by Thomas G. Rozinski, Assistant Professor and Prelaw Advisor at Touro College
There are no required undergraduate courses for applicants to law schools in the United States. Indeed, the American Bar Association statement “Preparing for Law School” recommends no specific undergraduate courses for students who intend to pursue a legal career.
Most law schools’ websites either track this advice or remain silent on the subject. For example, Harvard Law School has no required courses, and emphasizes broad undergraduate study and theoretical over practical courses. Touro Law School advises only that “Courses should be chosen which provide a broad base of knowledge and enhance logical and analytical reasoning skills.” NYU provides even less guidance:
Admissions committees presume that you will spend sufficient time studying "law" while in law school, and they prefer that the undergraduate years be used to acquire a broad field of general knowledge upon which legal studies can be based. Similarly, most law schools actively discourage students from taking too many law-related classes as undergraduates.
Statements such as these suggest not only that the study of law is not easily integrated into a student’s post-secondary education, but also that law schools offer a unique and special type of learning that should not even be attempted outside of the law school environment. Learning the law in law school is evidently so self-contained that there is no advantage in knowing any law prior to entering law school. When asked why law schools do not require undergraduate courses in law, admissions officials have told me students from all majors have done well, and that there is no set of prelaw courses that will reliably improve an entering student’s performance in law school. I have also been told that law schools fear requiring specific courses will scare away potential applicants who have not taken them. A third reason I have heard is that law schools are afraid that legal subjects may be poorly taught by non-lawyers, so that entering students who have taken these courses will have much to unlearn before they can learn law the law school way. As a prelaw advisor to numerous law school applicants, I believe that the failure of law schools to require or even recommend any specific prelaw courses denies undergraduates the guidance they need to optimize their preparation for law school.
The disjunction between undergraduates’ desire to aggressively prepare for law school and the law schools’ passive attitude toward preparation is demonstrated by the growing success of commercial law school prep programs as such as Law Preview and Kaplan Edge. Founded in 1998, Law Preview is a week-long summer “boot camp” directed at students planning to matriculate at law school a month or two later. In 2010, it attracted over 1200 entering law students. Law Preview students spend $1000 or more to listen to lectures on contracts, torts, and property (6 ½ hours each), and 4 hours each on civil procedure, constitutional law, and criminal law. These students also receive 8 hours of instruction in law school study and exam-taking skills, and can enroll in an optional legal research and writing program. The lectures are given by a variety of law school professors, many of whom have received law school teaching awards. Law Preview claims that their median student is in the top 20% of his or her law school class.
Kaplan’s 1L Edge is primarily an on-line program that provides students with access to seven 3-hour taped “workshops” on law school study methods, outlining, exam taking, and legal writing. I was told in a 2012 phone interview with Michael Power, Director of Institutional Programs at Kaplan, that Kaplan also offers a one-day live program in six major cities including New York, Boston, and Washington, DC. It also provides students with on-line access to 30 hours of taped lectures on a variety of first year courses, which are prepared by law school professors. Students also receive six outline books for standard first year courses, and discounts to bar preparation courses. The cost is far less than Law Preview--only $100--because all instruction is online. Kaplan makes no claims as to whether students who take the 1L Edge program will do better during their first year in law school.
These classes might be dismissed as products that exploit entering law students’ paranoia, except for one important fact: Law Preview gives a $100 discount to students from about 40 different law schools, including such top ten schools as Stanford, Columbia, NYU, California-Berkeley, and the University of Virginia. Some of these law schools find this program so valuable that they subsidize the attendance of their future students. Furthermore, numerous public interest foundations and law firms provide scholarships to “diverse students” who enroll in Law Preview, which indicates they also find attendance at this pre-law school program valuable (told to me in a telephone interview with Don Macaulay, President, Law Preview, on June 21, 2012).The ABA statement denies the value of these programs by suggesting that students will not benefit significantly from gaining specific legal study skills before they enroll in law school.
