Finding the Lawyer Identity

Volume 4 • Issue 4 • May/June 2018
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Rethinking the First-Year Curriculum

Erwin Chemerinsky on how law schools can prepare students for careers

Erwin Chemerinsky is the Dean of UC Berkeley School of Law and the Jesse H. Choper Distinguished Professor of Law. He joined John Bliss, a fellow at the Harvard Law School Center on the Legal Profession, for a conversation on professional identity formation and the role of law schools in preparing students for their careers as lawyers.

John Bliss: My research suggests that law students often feel unprepared to navigate legal career options and struggle to connect their identities and public-interest values with their upcoming positions as lawyers. Some law schools have been innovating around these issues, but probably the most robust approach is what you accomplished as the founding dean of the UC Irvine School of Law by creating a required first-year course on the profession. Can you talk a bit about how that course came about?

It’s important that students think about the profession and think about professional responsibility before they become substantially socialized into it.

Erwin Chemerinsky: At Irvine, we had the luxury of having the founding faculty together for a year before the students arrived. We all came in July 2008 with the understanding that the first students would arrive in August 2009. This gave us the opportunity to really plan for what the school was going to be, including the curriculum. Part of our challenge was to be sufficiently creative and innovative to justify why we exist, but to be sufficiently traditional to be credible. We didn’t want to replicate what everyone else was doing and squander our opportunity, but at the same time we wanted to not be perceived as doing something so radical that employers would not want to hire our students.

I remember when we started the discussion at the curricula meetings, one of the ten founding faculty came in with a traditional-looking curriculum—torts, contracts, and the like. And the response of the whole group was, “No, that’s not what we want to do. We want and need to be innovative.” And we began by thinking through what we really wanted the students to get out of the first year. We always say the first year of law school is teaching students to think like lawyers. But what does that actually mean?

We decided to construct the first-year curriculum around methods of analysis. It is based on the realization that common-law analysis is different from statutory analysis, which is different than constitutional analysis, and international analysis is different from other types of law. And so, the idea was that every first-year student would take a course on common-law analysis in contracts and common-law analysis in torts, a course on statutory analysis, where we would use criminal law as the vehicle, a course on procedural analysis, a course on constitutional analysis, and a course on international legal analysis. We also decided that we wanted to have a significant component of the first year focus on lawyering skills, so we devoted six units each semester to lawyering skills.

Then we decided that we wanted a first-year course on the legal profession. Ideally, it was to be two units each semester for the year-long course, though sometimes it was one semester for four credits. And it was meant to really teach students about the profession they were joining. It was going to cover the basics of the rules of professional conduct, but it also was about the sociology of the profession. It was some about the economics of the profession. It was also going to have a significant component of speakers’ panels—about one out of every four classes was a panel of speakers on different practice settings. The goal was to give students a much richer sense of the various career options within the legal profession. Ann Southworth and Catherine Fisk took responsibility for designing the class. They prepared the materials, which have since been published as a casebook, and now others teach the class as well. The class was one of our real successes.

Bliss: Do you think this is an approach that you would recommend to other law schools?

Chemerinsky: Very much so. I have taught professional responsibility in a number of different contexts. I think it’s important that students think about the profession and think about professional responsibility before they become substantially socialized into it. Moreover, because we expect students to be involved in lawyering from early on in their career, they really do need to know the basic rules of ethics very early on. The course really worked at Irvine. And the student reaction was very positive.

Part of our challenge was to be sufficiently creative and innovative to justify why we exist, but to be sufficiently traditional to be credible.

Bliss: When I present my research to law students and I suggest a first-year course on the profession as one of my policy proposals, they almost always ask why this isn’t being adopted at more law schools. More broadly, they ask why there doesn’t seem to be much experimentation in legal curriculum. What do you see as the primary obstacles to this sort of innovation?

