January 6, 2016

RICHARD POSNER: How To Fix Law School.

The first year of law school, usually so different from the student’s previous educational experiences, is bound to make a lasting, indeed a lifelong, impression.The first-year program at most law schools is demanding, though less than it used to be; current tuition levels tend to induce law schools to treat students more as customers than as plebes. I felt changed after my first year (1959–1960) as a student at the Harvard Law School—I felt that I had become more intelligent.The basic training was in learning how to extract holdings from judicial opinions in common law fields and how to apply those holdings to novel factual situations—in other words how to determine the scope and meaning of a legal doctrine.The courses were very difficult because the legal vocabulary was unfamiliar; the professors asked incessant, difficult questions, usually cold calling; the casebooks had very little explanatory material; and we were told not to waste our time reading secondary materials—and most of us were docile and so obeyed.That first year of Harvard Law School was active learning at its best.

We learned to be careful and imaginative readers; we learned that American law is malleable and relatedly that notions of public policy, and sheer common sense, were legitimate and important considerations in interpreting and applying legal doctrines.There were no references to systematic bodies of thought outside law, however, and statutes were rarely encountered and the Constitution never.The canvas broadened in the second and third years. But the courses in those years had much less impact on me, in part because the school tended to stack its best teachers in the first year, in part because a certain freshness had worn off, and in part because I devoted most of my time in my second and third years to the law review, which I found more interesting than most of the second- and third-year courses. But as I think back on those years I realize that another factor was that the common law really is the most commonsensical, intelligible, politically neutral body of American law, compared to which most of constitutional law, and most statutory law, are a muddle.


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