Reporting “Down Under” About U.S. Curriculum Developments
By N. William Hines

In recognition of my 28 years of service as law dean, my university generously awarded me a paid leave for the 2004-2005 academic year to retool professionally in preparation for my return to full-time teaching. My wife Jean and I have been taking advantage of this time off from teaching to catch up on some traveling we were unable to undertake while I was dean. Our most recent trip took us “down under” to spend three weeks touring New Zealand and one week in Southeast Australia. For anyone who has not had the opportunity to travel in this sector of the Pacific Rim, I highly recommend visiting these countries. There is virtually no culture shock, everyone speaks English (although sometimes it is a little hard to understand), and the people are warm and friendly to Americans. More importantly, much of the natural scenery is stunning and many of the urban structures are spectacular, particularly the historic sites, museums and public buildings, such as those housing the national parliaments in both nations. The Sydney Opera House is truly an architectural marvel, well deserving its international acclaim.

When it became known that we would be traveling in these two countries, I received gracious invitations from the law schools in the national capitols of Wellington and Canberra to meet with their deans and to make presentations to their faculties on some aspect of U.S. legal education. I gladly accepted these invitations and, upon learning that the law faculties at both Victoria University and Australian National University were engaged in serious curricular reviews, I offered to speak at both law schools on the topic of recent curriculum developments in the U.S. Having personally observed and participated in curriculum reform activities throughout the past 47 years, I thought this was a topic on which I could present a coherent faculty seminar without a great deal of special preparation. Upon sitting down and trying to rough out an outline of my intended remarks, however, I discovered that it is not so easy to formulate an overview of curricular developments in U.S. legal education that intelligibly encapsulates the changes occurring since I first encountered a law school curriculum as a student in the late 1950s.

There is no doubt that U.S. law school curricula have been greatly expanded and enriched since my days as a student. Most schools now offer a variety of clinical opportunities, specialization tracks, numerous “law and” and other perspective courses, much more training in professional skills, particularly legal writing, and a plethora of in-depth seminars that were not even dreamed of during my student days. But if you look at the required 1st year courses and the highest enrollment upper-level electives in the nation’s law schools, most students today are experiencing a core curriculum that, at least superficially, looks very similar to the one I first encountered nearly fifty years ago. There is, of course, a valid point to acknowledge about the “new wine in old wineskins” phenomenon. Although many of the course titles may be much the same, the actual content of today’s Torts, Contracts, Property, Criminal Law, etc. courses is strikingly different than it was fifty years ago, and perhaps to a lesser degree the pedagogy with which these courses are taught has changed. Suffice it to say, in putting together my remarks to be presented to these law faculty groups overseas, I puzzled over whether to emphasize how much things had changed in U.S. law curricula over time or how tenaciously the core curriculum, the case method and Socratic-style teaching had endured in the face of recurring pressures for greater change. Consistent with my legal training, I ended up employing the old reliable “on the one hand/on the other hand” strategy.

In getting ready to deliver faculty seminars to faculty groups as distant as New Zealand and Australia I had occasion to reread Robert Stevens’ encyclopedic history of legal education in America. Initially I wondered how much interest law professors in New Zealand and Australia would have in recent U.S. curricular developments. I needed not to worry. I found out first hand the general accuracy of Stevens’ observation in the prologue to his classic book that “to foreign lawyers, especially the professorate, the American law school is a subject of admiration as well as envy.” I would not, however, describe the interest I encountered as reflecting envy, except perhaps with respect to the level of resources provided U.S. law professors and their status in their universities. It was more one of intrigue about what is happening on the other side of the Pacific as it might relate to reforms in their own programs. A large number of law professors in New Zealand and Australia have had some experience in American law schools, either as graduate students or visiting teachers, but few are very familiar with the details of our J.D-level programs. As law schools around the world increasingly consider the merit of adapting various elements of U.S. legal education to their indigenous legal training, there appears to be great interest in learning more about what we think we are trying to accomplish in our three-year post-baccalaureate curriculum, the ways we go about it, and how we assess our outcomes.

I began my remarks “down under” by sketching in broad brushstrokes the long process through which formal legal education at the post-baccalaureate level achieved its current hegemony over entrance to the practice of law in the U.S. I also tried to explain the cyclical nature of the tensions between the practicing profession and the legal academy throughout most of the 20th century over who would control the structure of legal education and dictate the content of the curriculum. It is not self-evident to foreign-trained law professors why there has been tension over the years between the ABA, representing the practicing profession, and the AALS, representing the legal academy, both of which have long been committed to improving the rigor of legal education and upgrading the quality of the nation’s lawyers. I did my best to explain how these two high-minded organizations might not necessarily see eye to eye on all issues relating to the missions to be performed by legal education, or agree completely about the appropriate paths for pursuing certain reforms. Also not readily understood by law teachers overseas is the operational effect of what ultimately emerged by the middle of the 20th century as the ABA’s dominant role as the official accrediting agency for the 187 U.S. law schools it monitors and the AALS’ different role as a force for intellectual and social progress within its 166 law school members and as the learned society for American legal scholars.

