Neil's critique

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Neil Shah

A Critique of Aman Solomon’s Fixing Law School

In his blog Unorthodox Ideas to Fix Law School, Aman Solomon provides a forum for members of the legal community to debate proposals to reform law schools for the 21st century.

Solomon should be commended for providing a public forum for his classmates to voice the criticism that although law school continues to grow more and more expensive, it is increasingly failing to provide the robust intellectual experience that students expect when they enroll. He succeeds in outlining some of the most disappointing flaws of legal education today: a classroom environment that often falls short of its fabled reputation as an incubator of sharp analytical skills; a student body that often lacks the requisite levels of engagement and intellectual curiosity; and the futile “waiting game” of 3L year, where many students who have locked down post-graduation employment bide their time in classes that barely interest them rather than finding their true passions.

Despite the clear value of Solomon’s central proposition that law school needs “fixing,” the particular reforms that he advocates require revisiting. Specifically, his proposals to expand the mandatory legal writing curriculum and abolish 1L sections both discount the importance of self-initiative, personal responsibility, and free choice by students. Moreover, they seem to espouse a parochial view that the purpose of law school is to prepare students for work at large law firms, thereby discounting other important aims of legal education.

Solomon’s proposals to expand the number of mandatory first-year legal writing credits and switch from pass/fail to graded status rest on the faulty assumption that students cannot be trusted to take personal responsibility for their own development as legal writers. With respect to the content of legal writing classes, he bemoans the fact that the class focuses exclusively on appellate litigation assignments, meaning that students will graduate law school without experience in drafting the types of documents they are most likely to encounter in actual practice: “motions, interrogatories, and basic corporate documents.” This argument in favor of expanding the required curriculum is problematic because it ignores the fact that students can acquire the same skills independently simply by taking the initiative to find relevant elective courses and clinical offerings. For example, aspiring corporate lawyers can take courses such as the seminar on “Innovative Contracting” or the workshop on “Deal Setup, Design and Implementation,” where they will focus more on transactional writing. Even better, such students could enroll in a clinical such as “Transactional Practice,” where they would work directly with actual clients to draft corporate documents. Similarly, students who are interested in litigation can take courses such as the “Trial Advocacy Workshop,” which will enhance their ability to draft motions and deposition questions.

The broader point here is that rather than increasing the number of mandatory legal writing credits and forcing all students to practice forms of legal writing that they may never use, law schools should expand the elective curriculum to allow students who want to specialize in a particular area to take relevant courses on these topics voluntarily. An aspiring public defender, for example, probably does not need experience drafting material adverse change clauses, but would leap at the chance to improve his ability to write motions to suppress. Rather than allow this kind of individualized choice over curriculum, however, Solomon’s proposal would force students to spend more time in mandatory legal writing classes working on material that they find uninteresting or irrelevant to future plans. Such a plan would increase student disenchantment with the writing curriculum and reduce the incentive to work hard on assignments. Accordingly the only real justification for preferring a mandatory expansion of legal writing to a system where students choose elective courses based on their interest is a concern that students will not take these classes even though they would be highly beneficial to their development as lawyers. This concern seems misplaced, however, because students conscientious enough to earn admission to Harvard Law School will likely display the same type of dedication in taking the classes that will prove most useful to them in the future. Instead of adding more legal writing credits into the required curriculum, law schools should provide students with additional elective courses and entrust them with the responsibility of developing the writing skills most relevant to their chosen career path.

Similarly, Solomon’s perceived need to switch from a pass/fail to a graded FYLRW system rests on the faulty assumption that in the absence of grades, law students lack the self-motivation or other extrinsic incentives to work on their legal writing skills. Though it is certainly true that the lack of grading in FYLRW means that students devote less time to the course than they otherwise would, it does not mean that students blow off the course completely and fail to develop legal writing expertise. On the contrary, students continue to complete repetitive and at times tedious FYLRW assignments despite knowing that they probably will pass the course even if they do far less. In fact, Solomon himself admits that, like many other students, he “ended up devoting a lot of time to [FYRLW],” crafting research memos and working hard on First Year Ames briefs. The reason students devote more time than needed simply to pass is that they understand the critical role of writing skills in their future careers: though grades may very well land them the prestigious law firm job or clerkship of their dreams, their performance and ability to advance will be severely hindered if they do not learn how to make effective legal arguments and communicate them in writing. Because these career dynamics should provide students with enough reason to focus on improving their legal writing, grading FYLRW classes is an unnecessary step that will only exacerbate student frustration. In addition to increasing stress for already anxious first year students and creating the risk of arbitrariness, grading often inhibits student creativity by incentivizing students to make the arguments most likely to please the professor rather than those they personally believe are the most effective. As a result, students might refuse to take the intellectual risks necessary to concoct innovative theories and original policy arguments, thereby inhibiting their development as legal thinkers and writers. Given these factors, relying on students’ self-motivation to compel them to work to learn the basics of legal writing in FYLRW is preferable to incurring the costs of installing a grading system.