I believe that undergraduates who follow the ABA’s advice will often be at a significant disadvantage when they start their law school classes. This doesn’t mean they won’t be able to catch up by the end of their third year. But it does mean that they are less likely to do well during their first year and, for law school, the first year is the most important year. First-year grades often determine which students will receive coveted summer internships and judicial clerkships. Students well-prepared to succeed in law school are most likely to take advantage of these opportunities and will be best positioned to secure a good legal job before graduation. Poorly-prepared students are less likely to do well their first year in law school, and may spend their first several months after graduation both frantically searching for employment and studying for multiple bar exams in states where they hope to work.
The starting point for my discussion of prelaw preparation for law school is the ABA statement “Preparing for Law School.” This ABA statement prescribes no specific major or set of courses, recommending only that prelaw students acquire vague skills and values such as “critical reading abilities,” “analytic/problem solving skills,” “writing skills,” “oral communication and listening abilities,” and “general research skills.” The ABA statement’s lack of specific advice suggests that undergraduates will derive little benefit from trying to develop skills that will help them succeed in law school. It reads as if it were the product of a committee compromise representing a minimal consensus, rather than an attempt to provide prelaw students with genuine advice on the best way to prepare for law school. I believe that the ABA statement would be far more helpful if its vague platitudes were replaced by more specific recommendations. This paper represents my attempt to distill specific skills from the statement’s “Core Skills and Values.”
The ABA statement claims “The particular nature of the materials examined is not crucial; what is important is that law school should not be the first time that you are rigorously engaged in the enterprise of carefully reading and understanding, and critically analyzing, complex written material of substantial length.” While this is good general advice for students planning to attend any type of graduate school, it fails to recognize that future law students will benefit from prior exposure to the specific kinds of reading and analysis they will encounter in law school. Most law school assignments involve reading and discussing excerpts from appellate cases and law review articles. The form these readings take is substantially different from what most undergraduates are used to reading. Since most law school classes rely on the case method, entering law students who are familiar with reading and discussing cases will find it easier to adjust to their new workload. Almost all of the law students I informally surveyed strongly agree that they benefitted from reading cases as an undergraduate. The ABA statement creates the false impression that gaining this experience is not relevant to success in law school.
Learning to read law cases is not easy, and students cannot expect to become legal experts by reading two or three dozen Supreme Court cases while in college. However, gaining this experience does allow future law students to begin to discern the patterns of how judicial opinions are written, how existing law is characterized, and how received law is modified when it is applied to the facts. When judicial opinions are discussed in undergraduate classes, students gain an opportunity to test their understanding of what they have read and can begin to develop case-reading skills that will help them succeed in law school. They also learn that many legal opinions are poorly written, and that reading cases requires a different level of attention than a history book or a novel. This exposure will allow them to develop insight as to whether they really want to read opinions regularly for three years of law school, and likely for the length of their legal careers.
Law students also immerse themselves in a second type of legal literature: law review articles. Unlike academic publications in other fields, these articles are usually student-edited works that were selected by upper-level law students for publication. They tend to be heavily footnoted and are often quite lengthy. Nevertheless, they are the primary scholarly publications of legal academics, and students are sure to encounter many of them in law school. First year law students begin by reading short excerpts from law review articles printed in their first year casebooks. They see them in full form in advanced courses and as they research papers for their classes. Reading a few law articles will give prospective law students a taste of how knowledge is transmitted within legal academia. The peculiar nature of law reviews as distinct from other academic publications means that aspiring law students are likely to benefit from exposure to this genre of writing prior to entering law school.
The ABA statement claims, “Good legal education will teach you to ‘think like a lawyer,’ but the analytic and problem-solving skills required of lawyers are not fundamentally different from those employed by other professionals.” I’m sure there are several legal analogies to problem-solving methods used by doctors and engineers, but this does not obscure the fact that there are significant differences between the way these professionals seek answers and the methods used by lawyers in a common law legal system. Scientific problem-solving usually assumes a degree of truth that does not exist within a legal system. The laws of the physical world are far more binding than a Supreme Court holding. The answers that lawyers give to their clients are usually predictions of what courts are likely to say when confronted with legal questions, rather than statements of scientific fact. In making these predictions, lawyers must often take into account social and political considerations that are absent when doctors or engineers propose or report on solutions to problems. The role of precedent also differentiates the way lawyers solve problems from the way other professionals seek answers.
