism, critiquing the idea of “general law” separate from

those people and interests producing it.29

26
Gordon, supra, at 346-9.
27
Paul D. Carrington, Law as “the Common Thoughts of Men:” The Law-Teaching and
Judging of Thomas McIntyre Colley, 49 Stan. L. Rev. 495, 519 (1997).
28
Chase, supra, at 14.
29
Felix Frankfurter, The Law and the Law Schools, 1 American Bar Association Journal
532 (1915), reprinted in Shepperd, at 673-677.

10
A year after joining the Harvard Law faculty where he had been a star student, Felix

Frankfurter warned in 1915 of a dysfunctional disconnection between legal education and

practice. Law school should not just train people to earn a living as lawyers but also

develop the law to serve humanity. Frankfurter wrote: “We fail in our important office if

[practitioners] do not feel that society has breathed into law the breath of life and made it

a living, serving soul. We must show them the law as an instrument and not an end of

organized humanity. We make of them clever pleaders but not lawyers if they fail to

catch the glorious vision of the law, not as a harsh Procrustean bed into which all persons

and all societies must inexorably be fitted, but as a vital agency for human betterment.” 30

Roscoe Pound struck the same notes. In 1906, as dean of the University of Nebraska

Law School, Pound challenged the newly formed American Bar Association to deal with

the many ‘causes of popular dissatisfaction” with the law. Then as dean of Harvard

between 1916 and 1936, Pound pushed for reforms of laws, courts, and lawyers. Pound

stressed the need to adjust principles and doctrine to human conditions and to put

“the human factor in the central place”.31

A strong form of this public mission of law schools emerged at the University of

Wisconsin where the whole university committed to deploy expert knowledge and

training to advance human welfare of the people—and law professors regularly worked to

30
Id.
31
Felix Frankfurter, The Law and the Law Schools, 1 American Bar Association Journal
532 (1915), reprinted in Shepperd, supra, at 673, 676 (quoting Roscoe Pound).

11
develop regulations and serve on boards and commissions.32 Legal education continued

through World War I and the Depression to cultivate reasoning and questioning, with

some focus on civic good, and the case method proved a durable method for engaging

student attention and educating a large number of students at relatively little expense.

3)1935-2003

In its third phase, law schools added policy analysis and courses relevant to the

administrative state. Law professors helped to invent and even staff the New Deal and

post-New Deal agencies. Law schools kept the common law core remained in the first

year curriculum and implicitly established the baseline of contractual and property rights;

upper-level courses introduced legislation and regulation. Electives mirrored the issues of

each succeeding decade; we added labor law in the 1940s and 50s; poverty law, civil

rights, and urban law, in the 1960s and 70s, and environmental law in the 1970s and

1980s, internet, entertainment law, and human rights law, meeting student interests and

connected law schools to current affairs.

My colleague Lani Guinier and her co-author Susan Sturm have argued that the use of

electives risk marginalizing topics and concerns without altering the fundamental focus

and messages of legal education.33 They argue that case method imprinted an adversarial

32
Paul D. Carrington and Erika King, Law and the Wisconsin Idea, 47 J. Legal Educ.
297, 324-6 (1997).
33
Susan Sturm and Lani Guinier, The Law School Matrix: Reforming Legal Education in
a Culture of Competition and Conformity, 60 Vand. L. Rev. 515, 542 (2007).

12
framework throughout legal education, stimulating competition and argumentation, rather

than problem-solving or collaboration. Some note that the profession itself was tending

toward unethical, unhappy, and unhealthy practices while urging individuals to be

ethical.34 The political interests of faculty and students stimulated debates over the

relative importance of private and public interests and the slow pace of integration for

women and racial minorities in law schools and the legal profession. The work of legal

scholars reflected these debates. At Harvard, Richard Stewart argued during the 1970s

for interest group representation in administrative process.35

The predominantly white and male character of legal education began to change. HLS

had rejected a woman applicant just as Langdell took charge in 1871 even though

Oberlin, Michigan, and other schools had pursued co-education –where in fact women

surpassed men in academic accomplishment.36 Langdell said in 1899 “the law is entirely

unfit for the feminine mind—more so than any other subject.”37 38

Finally admitting

women in the 1950s, Harvard joined other law schools as women students headed to law

schools in increasing numbers during the 1970s and 1980s. Although a few African-

