I. THE NEED TO IMPROVE PRACTICAL TRAINING FOR LAW STUDENTSAND ONE INNOVATIVE SOLUTION
A. The Rising Tide of Criticism
In recent years, a growing chorus of law school critics has argued that legal education is not preparing law students to practice law. Cameron Stracher, a New York Law School professor, puts the general problem this way:
There appears to be an emerging consensus that although law schools may teach students how to 'think like a lawyer,' they don't really teach them how to be a lawyer. . . . In addition to misleading students, the current system [of legal education] harms clients who often assume that their lawyers have more experience than they do.
This emerging consensus found clear expression in a January 2007 report by the Carnegie Foundation for the Advancement of Teaching (the "Carnegie Report").2 Visits to sixteen law schools in the United States and Canada revealed that:
Most law schools give only casual attention to teaching students how to use legal thinking in the complexity of actual law practice. Unlike other professional education, most notably medical school, legal education typically pays relatively little attention to direct training in professional practice. The result is to prolong and reinforce the habits of thinking like a student rather than an apprentice practitioner, conveying the impression that lawyers are more like competitive scholars than attorneys engaged with the problems of clients. Neither understanding of the law is exhaustive, of course, but law school's typically unbalanced emphasis on the one perspective can create problems as the students move into practice.
Although the Carnegie Report shed new light on the issue, leading practitioners were already well aware of the problem. Business lawyers have been particularly dissatisfied. Charles M. Fox, a former senior partner at Skadden, Arps, Slate, Meagher & Flom LLP, wrote about the lack of transactional training years earlier, noting that while most junior associates know how to handle a litigation assignment, they have little, if any, idea how to work with a contract.4 Christopher E. Austin, a corporate partner at Cleary Gottlieb Steen & Hamilton LLP, says many law school graduates are not well-prepared for a transactional practice and that, among other things, they frequently lack the transactional skills they need. "Many people come with virtually none of those skillsdrafting and negotiating a complex contract, conducting due diligence. . . .We find we have to start on a very basic level."5 To deepen my understanding of the problem, I spoke about transactional training with several other partners at leading transactional law firms in New York and Chicago. Each one said something very similar.6
Law students themselves clearly sense they need more "transactional skills training," as the practitioners say. Victor Fleischer, a law professor at the University of Illinois College of Law, notes:
[Law] [s]tudents crave deal experience. About 90 percent of Columbia Law School graduates work as corporate transactional lawyers or litigators with corporate clients within five years of graduation. Consider a typical law student who accepts a job at a large firm. She has spent perhaps 95 percent of her time in law school reading and discussing cases and law review articles. Once in practice, she will go days or weeks at a time without picking up a case or a law review article. Instead, her days will be filled with drafting, reviewing, and marking up transactional documents, negotiating language with opposing counsel . . . and composing memos, emails, and letters to colleagues and clients.7
Law schools can do a much better job training students how to practice law. My interest in this task grew in the fall of 2005 as I began to develop a cross-disciplinary8 negotiation course for New York University ("NYU") law students and business students. The more I learned, the more I discovered the extent of the problem, and ways a course could help solve it. …