Academic journal article Vanderbilt Law Review

A Damn Hard Thing to Do

Academic journal article Vanderbilt Law Review

A Damn Hard Thing to Do

Article excerpt

Back in the mid-eighties, I offered a first year, second semester "un-elective" called American Legal Theory and American Legal Education. It scrunched together two history courses I had taught irregularly before. I liked the way the two topics fit together and still do, but with so many recalcitrant law students enrolled in it, the course was an unmitigated disaster. As is always the case with such attempts at offering perspective, amidst the shambles I had acquired at least a few devoted students. At the end of the last class one of them came up to the front to ask a somewhat rhetorical question. He said, "Do I read you correctly? You have been arguing that if we want to change legal education, we have to change the categories of legal thought?" I nodded in agreement, to which he replied, 'You know that's gonna be damn hard?"

I remember this comment not just because of the student's insight but also because it pretty much marked the end to my active participation in attempts at significantly reforming the curriculum at the University at Buffalo Law School. An attempt to comprehensively reform the first-year curriculum had recently broken down when one crucial participant offered a "my way or the highway" alternative that none of us could understand. Such a result was a fitting tombstone to a career that had started back in 1967 when I was a third-year law student. Gerhard Casper, then new to the University of Chicago Law School faculty, gathered a group of my classmates together to discuss revision of that school's curriculum. As a member of this group, I suggested that the first year be given over to tutorial work designed to bring all students up to master's degree level of competence in a range of relevant social sciences. I then suggested that the existing first year be moved to the second; the existing second, to the third; and the balance heaved overboard. At the time I did not understand that Gerhard was already running for dean, but in retrospect, it should have been obvious from his reply to my suggestion: "Mr. Schlegel, we are here to talk about reform, not revolution!"

Gerhard's comment seemed odd at the time, as I did not think that I had proposed exterminating the kulaks, but by the end of my twenty-year run at law school curriculum reform, I had adjusted my efforts to the more limited objective of understanding why the kulaks at least thought I had suggested expropriating the expropriators. From time to time I have offered such limited understandings in person and in print.1 Generally, they have been met not even with a hostile scowl, but with stolid indifference, though once I generated a quite angry response from Tony Kronman, who was on that occasion my host. Still, when Ed Rubin, dean of the Vanderbilt University Law School, asked that I participate in this conference, true to my grandfather's reported observation when watching me as a young child try to force the large pot into the small one-"Determined-son-of-a-gun, isn't he"-I agreed to try again.

Let us begin with familiar territory. One might argue that the primary obstacle to curricular change is the bar exam, though I suspect the bar examiners would jump on board were the bar supportive of a significant change. Or, if not the bar examiners, then the bar, though I think that the upper echelons only care that we sort our students enough to save them interview time in the hiring process, and the lower echelons, that we teach a bit of procedure and the ability to take directions. Or, if not the bar, then the students, who after over sixteen years on the academic treadmill prefer to have any knowledge delivered "straight in the vein," though I note that many students show a real interest in our present efforts up until they are exposed to practice in the summer before their second year and might well continue their interest had not that work experience disabused them of the notion that the first year of law school was a foundation for practice. …

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