Americans and individuals from outside the United States had attended Harvard Law

School before this time, diversity on these and other dimensions notably increased. With

more people of color and women within law schools and the profession, schools reacted

34
See Patrick J. Schiltz, On Being a Happy, healthy, and Ethical member of an Unhappy,
Unhealthy, and Unethical Profession, 52 Vand. L. Rev. 271 (1999).
35
Chase, supra, at 149.
36
Kimball, supra, at 290-1.
37
Id., at 290 (quoting Langdell).
38
One historian attributes this attitude to the competitive style cultivated at the school—
in contrast to the qualities of gentleness, agreeableness and empathy associated with
images of women by Brahmin gentry. Id., at 294.

13
with more electives. But it did not alter the fundamental frame of the curriculum nor did

it tackle work-family issues for legal professionals.

Ethical crises—from Watergate to Enron-- triggered new courses and requirements-- but

the law schools tend to emphasize individual ethical development and reflection

overshadowed inquiries into structures, incentives, and organizational dimensions. A few

leading researchers—notably David Wilkins at Harvard, Bob Gordon at Yale, David

Luban and Mitt Regan at Georgetown, —enlarged inquiry into the history and incentives

of the legal profession within changing economic contexts, and made this a subject of

study for law students. While legal education has always immersed students in the task

of recognizing and managing competing values—such as freedom and security, fairness

and efficiency, predictable treatment of similar situations and individualized justice—in

recent decades, law schools have pushed students to articulate competing values and

analyze institutional and procedural avenues for resolving or managing conflicts. As

practicing lawyers increasingly translate principle into the design and management of

profit-making, nonprofit, and governmental institutions and devise practices for

individuals and for groups, locally, nationally, and internationally, law schools have

gradually offered courses and clinics related to this work.

The past 70 years also represents a time when disciplines such as economics, decision

analysis, psychology, organizational behavior, and history have become intertwined with

legal scholarship and what it means to “think like a lawyer.” The place of other

14
disciplines in legal education may have grown, but there is no systematic conception of

the storehouse of knowledge every lawyers should obtain.

The largest change in law schools during the past 30 years is the rise of clinical

education. Bridging theory and practice, making parts of legal education closer to a

teaching hospital, clinics also elevated attention to poverty, racial and gender

discrimination, and access to justice. It is expensive in both respects; it represents a

public service with only limited access to outside funding and it involves much higher

devotion of instructional resources than does the conventional classroom. At Harvard, we

understand clinical education as a central part of our justice mission, as well as a teaching

tool. Initially focused on representing individuals in local courts and agencies, clinics

over time have branched out. Now they encompass federal and international litigation,

legislative development, negotiation and mediation, transactions and entrepreneurship.

And the investment of resources, and the time of staff attorneys, faculty, and students in

clinics affirms and amplifies the justice mission of law schools. More than 2/3rds of our

students engage in clinical work.

Harvard followed University of Pennsylvania and University of Hawai’i as one of the

first law schools to mandate pro bono service by law students. Our students routinely

exceed the requirement in number of hours served and both the requirement and the

student response underscore the service dimension of legal education while bridging

theory and practice.

15
Nonetheless, the dominant tilt of legal education has preserved the case method, relying

on appellate decisions and adversarial arguments in class, and keeping litigation central,

even with the increasing presence of insights from economics, political science,

psychology and others fields. By the turn of the millennium, many law schools debated

how best to embrace alternative dispute resolution, the administrative state and policy-

making, and increasing globalization of law practice; we debate how to promote

interdisciplinary practice and research without losing all ties to the profession and

practice.

4) 2003-present and beyond

For decades and decades, legal education itself didn't seem broken. As largely tuition-

supported schools, with student loans repaid by salaries, and cross-subsidy, philanthropy,

and endowment returns supporting public service opportunities sand careers. Even before

the recent economic downtown, law schools seemed to be missing opportunities for

change, neglecting to pursue ways that schools themselves and lawyers as a profession

could help tackle large issues of poverty, defects in corporate governance, failures in

criminal justice, challenges of environmental protection, log-jams in intellectual property.