The ABA statement suggests that when undergraduates develop problem-solving skills, the subject matter of the problems they confront does not make much of a difference. I disagree. I seriously doubt that a person trained as a biologist or psychologist or computer scientist can understand how law is interpreted and applied as well as someone who has been given legal problems to solve. Reading cases that take contrary positions on legal issues and attempting to reach a conclusion about how a court would reconcile these precedents helps undergraduates develop an understanding of how legal decisions are actually made. Undergraduate exposure to legal methods of problem-solving provides a taste of the life of a lawyer that they will not get through solving physics problems or applying econometric analysis to statistical data.
Interpreting judicial opinions and applying them to specific issues also requires a different approach than understanding problems in the natural and social sciences. Undergraduates are taught to seek the truth, or as close an approximation as is possible, by approaching problems with an open mind, fairly evaluating the evidence according to standard criteria of accuracy, and reaching the conclusion that most approximates the truth. In contrast, law students are taught that many contested legal issues have no right answer, and that the answer generated often varies with the interpretive method that is chosen. In the common law system, law students are taught to be advocates, so that the outcome they seek is a function of whom they represent.
This shift in perspective, coupled with the need to analyze factors not present in many forms of academic investigation, often proves challenging to undergraduates. Trained to seek the truth, undergraduates may be resistant to the demands of a legal system that values client interest over objectivity. Some students are uncomfortable subordinating the quest for truth to the desire to win, preferring to keep an open mind while they look for the right answer. Other
students prefer the dichotomy of a legal system with winners and losers, and adapt easily when asked to explain why a particular side should win. Both groups of students would benefit from seeing how solving legal problems differs from solving other academic problems, which is why the ABA’s advice fails to provide adequate guidance for prospective law students.
The ABA statement encourages undergraduates to develop writing skills. Because “[l]egal education will provide you with good training in writing, and particularly in the specific techniques and forms of written expression that are common in law,” the ABA concludes that undergraduates will benefit from acquiring and refining general writing skills. This emphasis on writing represents a change in the educational philosophies of law schools, which as recently as
two decades ago devoted relatively little time and money to teaching their students how to write. When I was a first-year law student at Harvard in 1982-83, my legal writing course was taught by a second-year law student whose principal qualification for appointment was that her grades weren’t high enough for her to make law review. While the quality of legal writing instruction at Harvard—and most law schools--has improved since then, legal writing remains the lost child of the first-year law curriculum, often denigrated by professors who teach “real” law courses and deans who pay legal writing instructors far less than “real” professors.
I agree with the ABA’s recommendation that prelaw students should develop good writing skills while they are undergraduates. Once in possession of these skills, they can adapt them to the specific form of writing taught in law school. However, the ABA statement ignores another type of writing that law students need to master if they want good grades, a type of writing that few law schools take the time to teach. This skill is learning to write good answers to issue-spotting questions on exams. While most undergraduate exams test mastery of knowledge through objective questions, law school exams usually focus on testing students’ ability to solve hypothetical legal problems. According to Getting to Maybe, a popular book on succeeding in law school, “The typical [law school] exam will tell a story that presents some sort of hypothetical dispute. . . . The question then asks you to identify (or “spot”) the issues that would have to be resolved if the dispute became a lawsuit.”
Mastering the skill of answering issue-spotting questions takes practice. An “A” answer values successful identification of potential controversies more than the definitive resolution of those controversies. While most law school classes base the entire semester’s grade on one end-of-term exam, professors rarely provide students with instruction in answering issue-spotting questions or detailed analysis of their performance on practice questions. At Fordham Law School, for example, the sole method of teaching students to write good issue-spotting answers is a one hour panel discussion by Law Review members (according to Joe Amsel, a member of the Fordham Law School, Class of 2014). Furthermore, since most law school exams are never returned, students receive no feedback about their examination technique, just a single letter that could mean (among other things) that they wrote good answers but demonstrated a lack of knowledge of the subject, or that they seemed to know the subject but had difficult identifying and explaining the issues presented by the hypothetical.
The failure of law schools to teach this skill means that undergraduates who master the art of writing answers to issue-spotting exams are likely to have a significant advantage over students trained to do well on multiple-choice, short answer, and essay questions. Future law students can benefit from seeking out courses taught by professors who regularly include issue-spotting questions on their exams. They can also benefit from soliciting comments on their exam-taking technique from the professors who offer such exams. Developing this skill will reap rewards not only on law school exams but also on state bar exams, which usually include similar types of questions. The ABA statement is conspicuously silent on the need for students to develop this skill in preparation for success in law school.
