Assistant Professor Gabriella Blum (LL.M. ’01 S.J.D. ’03)
Harvard Law School proposes new answers to the question “What do future lawyers need to know?”
For more than 130 years, Harvard Law School’s curriculum has been modeled on the plans drawn by Dean Christopher Columbus Langdell in the late 1800s: intense immersion in property, contracts, torts, civil procedure and criminal law during the first year, followed by two more years—less structured than the first—in which students have been free to choose most of their courses from an increasingly extensive catalogue of specialized offerings.
Much of the teaching has employed the case method, born of a belief that law students can best gain the ability to “think like lawyers” by learning to make subtle distinctions between the facts and language of cases and judicial opinions.
But over the last several decades, with the rise of specialization, globalization and an increasingly regulatory environment both at home and abroad, the practice of law has become more international in scope and has come to require a systematic grasp of statutory and regulatory institutions and practices as much as an ability to glean principles from appellate decisions.
As a result, there has been a gathering consensus on the Harvard Law School faculty that the curriculum should better ensure that students are introduced to administrative, international and comparative subjects when forming their maps of the legal world. There has also been a growing sense that the traditional focus on court opinions should be supplemented more by materials and methods that better address the role lawyers play as problem-solvers and leaders in public and private settings.
That’s why, in two separate votes over the last 18 months, the faculty voted—unanimously—first to implement new, optional programs of study for second- and third-year students, and then to retool the first-year curriculum for the first time since the late 19th century.
“These are major steps forward in our efforts to develop a law school curriculum for the 21st century,” said Dean Elena Kagan ’86. “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 extraordinarily grateful to the entire faculty for its vision and support of these far-reaching reforms.”
The unanimous faculty votes made the process of curricular reform look almost breezy. In fact, the votes were the culmination of a three-year process of intensive review and information-gathering.
Proposals for curriculum reform have been discussed at HLS for several decades. In the 1980s and early ’90s, one section of each first-year class pursued experiments in collaborative and interdisciplinary teaching. But the efforts aimed at reform didn’t gain enough traction among the faculty until Kagan became dean, says Professor Martha Minow.
Kagan set her sights on curricular reform just as she took the helm of HLS four years ago, appointing a faculty committee to study the issue. She asked Minow to lead it.
“After becoming dean, I spent a lot of time talking to alumni and faculty who felt that our curriculum needed to catch up with the changing nature of the law in the world,” said Kagan. “It was time for some change.”
Minow, who holds a master’s degree in education from the Harvard Graduate School of Education, was intrigued but wary. She had joined the HLS faculty in 1981 in part because of the curricular experiment then under way, and had been disappointed when it did not continue. She wanted to know how serious Kagan was.
“I said, ‘Elena, you have to make it a priority.’ She completely did,” recalled Minow, noting that Kagan sought input from alumni around the country as she traveled on HLS business, kept faculty deeply involved in the project’s progress, and placed the interests of students front and center. “Elena opened her home to dinner after dinner on the issues. Something happens when people sit and talk in that kind of setting, and find common ground and find things that could be better.”
Minow and nine colleagues (including Kagan) on the committee spent three years on the project. The first 12 months were devoted entirely to gathering information from faculty, practitioners, alumni, law students and people at other law schools. They also studied curricula at business, medical and policy schools. And they examined other attempts at reforms in legal education, including those that had been unsuccessful.
“What we quickly found was that there was enormous consensus on what the problems were,” said Kagan. “Not that legal education is broken. In fact, it does some things extraordinarily well. But still, there are significant gaps and real room for improvement.” In particular, there was remarkable agreement among all the stakeholders that change was needed in three key areas.
First, the practice of law has become far more global than the traditional curriculum recognized. Without an emphasis on an international perspective, Minow said, “students were not getting sufficient preparation for what it is to practice law or work on human rights or engage in business in the modern world.”
Second, law practice today is far more influenced by settings outside court than the case-study method, with its focus on appellate decisions, would suggest. Minow says it became apparent to the committee early on that students need more training in the legislative and regulatory processes, and also need to become adept at creative problem-solving in order to help clients with real-world issues. And, she says, legal education should be expanded to include more emphasis on relevant disciplines such as economics, psychology, public policy and business, not only through more opportunities for joint degrees but through cross-registration at other Harvard schools.
Third, students need more guidance in shaping their upper-level studies so they can develop a particular focus but without being narrowed into specialists. “We have the largest array of courses in any law school in history,” said Minow. “It’s quite a smorgasbord, and it’s quite delicious and exciting, but it can be confusing for a student to wind a way through it. It did seem to us, and to students and alums, that it would be good to have better advice on how to build a more sensible program of study—how to go deep, not just broad, and how to develop some sense of expertise—not because that’s what you’ll practice all your life but to see how law looks when you’re beyond the introductory level.”
Two years ago, the committee floated some initial recommendations in a report to the faculty. Professor Martha Field noted in an interview with the Harvard Law Record that this first report included some suggestions that the faculty did not like. Afterward, according to Field, “there was a substantial process of listening to our objections and taking them very seriously.”
After some refinements and revisions, the proposed changes were resubmitted to the faculty for two separate votes, culminating in the go-ahead for the new upper-level programs of study in the spring of ’06 and then for the changes to the 1L curriculum.
How does this play out in practical terms for this year’s students and for future classes? Starting in the fall, all 1Ls began taking a required course in legislation and regulation. They will also take a foundational course on international or comparative law and have several from which to choose.