But legal education –except for clinical work--seemed like the traditional first two years

of medical school—lots of knowledge, little direct work in the field. Schools across the

country incorporated policy studies, social science and the administrative state, but as

add-ons, not altering the basic map of the legal world which still started with common

16
law, focused on courts, and obscured the multiple pathways through law school and into

careers that students actually want to pursue.

We come to the present--and back to the future. And the future has already started. Once

more, with only slight embarrassment, we need to start with Harvard—because we were

the first to launch a major curricular reform. In 2003, Dean Elena Kagan announced a

curricular reform initiative for Harvard Law School, and she asked a colleague named –

that would be me! -- to lead the process.39

I confess: I extracted two promises from then-Dean Kagan regarding our reform process,

because I had heard and in fact witnessed how legal education is littered with the

carcasses of failed curricular reforms.40

Promise one: we would produce no single “report” to be voted up or down by the

faculty—because that would simply play to a law faculty’s gifts for turning any written

text into target practice in an adversarial framework. Second promise: Dean Kagan

would make curricular reform one of her top priorities, come to every meeting, and

authorize lots and lots of meetings.

39
Then Dean of Vanderbilt law School, Ed Rubin reflected later, “the basic educational
approach that law schools use remains essentially unchanged from the one that C.C.
Langdell introduced at Harvard in the years following the civil War,” and the continuity
reflected an “ain’t broke don’t fix it rationale.” Edward Rubin, What’s Wrong with
Langdell’s Method, and What to Do About It, 60 Vand L.Rev. 609, 611 ((2007).
40
Gordon, supra, at 349-64.

17
So that’s what ensued. We pursued focus groups with practitioners, meetings with faculty

and students, investigations of curricular reforms and reform processes at medical,

business and policy schools, inventory of reforms at other law schools, and more

meetings within the school.

We contrasted the lack of change in legal education for more than 100 years with changes

in medical, business, engineering, and policy education. We learned especially from

transformations in medical education, led by Harvard Medical School, which radically

reduced time devoted to lectures in favor of hands-on problem-solving, decisionmaking,

and engagement of students in collaborations, taking responsibility for their own

learning.41 Faculty and practitioners alike urged us to explore collaboration across other

disciplines, including economics, history, psychology, game theory, and philosophy both

to understand law from the outside and to improve lawyers’ advice and solutions.

Our process bore fruit. First, in 2005, the faculty approved reform of the upper level

curriculum by revising the assumption that every student should pursue largely the same

program. For years, not only the first year but much of the upper year curriculum was

required; the last major reform shifted second and third year required courses to the status

of “highly recommended.” And yet we had in the meantime developed courses,

seminars, clinics and other opportunities reflecting the wide range of student interests,

faculty expertise, and social need. Should we eliminate all requirements, and treat the

curriculum as a cafeteria, leaving the organization of student studies after the first year to

41
Compare David Garvin, Making the Case: Professional Education for the World of
Practice, Harv. Mag,. Sept-Oct. 2003, p. 58.

18
students? In 2005, we concluded students deserve more input and guidance, but we

rejected “majors” as too confining, or worse, at risk of inducing students to cluster around

what seems most likely to keep open their options or secure the highest paying jobs rather

than what advances their interests or social needs.

So the faculty committed to work on guiding students toward concentrated and focused

studies, with opportunities for progression through advanced work even more to see what

becoming expert involves than to certify new-found expertise. Faculty, students, and

practitioners alike emphasized the need for broad education and nimbleness given the

increasing pace of changes in societies, economies, and technologies; so we committed to

develop distinctive Programs of Study, organizing classroom, clinical, research, and work

opportunities to help students pursue greater progression and depth before graduation.

Each program also offers links to courses and opportunities in other schools and

disciplines across this and other universities. Our five Initial Programs of Study have

been: Law and Government; Law and Business; Law, Science and Technology; Law and

the International Sphere; and Law and Social Change. And this spring we’ve added a

sixth: Criminal Law and Justice. Other cross-cutting themes such as law and history and

law and economics offer frameworks for students drawn to methodological focus and

some with plans to become law teachers. The programs of study include recommended

courses, clinics, and summer work; opportunities for research roles with faculty; and in

some instances, social groups, virtual and face-to-face; this year, the Law and Social

Change program of study held a retreat, and developed ideas for social and intellectual

19
connections among students and faculty, such as a study section of courses like Tax for

students drawn to law and social change.