The ABA statement also urges undergraduates to develop the “ability to speak clearly and persuasively” by “engaging in debate, making formal presentations in class, or speaking before groups.” Presumably, developing these skills provides a base of experience for future law students who will be trained in law school for the “forms and techniques of oral expression that are most common in the practice of law.” The ABA statement expresses no preference as to the type of training future law students should seek, unless you interpret its listing of debate as the first oral communication skill as an indication of its priority as higher than other skills on the list. Here again, I believe that the ABA’s recommendation that undergraduates acquire communication skills is too vague to give adequate guidance to those seeking to optimize their undergraduate preparation for law school.
There are no law schools that I know of that offer courses in oratory. This is because in the United States public legal communication takes a dialogic form that involves extended interaction between multiple speakers. The most well-known example is the oral argument that takes place before appellate judges, in which attorneys must often interrupt their prepared remarks to answer questions from the bench. Lawyers in publicized cases often take questions from the press, and their ability to deliver effective “sound-bites” may influence public opinion and indirectly affect their clients’ chances in court. Lawyers seeking business often give presentations to potential clients that involve responding to detailed questions as well as commenting on statements made by rival law firms. All of these situations require the ability to think quickly and provide coherent and persuasive extemporaneous answers. Developing these legal practice skills builds more on skills learned through extemporaneous speaking and debate than through skills acquired through other forms of public speaking, such as oratory or dramatic interpretation.
While debate is offered as an extracurricular activity at many undergraduate institutions, it is far less likely than public speaking to be the subject of a credit-bearing course. Students seeking communication skills more akin to those emphasized in law school may gain better preparation for law school by choosing courses that involve oral presentations with extensive questions, or competitive exercises such as moot court or classroom debate. The opportunity to acquire such experiences will help them overcome stage fright and make them more conscious of ways in which they can build on their oral argument skills in the law school environment.
The ABA statement recommends undergraduates engage in general research projects, specifically undertaking projects that “require significant library research and the analysis of large amounts of information obtained from that research.” There is no mention of any benefit from gaining practical experience in conducting legal research; that is a skill taught in law school. This omission might cause no harm if entering students never engaged in legal research, but today many enter law school after working in jobs where they have gained expertise in conducting such research. Students with no experience in legal research will start law school at a disadvantage to these classmates, a fact that the ABA statement fails to recognize.
The availability of free commercial databases such as Cornell’s Legal Information Institute and Findlaw.com means that legal research opportunities are free and accessible to all, even outside of an academic environment. Undergraduates contemplating law school can learn much from investigating legal topics through these sites. Even if their search methods are primitive by law school standards, they will have the opportunity to explore an academic discipline that at most colleges they cannot major in or take more than a few token courses in. They may even find they like researching legal topics, and through this they may discover subjects for law review notes and research papers. There is much to be learned from examining legal topics via the Internet, and the ABA statement should at least acknowledge that doing so is likely to be of benefit to future law students.
Now we turn to the question of how prelaw students can best attain the five specific skills that meet the objectives of the ABA statement. My thesis is that most or all of these skills are taught in political science courses offered at most American colleges, and that these skills are more likely to be taught in political science courses than in those offered by other liberal arts departments.
The first skill I identified is reading cases and law review articles. These skills are most likely to be cultivated in undergraduate courses on constitutional law and civil rights and civil liberties, which are usually taught in political science or legal studies departments. Advanced courses on the judiciary often incorporate such reading, as do some courses on American government. Other departments that might also ask students to read cases are history, sociology, business, and criminal justice. However, courses in the latter two departments often focus more on the holdings of cases than on case reading, which means that they may not provide students with the case reading experience they need for law school. My Touro students have told me they were familiar with legal cases from having taken Business Law I & II, yet the text for those courses provides only a few small excerpts from judicial opinions. Reading about the law is not the same as reading the law.