Solomon’s recommendation to abolish 1L sections demonstrates a similar disregard for the important role played by student self-initiative. He argues that sections balkanize the class into small factions, limiting students to only eighty other students with whom they can form close relationships and share perspectives on the law, as opposed a system that would expose them to more members of the 1L class as a whole. This perspective is flawed because it entirely ignores the many avenues available to students seeking to interact with people outside of their section. Students can take advantage of the many social events organized by HL Central, including the weekly bar reviews, to meet new people and socialize outside their section. Moreover, many students participate in extracurricular activities or work on journals, where they meet students across the different sections who share similar interests. In addition, many 1Ls live in the Gropius dorms, where they interact with a wide variety of students from different sections, classes, and even countries (in the case of LLMs). In sum, as long as students take the initiative to get involved in the HLS community, they will have plenty of opportunities to meet people outside their sections.

Given the accessibility of these other avenues to interact with non-sectionmates, the goal of facilitating mingling among the 1L class as a whole cannot justify the significant costs associated with abolishing sections. For many students, 1L year is an extremely stressful time and the section provides an immediate and much-needed community of friends with whom to commiserate. The relationships formed during this time often become lifelong bonds that prove valuable well beyond graduation. Moreover, unlike anonymous 2L and 3L classes where most students are reluctant to speak in front of a large group of strangers, students participate much more actively in 1L classes because they already know everyone and feel more comfortable taking the risk of volunteering to speak. Depriving students of these benefits of 1L sections would significantly detract from the overall law school experience.

Another questionable aspect of Solomon’s argument is the underlying notion that the ultimate purpose of law school is to prepare students for the large law firm jobs many of them pursue after graduation. In his proposal to reform legal writing, he argues that because “Tier 1 law schools send a large portion of their graduating classes into large corporate law firms,” courses should focus on preparing students “for the assignments they will receive in these positions.” As such, it is more important to teach students how to “draft a decent material adverse change clause” than it is to analyze “a complex constitutional claim based on the First Amendment.” While it is certainly true that most HLS graduates choose to work at large corporate firms after graduating, it would be a serious error to enact law school reforms that institutionalize this trend by catering to the needs of such employers. From a practical standpoint, orientating law school around “biglaw” practice seems questionable given that many young law firm associates leave to pursue public interest jobs or quit the legal field altogether. More importantly, from a theoretical standpoint, the goal of law school should be far broader than teaching students to become advocates of the big corporation. Legal education should challenge students to analyze legal issues from a variety of perspectives, to understand the ethical and social welfare implications of particular courses of actions, to compare competing theories of justice and decide which is the best to apply in a given situation, and to understand the nature of individual freedoms and how these must be reconciled with conflicting needs of society as a whole. In turn, these goals are often better met when students debate complex issues such as the First Amendment rather than learn the mundane technicalities involved with drafting material adverse change clauses. Though law students will have plenty of opportunities to receive on-the-job training on a variety of corporate law matters once they start as law firm associates, the three years of law school may well be their only opportunity to engage in sustained inquiry into some of these deeper questions regarding the nature of freedom and justice.

To summarize, although Solomon’s project rightly points out the need to “fix law school,” the specific reforms he advocates leave something to be desired. In designing his proposals he should place more faith in the ability of students to take responsibility for their own education and understand the important role self-initiative can play. Moreover, he should look past the narrow view of law school as a purely vocational enterprise intended to prepare students for a career at law firms, and instead appreciate the value of inquiry into more abstract notions of freedom and justice.