Popular workshop courses combine seminar work with engagement with outside scholars

who deliver works-in-progress and invigorate law and business, public law, and

international and comparative law. We soon will launch a new workshop combining law

and social change and government.

In 2006, then, the faculty unanimously embraced a new first-year curriculum designed to

provide a foundation to enable any student who wishes to pursue an advanced Program of

Study. The reform of the first year curriculum greater attention to statutes and

regulations;

• introduction to the institutions and processes of public law;

• opportunities for students to address alone and in teams complex, fact-intensive
problems as they arise in the world (rather than digested into legal doctrines in
appellate opinions) and to generate and evaluate solutions through private
ordering, regulation, litigation and other strategies;
• more sustained occasions to reflect on the entire enterprise of law and legal
studies, the assumptions and methods of contemporary U.S. law and the
perspectives provided by other disciplines, and to develop a common fund of
ideas and approaches relevant to designing effective and just laws and institutions.

To pursue these goals, the law school added three new course requirements to the first-

year curriculum:

1. A course focusing on legislation and regulation;

2. A course in international or comparative law;
3. A hands-on course in Problems-solving.

By 2010, the legislation/regulation course has become for many students the pivotal

course, orienting them not only to the regulatory state but to legal thinking in general;

20
Professors John Manning and Matthew Stephenson’s version of the course forms the

basis of a new book, to be published next month. The international and comparative law

courses de-center the United States, locating our cultures—and extending a level of

familiarity with the building blocks of law here and elsewhere.

The problem-solving course is the one drawing greatest interest among practicing

lawyers, government officials, and others out there in the world. At its heart, this course

places students in the role of a problem-solver with a client who has needs and

interests—and problems that do not come pre-labeled, “Hi, I’m a tort.”

The course bridges theory and practice by presenting students with messy, concrete

problems—without defining them in advance in terms of any particular legal doctrine or

category nor in terms of any particular strategy, whether legal, business, public relations

or other potential method for resolving the issue. The course also involves teamwork and

integration of legal knowledge with practical judgment as students are asked to help

clients attain their goals consistent with legal and ethical considerations. The Problem-

Solving Workshop takes advantage of the January term and allows students and faculty

flexibility in using each day to simulate client-meetings, to produce written documents,

and to present proposals to outside lawyers as well as classmates. The seven faculty

members teaching the course meet intensively to share pedagogical and substantive

ideas—exhibiting team-work that is echoed inside each section itself.

This course cannot proceed without new materials and new pedagogy. We chose to

locate it in the winter term—immersing students in the problem-based experience without

distractions of other courses but with one semester of courses under their belts. The

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faculty develops new teaching materials, oriented not around the reports of appellate

decision but instead using complicated situations involving facts and diverse bodies of

law and demanding both creativity and analytic rigor in generating and assessing

solutions. Developed and pilot-tested for two years with upper level students, Harvard

rolled out the Problem-solving course was rolled out for all first year students in January

2010. Students work in teams, and we experimented this year—some sections kept the

same teams for 3 weeks, some rotated; some gave general feedback, some used “speed-

dating” style one-on-one feedback about the team experience. Teamwork, engagement

with practitioners, doing assignments in real-time—like write a press release this

afternoon; produce a two-page memo in the next three hours—have made the course

rewarding and engaging for students, faculty, and observers.

Announcing these reforms in 2006, Dean Elena Kagan wasn’t shy. She said, "This marks

a major step forward in our efforts to develop a law school curriculum for the 21st

century. Over 100 years ago, Harvard Law School invented the basic law school

curriculum, and we are now making the most significant revisions to it since that time….

I am confident will give our students the best possible training for the leadership

positions they will soon occupy."

As chair of the process, I said in 2006: "We believe these changes will better prepare our

students to think about and practice in a legal world in which regulations and statutes

play an equal or more important role in the creation and elaboration of law as do court

decisions; in which transactions and interactions among parties are increasingly global in

nature; and in which economic, cultural and technological changes call upon the best

22
lawyers to become skilled in system design, problem solving and creative approaches to

issues."