All students will be required to take a complex problem-solving course that emphasizes creative thinking and the ability to draw from a variety of resources in order to solve real-life legal problems of the sort that a lawyer might encounter in practice. This year, the course will be offered to upper-level students during winter term. Within the next two years, it will become part of the 1L curriculum, beginning in an intensive winter term and extending into the regular spring semester.
To make room in the schedule for these additions, the calendar will be rearranged (for example, by creating a winter term in the first year). The standard 1L courses—property, contracts, torts, criminal law and civil procedure—will be pared down from five credits apiece to four.
The changes to the 1L curriculum complement five new programs of study adopted by the faculty to help 2Ls and 3Ls organize their classroom, clinical, research and work opportunities. The initial programs of study are: Law & Government; Law & Business; International & Comparative Law; Law, Science & Technology; and Law & Social Reform. Others may be added, depending on the interests of students and faculty. “Students interested in particular areas can consult faculty in the field and written materials about the field and then better navigate the enormous breadth in the HLS curriculum, its clinical opportunities, fellowship and summer work subsidies, allied courses in other parts of the university and research opportunities,” said Minow. The programs of study are designed to offer guidance but are not “majors” or “concentrations”; the goal is not to turn students into specialists but rather to make their second and third years more meaningful, she emphasizes.
Meanwhile, the clinical curriculum will continue to expand so students can gain more real-world experience. “We need as much as possible to engage students in the role of grappling with real, complex problems,” said Minow. All students are strongly encouraged to pursue clinical education in order to learn practice skills, reflect on professional roles and test theories in practice. They are also advised to take an interdisciplinary approach to their legal education by enrolling in courses at other schools in the university.
“This new approach will draw more on legal imagination,” said Minow, “and on entrepreneurship and thinking outside of the box. It will draw on insights and ways of thinking in other disciplines. These are all talents and interests that our students have, and they should be folded into the opportunities we give them.”
The announcement of the new curriculum made headlines across a broad spectrum of the news media, from The New York Times to the blogosphere. Reactions from lawyers and analysts ran the gamut from enthusiasm to guarded optimism to the view that if it ain’t broke, don’t fix it. Some critics said the reforms don’t go far enough. Andrew Cohen, legal analyst for CBS News, said there should be even more emphasis on practical training, including how to deal with clients, take depositions and handle the common tasks that lawyers face.
Minow agrees that practical training is important—hence the continuing emphasis on clinical opportunities and the school’s considerable new investments in enlarging those opportunities. “When I’ve talked to lawyers through the years, they’ve told me over and over, ‘We need people who can talk to clients, hear their issues and actually help solve their problems.’ I hear it from public interest lawyers, from businesspeople, across the board,” she said. Indeed, Minow’s own father, Newton Minow, a lawyer who who has served in high positions in both the public and private spheres, echoed this sentiment. “He always said, ‘Bring me a lawyer who can talk to people!’” Minow said, smiling.
The answer isn’t to turn law schools into trade schools, she insists. The school doesn’t want to dilute its strengths: teaching critical and analytical thinking. “Don’t make it more of a vocational school, we were told by lawyers we consulted around the country, but yes, use clinics and advanced seminars to teach students to grapple with complicated problems and learn new ways to deal with them,” she said. “This coincides with the explosion of clinics here, which is really thrilling.”
While the new courses have only recently gotten under way, early reports are positive. “Lawyers today and in the future operate primarily in a world of statutes and administrative regulations,” said Mark Tushnet, one of the professors teaching the new 1L course on legislation and regulation. “Although in my view the methods of analysis one uses in interpreting and applying statutes and regulations are not dramatically different from the methods students learn in their common law courses, the process of learning those methods has a different feel when one works primarily with statutes and regulations. So, it’s helpful to students to ‘triangulate’ legal reasoning from the common law and the statutory/regulatory directions.”
Also, Tushnet added, “the traditional curriculum didn’t bring to students’ attention the institutional characteristics of any institutions other than courts, and even then only indirectly, because there is nothing to which students can systematically compare the courts. The new course puts the comparative institutional analysis front and center.”
How are students reacting? “My students certainly seem enthusiastic,” Tushnet reported. “I have strikingly high levels of participation in my class, although some of that is surely the general enthusiasm of first-semester students here.”
As the new curriculum is implemented, Minow and her committee—and the rest of the faculty more broadly—will review how well it’s working. She expects faculty members in different fields to meet and discuss the relationships among their courses, emerging and forecasted changes in practice, and evolving research developments. She hopes they will find productive opportunities in these conversations to plan continuing refinements in existing courses and future offerings. And the benefits to the students will be manifold, she believes.
Minow has received phone calls and inquiries from law schools around the country and in other countries. The central concern of her committee was to improve the curriculum for Harvard Law School students, she says, but she acknowledges that the committee was cognizant that Harvard is a leader. Most law schools adopted the curriculum designed by Langdell, she notes, and many will now look to HLS to see how it is being changed.
There were moments during the last three years when the process of exploring curricular reform was so consuming for Minow that she “had little time to do other things,” she said. But today she is delighted with the result and enjoying the fruits of her labor—watching the changes unfold in the classrooms and clinics.
“It’s terribly exciting, and it’s not over,” she said. “If we’re successful, it’s a process of continuing to reflect and improve on what we teach and how we teach. It’s incredibly energizing.”