Tuesday, March 13, 2007

Putting Hegel Right-Side-Up Again

In the current breathless climate epitomized by Autoadmit.com, it’s easy to forget that there were law school prestige wars a long time before there were ever USN&WR rankings. Answers.com tells a pretty fluent and compact version of the story.

The earliest American legal education worked on the apprenticeship model. The first organized U.S. law schools centered around well-reputed individual attorneys or groups of practitioners. These instructors retained much of the apprenticeship model, lecturing and training on practical skills.

When Christopher Columbus Langdell took over the Harvard program, he did much more than invent the case method and the first-year curriculum we all know and love. He also began to shift the whole approach of legal education from a practical to a quasi-scholarly pursuit. Many--but not all--schools followed in his footsteps. The intervening period has seen a pronounced divide between schools emphasizing practical skills and those that aspire to be, like Harvard, centers of legal scholarship.

Schools on the pre-Langdell model have typically had evening and part-time programs; Langdell-style schools did not. The former continued to teach state law in a serious way; the latter generally focused on federal law or on the commonalities between and among state bodies of common law. See, e.g., the ALI’s Restatements and “Principles” projects. There has been a degree of convergence, and the quasi-scholarly Harvard model basically won the battle for prestige, in part by capturing the relevant ABA comittees, creating the AALS, and forcing nearly all schools to adopt their core curriculum and basic method of instruction.

Even today, though, there’s a clear line between schools that, for instance do and do not have evening or part-time programs, schools that emphasize state over federal law, and—the occasion for my present post—schools that do and don’t put real emphasis on and direct real resources towards their trial advocacy programs.

It’s not a coincidence that Harvard and Yale historically have not had strong trial programs—it wasn’t gentlemanly, it wasn’t consonant with their view of legal education, and it just wasn’t “the sort of thing” they did. It also wasn’t possible for them, since they tended to hire instructors with limited practical experience. And so it’s not a coincidence that Boalt and other schools aspiring to membership in the Harvard/Langdell club have also tended to lack such programs—it was a way of proclaiming that we “belonged” to that select crowd. Meanwhile, many “lower tier” schools have continued to train people to be trial lawyers. Much of the strongest competition in the trial advocacy realm comes from schools not normally mentioned in the same breath as Stanford, Boalt, or any of the other “top ten.”

But we happen to live in exciting times, trial-advocacy-wise, at Boalt. Interest in the program is at a record high. Boalt has fielded a total of seven trial teams in four separate regional and national competitions this year. Competition results thus far have been very positive, and in fact our SFTLA team won first place in their fall competition--by a landslide, according to all reliable reports. Several outstanding practitioners have volunteered a great deal of time to the program, and participants are very enthusiastic. (I am a participant, for example, and I am totally enthusiastic, in case you can’t tell.) Note that this is all taking place at a time when Boalt is also rising in the heavily Langdell-inflected USN&WR rankings and investing in quasi-scholarly centers like BCLBE and the Earl Warren Center.

So I encourage people to try out for next year’s trial teams, when the board of advocates holds tryouts. There’s a workshop this Saturday that it may not be too late to sign up for. There are some excellent trial ad courses available. Ask around. Think about it. If Hegel is right that history is an episodic narrative of thesis (the apprenticeship model) and antithesis (the Harvard/Langdell model), then we may be at the cusp of a paradigm-shifting synthesis—the Rise of the Boalt Hall Trial Ad Program.



Blogger Armen said...

I'll grant that schools like Loyola (LA) produce some of the best trial lawyers. However, I still think that a great deal of the unaccredited schools are basically scams designed to take money from those who don't have the means, time, ability, etc. to go to one of the "Langdell" schools. You spend four years at these schools taking all the bar classes and maybe an elective or two thrown in for good measure. They're glorified bar/bri courses...that charge a crapload per unit.

I'm happy for the trial teams, and I wish all of Boalt's moot court competitors well. But let's not glorify the apprenticeship model too much.

3/14/2007 12:24 AM  
Anonymous Anonymous said...

On the subject of training experiences, Boalt should start a S. Ct. clinic, where students write party and amicus briefs for current cases. Why pretend to be a justice in a seminar (the Boalt status quo) when you can try to persuade one instead? Stanford has a great S. Ct clinic. Harvard is starting one. Northwestern, I believe, will have one. We have the student talent to run a great clinic. For starters, though, we'd need a S. Ct. litigator to run it and bring some clients. Boalt should be able to attract a great team of litigators to run such a clinic.

3/14/2007 3:47 AM  
Anonymous John Steele said...


Thanks for mentioning the trial ad program and the workshop this Saturday. If you haven't signed up, track down Audrey Mink or Sarah Angel for details. The workshop will give you skills that apply to every aspect of lawyering -- not just trial work. You will learn the basics of asking questions, which is a fundamental part of all legal work. Plus, it's just plain fun. Virtually eveyone will start the workshop as a beginner and in just a few hours will have new skills and confidence.

By the way, Isaac failed to mention that his team (along with Katie Lubin, Tamar Malinkek, and Radhika Sainath), took second place at the Stanford Invitational.

3/14/2007 7:50 AM  
Blogger Isaac Zaur said...

1) I basically agree with Armen that most of the unaccredited schools today are more or less scams. But that's largely because schools embracing the Langdell model have long since coerced all serious competitors into the accreditation/ABA/AALS framework. At this point I would argue that I the Langdell/non-Langdell distinction is a distinction between two sets of priorities and historical affinities. It's not a hard-and-fast line into which you can group contemporary schools, and it most certainly doesn't map precisely onto any of the high-profile contemporary divisions like "tier one," "top 14," or accredited/non-accredited.

2) I love the idea of a Supreme Court litigation clinic. I'm not sure it would all that easy to get the right people to lead it, but a program like that would be great. The California Supreme Court is also a very interesting court, and is right in SF. In fact, some Boalt students wrote an amicus brief that was repeatedly referred to in an oral argument there early this fall.

3/14/2007 9:09 AM  
Anonymous John Steele said...

For some data on the issue of trial advocacy success and law schook ranking, see the regional ATLA winners here:


3/14/2007 10:18 AM  
Anonymous Anonymous said...

Aside from our great faculty, there's plenty of practicioners who could plausibly help with a S. Ct. clinic from Munger, Quinn, Gibson, Keker, Lieff, Lawyers Committee, and Altshuler Berzon. The DC bar does not have a monopoly on Supreme Court appearances.

3/14/2007 11:54 AM  

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