In the spirit of a kind of zero-based budgeting we used—forcing each element of the pre-

existing curriculum to justify itself –the reform also condensed traditional first-year

curriculum (contracts, torts, civil procedure, criminal law, and property) and by revising

the school’s calendar to create a new January term for first-year students, devoted

exclusively to the Problems and Theories class. And both the first year reforms and

Programs of Study are designed to propel ongoing review, reform, and assessment.

We undertook these changes before the financial crisis that started in 2007 and in whose

wake we all live. The collapse of the world-wide housing bubble, cascading into

securities, banks, stock markets, credit rating agencies, and law firms, affecting local

governments, nonprofits, and generating new business in bankruptcy, refinancing and

restructuring, the financial dislocation is, we hope, temporary. The developments

accentuate the importance of the independence of lawyers and professional standards that

operate apart from the immediate interests of clients; they also underscore the importance

of lawyers of long-term and systemic thinking about risk, regulation, and institutional

design. Colleagues Elizabeth Warren, Lucien Bebchuk, Howell Jackson and others are

hard at work on these issues. Meanwhile, the financial challenges may be accelerating

trends in the legal profession itself that are already underway, such as experiments in

different forms of organizing, managing, and paying for legal work – including

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outsourcing, creations of global mega-firms, and collaborations across different groups of

lawyers.

As Dean, I have charged my colleague David Wilkins with undertaking a multi-stage

initiative on changes in legal education and the profession; we will co-lead with New

York Law School a conference in October and have a global meeting in the works for

2011. David’s center, the Program on the Legal Profession, is the only academic

enterprise in the country devoted to the empirical study of legal practice and delivery of

professional services, including structural changes on how legal work is organized and

compensated, as well as detailed study of the lives of lawyers, including race, ethnicity

and gender within the profession. Besides offering executive education and engaging in

ongoing research, this work contributes to the law school’s own admissions and career

placement practices and ongoing curricular reform.

And I have asked my colleague John Palfrey, scholar and master of new technologies,

leader of the library, to help the faculty pursue the possibilities of new and old

technologies, library resources, and inventive pedagogies as we teach students known as

“the millenials” and their successors. Already underway are inventive experiments and

serious research about the effect of technologies on student learning.

Two years after Harvard started our reform, The Carnegie Foundation for the

Advancement of Teaching launched an inquiry into legal education, echoing its own

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earlier work published in 1914. The Carnegie Report, issued in January 2007,42

concluded that:

(1) The law school curriculum should integrate doctrine, skills, and professional

identity—social-emotional and role-based understandings including ethical concerns;

(2) New and varied teaching techniques should be added to the usual combination

lecture/Socratic method and the Langdellian reliance on learning dissecting appellate

opinions in order to cultivate this kind of integration;

(3) Law schools should devise new ways to assess student learning and provide feedback.

It is striking how much this report echoed many elements of the Carnegie report

published in 1914 in which Josef Redlich criticized the case method, called for improved

education for practice and for public dimensions.43 Once again, the tensions between

theory and practice, doing well and doing good surface in legal education and its critics.

The Carnegie report is perhaps most notable in emphasizing the importance of the social

and moral development that law schools always shape and pushing for more explicit

attention to the development of integrity and “professionalism.” Integrity, independence,

in matters as small as returning phone calls and emails and matters as large as taking

42
Carnegie Foundation for the Advancement of Teaching, Educating Lawyers:
Preparation for the Profession of Law (2007). See also James R Maxeiner, Educating
Lawyers Now and Then: An Essay Comparing the 2007 and 1914 Carnegie Foundation
Reports on Legal Education 2007.
43
Josef Redlich, The Common Law and the Case Method in American University Law
Schools (1914).

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responsibility, digging deeply into what lies behind an apparent client request or

opportunity. Attorney Wayne Hyatt wrote recently that what is missing in legal

education is the emphasis on professionalism and integrity, learning to read and

understand people, to solve not just spot problems, and to understand multidisciplinary

nature of most transactions.44

This contemporary phase of reform seems to be picking up more speed and producing

more action than mere hand-wringing reports. One sign is the creation of the new law

school at UC-Irvine, with founding Dean Erwin Chemerinsky. The school claims it

wants its graduates to leave school no only to thinking like a lawyer but ready actually to

practice law.” Apprenticeship and problem-solving are key concepts guiding this school,

too.