After setting out this brief background, I cited several studies and reports generated during the past few decades as examples of the continuing conflict between the practicing profession and the legal academy over the content of the modern law school curriculum. I referred to such initiatives as the Clare Proposals, the Indiana Supreme Court’s Rule 13, the Cramton Report, the Carrington Report, and more recently, the McCrate Report. With regard to the latter, I was pleasantly surprised to find that faculty members at both Victoria and ANU were quite familiar with the contents and recommendations of the McCrate Report – more familiar than would be members of most U.S. law faculties, I suspect. The New Zealand and Australian law professors and bar officials familiar with the McCrate Report agreed with my assessment that it is one of the most impressive explications of the goals of U.S. legal education ever written. They found particularly useful the ambitious effort to identify and describe in detail the ten fundamental lawyering skills and professional values U.S. law schools should be endeavoring to teach and inculcate. It was the consensus view of these overseas colleagues that the 86-page chapter setting forth and making the case for these ten basic skills and core values should be required reading for every faculty engaged in curricular review and reform.

Returning to the central topic of curriculum development, I devoted the remainder of my talk to presenting an overview of the new ABA Survey of Law School Curricula, 1992-2002, published in February, 2005. This report is based on responses by 152 law schools to a survey instrument focused on curricular developments during the last decade. The survey covered five substantive areas: graduation requirements, 1st year courses, upper-level offerings, including clinical opportunities, post-JD degrees, and distance education. I will briefly summarize the findings I deemed most interesting, only one of which I thought surprising, but I encourage all faculty interested in curricular developments to read the entire report for themselves. The overall impression gained from the survey results is one of relative stability in law school curriculums, accented by steady continuation of trends apparent in the early 1990s. For example, credit hours required for graduation have remained constant, while the average credit hours committed to required courses have dropped from 46 to 43. Schools requiring for graduation some form of clinical experience or skills simulation course have increased to 29%, while 10% of schools now require some amount of pro bono service.

Similarly, the content of 1st year curricula has not changed much in the past l0 years, except for some reconfiguration in credit hours to make room for expansion of additional credits awarded for Legal Writing and Research courses. The most remarkable curricular change occurred in 1st year small sections, a popular reform in the 1970s and 1980s. Small sections were introduced into the 1st year to help ameliorate the supposed alienation and stress produced by uniformly large 1st year classes and to promote better class participation by students intimidated by the large classroom environment. The offering of small sections in substantive 1st year courses dropped precipitously from being offered at 47% of all law schools in 1992 to only 6.5% in 2002. The reasons for doing away with small 1st year sections were reportedly both economic and pedagogical, which I take to mean that, in a world of static or declining financial resources, the pressure for expanding skills offerings, particularly the growth in legal writing staffs, plus student demand for new upper-level offerings in emerging fields of law meant something in the curriculum had to give, and remarkably 1st year small sections were the sacrifice of choice in over 60 law schools. As a long-time champion of 1st year small sections, I found this development particularly disappointing.

Most of the changes that were reported in upper-level elective curricula largely reflect the long-term impact of the McCrate Report’s recommendations for greater attention to practical skills training as subsequently embraced by modest changes in the ABA’s accreditation standards. Almost 84% of the schools report they offer in-house live clinical opportunities. The Curriculum Report flatly states: “Law schools have made an abiding commitment to all aspects of clinical education,” which it documents by reporting that nearly all law schools now regularly offer simulation courses beyond Appellate Advocacy and Trial Advocacy. Almost 90% of the schools offer planning and drafting courses, and 78% offer all three ADR courses: Alternative Dispute Resolution, Negotiation and Mediation. In addition it is reported that over 96% of law schools offer credit for externships. Besides the increase in skills-training opportunities, the most notable change in the upper-level elective curriculum has been the increase in specialization and certificate programs, which 55% of the schools now report offering. The most popular specialty tracks are in Intellectual Property and International Law, with Health Law and Business Law also popular. Joint degree opportunities with other university departments continue to increase, with nearly 85% of the schools offering one or more joint degree programs. The JD/MBA is by far the most popular joint degree. Post- JD programs have also experienced a 30% growth over the past ten years, with over 54% of law schools offering such graduate law degrees in 2002. Finally, the ABA reports that distance education courses are now offered in some form by over 12% of U.S. law schools. Reliance on distance education appears likely to expand as law schools work out the most academically responsible means for utilizing courses available from off- campus providers through electronic technology. The ABA’s recent adoption of specific standards governing distance education in law seems likely to promote greater experimentation with this source of classroom credits.

As mentioned earlier, notwithstanding the curricular changes noted above, the overall impression given by the most recent ABA Curriculum Survey is one of relatively stable law curricula evolving slowly in response to pressures outside the schools. This was very much the story of curriculum development in U.S. law schools during the 20th century as portrayed in Professor Stevens’ comprehensive history of U.S. law schools spanning the 1850s to the 1980s. If history is any guide, it is difficult to project that there will be great curriculum upheaval early in the 21st century. To be sure, law curricula will continue to develop apace, but as Professor Stevens astutely reminds us, it is often easy to “mistake innovation for reform.” In my academic lifetime I have seen many curricular experiments fail to achieve the results they promised. In schools where the faculty takes seriously its responsibility for curriculum oversight, innovation is strongly encouraged, but curriculum reforms are reviewed periodically and adjusted if they are not producing the desired outcomes. This leads me to close with one of my favorite Hines’ caveats, which I found occasion to voice from time to time during my long deanship. To wit: Curriculum change proposals motivated primarily by a desire to enhance the welfare of faculty members ordinarily do not meet the generally accepted test for meritorious curriculum reform – that the changes proposed will improve the quality of the legal education provided students in ways that will ultimately afford the public more competent and accessible legal services.