Doug Berman's Advice for Erwin Chemerinsky: Reengineer the 1L Curriculum

Continuing our series of responses from various legal luminaries to the question:  What is the single best idea for reforming legal education you would offer to Erwin Chemerinsky as he builds the law school at UC-Irvine?

Douglas Berman (William B. Saxbe Designated Professor of Law, Ohio State University, Moritz College of Law; Editor, Sentencing Law & Policy blog):

I urge Dean Chemerinsky to consider reengineering the first-year curriculum. The first year of law school is, for nearly all law students, the most memorable and often the most consequential year of schooling they ever experience. And yet, the basic structure and content of the the first-year curriculum has not been critically reassessed or even seriously reconsidered in over a century.

A rigorous assessment of the status quo might prompt the development of a whole new first-year program updating the study of law for the 21st century. As a matter of substance, I fear that the traditional first-year curriculum gives students the false impression that common-law doctrines and court-centric adversarial analysis is central to the work of every modern lawyer. As a matter of style, I fear that the traditional large 1L class environments and in-class timed exams unduly reward aggressive talkers and fast writers.

I do not view the traditional 1L curriculum as entirely broke and needing radical reconstruction. In fact, I would expect that, after extended review and reflection, Dean Chemerinsky and others might decide to preserve many features of the traditional first-year curriculum. But for a professional schools that frequently espouse the virtues and values of diversity, the traditional first-year program tends repeatedly to deliver and test the same sorts of (caselaw) materials in the same sorts of (in-class) ways. Instructional diversity seems to me to be as important as institutional diversity.

I suspect a fresh approach to the first-year curriculum might include more hands-on problems, more research and writing assignments, more focused study of those institutions and individuals shaping legal doctrines and greater exposure to all the lawmaking and lawyering that take place outside of courtrooms. Ultimately, right now it is not easy to imagine what a truly modern 1L student would study because law schools, which are surprisingly conservative when it comes to curricular reform, have rarely tried to chart a new path for the first year of legal education. It would be beneficial to the entire profession, and as well as to the students who start at UC-Irvine, if Dean Chemerinsky looks forward and not backward when developing his new school's first-year curriculum.