Four features of the current moment suggest that legal education could be on the brink of

the most dramatic changes in 140 years:

1) the first comes from still rudimentary but quickly improving knowledge of adult

learning styles, the impact of different pedagogies, and the relationships between and

among cognitive, social, and emotional development;

44
Wayne Hyatt, A Lawyer’s lament: Law Schools and the Profession of Law, 60
Vanderbilt L Rev 385 (2007).

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2) the second is new technologies, including digital texts, the internet, and video-

conferencing, enabling new pedagogies but also shaping the brains and expectations of

successive generations of students;

3) the third is the undeniably global context of law practice, law, economies, and

competition among law schools;45

And 4th) is the Value proposition confronting all elite higher education: are the escalating

tuitions justified by life-earnings and if not, how other than through loans, repaid by the

practicing alumna of the school, can legal education be financed?

William Henderson, says: “’Law Schools need to earn their hefty tuition price tags by

offering teaching methods that are proven to increase students’ human capital and

employability.’” 46 Especially a challenge, given salaries for public service/government

jobs, smaller firms----will the cross-subsidy model work? This pertains to the

pricing/financing of legal education which replies so fundamentally on tuition for one or

two degree programs. Compare this with business schools--where the MBA is just one

among programs, including executive education and publication sales. The mix of

activities is relevant not only to sources of funds but also to the location of professional

training within the larger duties and opportunities of the professions. So public health

schools engage in substantial amounts of sponsored research and seek to advance public

health and knowledge about health. Some journalism schools—which are exploring

45
Mark West, Making Lawyers (and Gangsters) in Japan, 60 Vand. L. Rev. 439 (2007).
46
Andrew P. Morriss and William D. Henderson, The New Math of Legal Education,
National Jurist, at 39 July 2008), available at
www.abanet.org/yld/tyl/july08/morriss.html.

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ways that their university-based programs to fill the growing deficit in local news

reporting –while offering students practical experiences.

As a sheer predictive matter, law schools are likely to experiment with different kinds of

programs and may over time specialize and diverge with more variety in what they aim to

do. Some may pursue on-line instruction, 2-year degrees, or certification in particular

fields; and others may emphasize interdisciplinary programs and build competence in

another professional or disciplinary field for each student.

At stake are interests not just of students and clients 47 but also the public. Who has

access to enter the legal profession, how much the profession and the law schools think

about interests other than those of paying clients, and whether students with desires to do

good as well as do well perceive opportunities to do so, will be shaped by the terms of

financial aid, loan forgiveness, and other funding to cover the costs of legal education.

Even more striking than the persistence of the case method is the continuous struggles in

legal education over how to balance theory and practice, preparation of lawyers who

serve paying clients versus those who cannot pay, critique of law and the profession

versus assistance to it and its insularity. The influence of the business model—who pays

the bills—cannot be dismissed. Yet Langdell is highly relevant now not for his invention

of the case method, but for his willingness to rethink the business model of legal

education. He rejected the easy and old business model in favor of independent

47
Deborah Rhode, In the Interests of Justice: Reforming the Legal Profession 188 (2000).

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professional standards. For Langdell, that meant establishing high academic standards

for admission, examinations, and graduation—with higher tuition. For us, it could mean

strengthening and deepening the public service mission of the law school—as a place that

tackles social and economic problems, provides direct legal services, convenes stake-

holders to frame public agendas—and both deploys student talent and enhances students’

education in the process. We could take up problem-solving on a big scale: finding ways

that faculty, students, and staff can tackle ongoing and big problems, like corporate

governance, governance of the internet, structure of and access to legal services, energy

and environment regulation, strengthening the rule of law in fragile societies—not only

as individuals but in concert, so that the school itself addresses the twin and at times in

tension goals of serving individuals and service the public. Especially for a place as

visible, influential, and relatively rich as Harvard, taking the risk to serve others is the

right thing to do and may just also be the way to diversify sources of financial support.