Law review articles appear rarely in undergraduate syllabi, perhaps because the intended audience is legal academics rather than undergraduates not trained in law. Yet top prelaw seniors may find themselves editing law review articles within two years of graduation while they serve as staff members of law reviews. Courses in political science are more likely than other disciplines to include law review articles. Obviously, this varies between schools as well as between professors, and prelaw advisors who know the syllabi of law-related courses can give more specific guidance to students seeking to optimize their law school preparation.
The second skill I identified is resolving problems of legal interpretation. This is gained through close reading and discussion of the legal principles that appear in judicial opinions. Once again, such skills are usually cultivated in courses on constitutional law and jurisprudence, which are typically offered by political science departments. While other departments may use case studies, the skills of interpreting and applying legal opinions are what future law students need to learn. Discussion of public policy or business school cases may promote analytical skills, but not the type of analysis commonly used in most law school classes.
The third skill that future law students can develop as undergraduates is answering questions on issue-spotting exams. Unlike the first two skills, this need not be developed by taking classes in political science, although they may be often found in courses taught in that department. Instructors in a wide variety of disciplines can write exams that ask students to identify problems and discuss ambiguities that would affect the resolution of such problems. However, even professors teaching different sections of the same course often have different approaches to assessing students, so that while some give issue-spotting exams others ask more general essay questions. Prelaw students should not assume that the techniques needed for “ace”-ing essay questions easily translate to “ace”-ing law school exams. Knowing which professors are likely to give issue-spotting exams will help pre-law advisors aid students in acquiring the skill for answering such questions.
The fourth skill helpful to future law students is interactive argumentation and debate. Few schools offer classes in debating per se; those that do are likely to offer them through the communications department. If there are no classes in debate, students can gain these valuable skills through courses that incorporate debating or interactive oral exercises such as student presentations with questions. These can be found throughout the curriculum; political science is not the only department where these exercises can be found. Within the political science curriculum, courses on constitutional law or criminal justice often lend themselves to debating. This is also true of courses as diverse as comparative politics, public policy, and political theory. Once again, prelaw advisors need to know the details of undergraduate courses in order to best advise students seeking to gain these skills in preparation for success in law school.
Unlike the other skills identified here, the ability to argue well in public is a skill that can be acquired through joining extracurricular programs such as debate, extemporaneous public speaking, model student congress, model United Nations, and even mock trial. These programs often provide good preparation for law school activities by giving students practice in research, constructing and defending arguments, and thinking on their feet in front of an audience. Prelaw advisors should become aware of the programs available at their schools as well as the rigor with which they are conducted. Some debate teams operate informally without faculty participation, while others involve rigorous instruction in research and argumentation by debate coaches. The same is true with model student congress/United Nations and mock trial. Some programs allow students to compete on an intercollegiate or international basis, which often makes them more attractive to students who question why they should spend their free time doing academic-type work.
The fifth skill that is likely to prove beneficial to undergraduates is conducting legal research. This is a skill that is also most likely to be acquired through political science classes in constitutional law as well as in classes on criminal justice. Lexis-Nexis and Westlaw are the two most widely-used legal research databases, and many colleges have subscriptions that allow students to use them for academic purposes. These are the same databases that law students are trained to use, and becoming familiar with their basic features will help undergraduates who aspire to law school. However, not all classes in these fields teach their students how to use these research materials, or incorporate legal research into classroom or writing assignments. This is once again an area where familiarity with undergraduate courses will aid prelaw advisors in suggesting which courses are most likely to provide students with legal research opportunities.
To summarize, then, the ABA statement “Preparing for Law School” provides inadequate guidance for students intent on using their undergraduate years to optimally prepare for law school. However, there are several specific skills that meet the general objectives of the ABA statement and also provide students with clearer guidance as to skills they should acquire in order to be adequately prepared to succeed from day one of law school. Three of these skills—reading cases/law reviews, resolving problems of legal interpretation, and conducting legal research—can best be gained through courses typically offered in political science departments. The other two skills—answering issue-spotting questions and interactive argumentation—can be gained through courses in a variety of disciplines, usually including political science. This does not mean that prelaw students should major in political science, although more law students choose political science than any other major. However, it does suggest that students seeking the best preparation for law school will benefit from taking political science courses that provide them with many of the skills important for success in law school.