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John Harvard's Journal

A New Script for One L

January-February 2007

The experience of first-year students at Harvard Law School, famously chronicled by survivors Scott Turow, J.D. ’78, in One L, and John J. Osborn Jr. ’67, J.D. ’70, in The Paper Chase, has not changed significantly in one respect—the curriculum—for more than a century. That’s a bit too much stability, the faculty has decided, voting unanimously on October 5 for an overhaul.

The present course of study was established in essence in 1870, along with the case method of teaching, by the school’s pathbreaking dean, Christopher Columbus Langdell, and it was so widely influential that a similar drill is familiar to students at most U.S. law schools. It focuses on contracts, torts, civil procedure, criminal law, and property. Henceforth at Harvard, less time will be given to these classic topics to make room for new required first-year courses to be phased in during the coming three academic years:

• “Legislation and Regulation.” This course will plunge students into the modern regulatory state. Traditionally, incipient lawyers have taken their lessons mostly from close reading of appellate court decisions. Now they will read statutes as well and consider the immense amount of law made by legislatures and administrative agencies concerned with environmental protection, food and drug law, consumer protection, and the like. They will begin to fathom the processes of government.

Chart by Stephen Anderson

• International/ comparative courses. A student will choose one of three offerings designed to provide wider-world context for U.S. law. A course on public international law will explore the institutions and procedures that emerge through bilateral and multilateral arrangements among states, sometimes with the participation of nongovernmental actors. Another on international economic law will expose students to the network of economic regulation affecting commercial transactions, trade, banking, and other economic relations around the globe. A third course, on comparative law, will introduce U.S. students to one or more legal cultures different from the homegrown one.

• “Problems and Theories.” The idea here is to teach students to think like clients. “Lawyers increasingly do not just litigate and parse texts,” says Einer Elhauge, Petrie professor of law and director of the Program in Law, Medicine, and Bioethics. “They negotiate, theorize about the cause of problems, and devise solutions to them that may or may not involve law.” In addition to the Socratic questioning historically employed by law professors, the pedagogues of this course will use role playing, brainstorming in small groups, mock litigation, lectures, and other techniques as well.

“The idea is to make sure that our graduates are not only great advocates, but great problem solvers,” says the dean of the school, Elena Kagan, J.D. ’86. “That means giving our students the experience of dealing with the sort of messy situations that arise in the world, which require consideration of multiple bodies of law, complicated and often disputed facts, and questions of both ethical and practical judgment. The best lawyers and the best leaders are people who think wisely, rigorously, and creatively about how to deal with these kinds of prob-lems, and that’s what this course is meant to equip our students to do.”

The academic calendar for 1Ls will change to duplicate that of the rest of the school, with a three-week January term for intensive study in a single field. The “Problems and Theories” course will begin full blast in January and continue less intensively in the spring term. (Students will take examinations for first-term work before the holiday break, instead of after it as they do now, allowing more wholehearted attention to plum pudding.)

“I believe we have put in place a combination of reforms that no one else has done,” says Martha Minow, Smith professor of law, who chaired the faculty committee that developed the new curriculum. “Many of its elements have been available at other law schools in some form as an elective part of the upper-level curriculum, but not built specifically for first-year law students or required for all.”

“The faculty voted to require these courses,” says Kagan, “because they are foundational in every sense—fully as important as the traditional first-year courses to becoming a skilled lawyer in the twenty-first century. When we say that some courses are required and others elective, we are implicitly saying that the latter are less important. But these new courses are not less important. They are essential aspects of legal training in our time.”

The faculty intends the upperclass years to foster close encounters with chosen fields. Last spring it adopted a reform proposed by Minow’s committee to develop several “programs of study.” These, she explains, are “entirely elective patterns of courses, clinical offerings, and advanced work to build progression in the curriculum. They will provide advice for students and planning vehicles for faculty. The programs of study that we will launch initially are in law, science, and technology; law and social change; law and business; law and government; and international and comparative law. Others may well follow.” (The school offers more than 250 elective courses each year.)

“Given how much the legal world has changed since 1870,” says Kagan, “the need for change in legal education should be obvious. Law schools have been slow to change, not because they think the current curriculum is the best one, but because it’s been the easiest one.”

The adoption of these reforms follows a process that began soon after Kagan became dean in 2003. She made the curriculum a topic of conversation at the small dinners she held during her first year, to which eventually every faculty member was invited. “We pursued many settings for consultation—lunches, small groups organized by subject matter, regular faculty meetings,” says Minow. “We gave repeated updates to the faculty and developed a set of alternative proposals that were debated at a faculty meeting last spring, all before the vote this fall.” Minow’s committee had a shifting membership over a three-year period, but she and Kagan attended every meeting.

Among ideas considered but rejected, Minow says, were “concentrations” instead of programs of study in the upper years. They also considered moving one or more of the traditional required first-year courses out of that year or even out of the set of required courses. “We thought of combining the courses on contracts, torts, and property into one on the common law,” she notes. “In the proposal adopted by the faculty there is a directive to the deans to permit faculty who would like to experiment with collaborating across course lines to do so.”

The unanimous vote this fall was cast by about 70 percent of the 84 tenured or tenure-track faculty. “I think their unanimity,” says Elhauge, “reflects a combination of a long process of serious consultation in which faculty input was taken seriously and incorporated into the final creative proposal, a very collaborative attitude among the faculty where they were willing to sacrifice vested interests for the greater good, and an amazing level of confidence in how the dean would implement the necessarily general propositions we voted on.”