Movement in this direction is especially compelling now. I believe that this time will be

known as an inflection point in world history because of huge revolutions taking off in

the world—changes that make this an electrifying time to be in the legal profession. At

least five consequential world-wide shifts now span technologies, societies, economies,

and politics:

1. the information technology revolution;

2. the biomedical revolution: including genetic breakthroughs, biotechnology and

nanotechnology;

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 3. globalization—integrating the economies, legal and professional services,

biological and computer viruses, cultural trends through world-wide networks of

exchange;

4. resource scarcity and global climate change; and

5. mass population growth and migrations of people, due to economic, political, and

environmental changes.

These shifts each day generate fundamental questions whose answers will alter the shape

of the human experience.

I am certain that lawyers will play indispensible roles in tackling the issues raised by

these developments and harnessing opportunities to secure orderly change and enhance

human welfare. Lawyers are already working hard to address complex questions related

to all of these shifts:

• Who owns a cell line? A double-click icon? A digitized form contract term?;

• When should domestic, regional, or international standards govern antitrust,

privacy, carbon trades, disclosure of food additives, cybersecurity?;

• How can the information revolution lessen rather than exacerbate the gap between

the haves and the have-nots—when, despite extraordinary world wealth, 2.8

billion people live on less than $2 a day?;

• What mechanism should be put in place to monitor the auditor who vouches for

clean energy in carbon trading markets? What if any rules should restrict

privatizing water or other basic resources?

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 • Are there common institutions and values can guide encounters and collisions

between people of different religions and traditions? What rules about borders and

citizenship promote fairness and free movement without overburdening any

particular country?

At HLS, the Berkman Center is leading vital research and initiatives on the information

revolution. The Petrie-Flom Center is stepping up to the challenges of biomedical

transformations with work not only on health care reform but also patent reform,

assessment of medical tourism, and more. On economic inequality, environmental

challenges, human migration and conflict, we have ambitious initiatives underway. And

we are poised to use global communications and partnerships to reinvent law teaching,

research, and collaborations.

In these contexts and others, advanced students can do advanced work—in conjunction

with faculty and clinics or in parallel and mutually supporting ways. How can law

schools make more opportunities for this kind of work and actually promote new forms

of collaboration? Projects in which students and faculty organize wicki-based

international discussions and co-production of contract terms, treaty terms, and other

legal materials come to mind. So do efforts to convene public and private actors around

issues – like internet governance, human rights and corporate behavior, environmental

and energy planning—where traditional legal tools of litigation and legislation can at best

offer partial solutions in concert with private enterprise, agreements, and collaborations.

A law school must at a minimum equip students to identify such issues and assemble a

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wide range of tools and strategies to tackle them. I think we should also as its own

presence in the world contribute to improving the law, regulatory regimes, access to

justice, here and around the world.

Lawyers have building blocks to help frame the debates and generate alternative

solutions. Through contract, tort, adversarial and collaborative procedures, lawyers use

analytic arguments to connect moral and institutional concerns and to translate interests

into deals and decisions. Oliver Wendell Holmes, Jr., said, “The artist sees the lines of

growth in a tree, the business man an opportunity in a muddle, the lawyer a principle in a

lot of dramatic detail.”48 Lawyers are skilled in recognizing and translating complex and

abstract human values and goals into institutions and practices. We find ways to

accommodate competing interests and to resolve conflicts. We repair the boat of the law

at sea and even find ways to design a new ship while already on the voyage. We do

something right already: we teach people how to deploy analysis and also common sense

as we work together to meet the challenges we face. We recruit, educate, and guide the

next generation of leaders—for this country and around the world. More than in any time

of recently memory, lawyers need to lead in the creation of solutions to pressing

problems that affect us all. We are at an inflection point in world history—when the

ways we learn and teach, do business, pursue freedom, equality, and security are

transforming before our eyes. I am confident that Harvard Law School can play a vital

role in these changes and it is exciting to have the chance to work with our

48
Letter to John C. H. Wu, 16 June 1923, in Justice Holmes to Dr. Wu 13 (1947).

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extraordinarily talented faculty, students, alumni, and peers in other parts of this and

other universities on these fronts.

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