Chemerinsky: I’ve been part of discussions about revising the curriculum at a few different schools. At USC Gould School of Law, I chaired the committee that moved professional responsibility into the first year. But it’s a difficult thing to change the first-year curriculum at any school. People are very invested in what they teach and how they teach it. There is no doubt that reforming the first-year curriculum, including moving professional responsibility or any other course into it, is tremendously hard. We had the distinct advantage at Irvine of having a blank slate. When you want to change what people are already teaching, inevitably there’s resistance.

Bliss: One approach that might help make these reform efforts more persuasive would be to develop better assessment tools to show empirically what’s working. I know that the American Bar Association (ABA) has been pushing for more educational assessment. What role and what challenges do you see for assessing the effectiveness of innovations in legal education?

Chemerinsky: I’m highly skeptical of the ABA effort to focus on measurable learning outcomes. I’m skeptical that that’s the solution. In part, I think it sets a preference for that which is quantitative over that which is qualitative. In other words, through these assessment tools, that which we can measure is made to seem much better than that which is more qualitative. In constitutional law, I want to teach my students how to develop constitutional arguments. But I doubt that can be measured in a quantifiable way. After all, when it comes to the things that we’re really talking about here, I want students to have a richer sense of the profession, and I don’t know how you’d measure that.

Bliss: What do you tell incoming law students who say that they want to become public-interest lawyers, but acknowledge concerns about debt and the limited supply of public-interest jobs?

Chemerinsky: I strongly encourage students to pursue public-interest careers and talk about my own personal experience. I went to law school, because I wanted to be a public-interest lawyer. I had no interest in going to a law firm. I never interviewed with a law firm. I had a grand total of zero interviews the fall of my second year of law school. It was a very alienating experience to watch all of my classmates, male and female, dressed up in their suits. Their primary conversation was about who they were interviewing with and where they were getting taken to dinner. And I had no part of those conversations. I worked in the public interest office after my second summer of law school and got the job in January of my second year through applying and a phone interview.

I have also found that some schools do push their students to go to firms. When I was on the faculty at Duke School of Law, I had a lot of students there tell me: “I don’t want to go to a law firm, but I’ve been told that’s what you really need to do after graduation. That’s where you get trained as a lawyer.” In fact, for a couple of years, another professor at Duke, Jim Coleman, who was a partner WilmerHale, and I did a program for first-year students and told them, “You don’t have to go to a law firm.” I, of course, totally support students going to “Big Law” if that is what they want. My concern is when students feel pressured or channeled to take that path.

This sort of channeling is much less in the air at Berkeley Law. I think that many of the students that come here come because they want to do public service. I always talk about the things that the school tries to do to help. Some of those things revolve around money for students who are doing public-interest work, including fellowships and loan repayments. The students are critical that we don’t do enough—that our summer grants aren’t large enough, that we don’t have enough fellowships, that the loan repayment assistance program isn’t as generous as it should be. They are right. I’m committed that we should do all we can do to help them.

I totally support students going to “Big Law” if that is what they want. My concern is when students feel pressured or channeled to take that path.

Bliss: Berkeley Law, NYU School of Law, and a couple other schools are interesting cases where you have a strong public-interest reputation that attracts a lot of students who are interested in that sector, but you also offer great access to positions in large firms. How do you see students navigating this issue at Berkeley relative to other schools?

Chemerinsky: I think Berkeley Law’s public mission is central to its identity. Many students come to Berkeley because of this. It is manifested in so many aspects of the school. We have scholarships for students with a demonstrated background in public service. The vast majority of the students do pro bono work while in law school, though it is not required. We provide funds for all students who want to do public-interest work after either their first or their second year of law school. We have bridge funding and fellowships for students doing public service. We have a good loan repayment assistance program. All of this is reflected in Berkeley usually being among the top schools in placing its graduates in public interest and government positions.

 


Erwin Chemerinsky is the Dean of UC Berkeley School of Law and the Jesse H. Choper Distinguished Professor of Law.

John Bliss is a fellow at the Harvard Law School Center on the Legal Profession.

Finding the Lawyer Identity Volume 4 • Issue 4 • May/June 2018

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