Harvard Law School's Curriculum Reform Bucks a Trend

JB

As legal scholarship became increasingly specialized and interdisciplinary, it consumed an increasing amount of time and attention of law professors, particularly the most ambitious professors seeking to make a name for themselves for their scholarship.

As a result, many law professors found that teaching traditional subjects that were not the primary focus of their scholarship became a burden. Because research and writing increasingly became the demarcators of status in the profession, this created ever greater pressures for the law school curriculum to match more closely what law professors were writing and studying in their research. Hence the proliferation of seminars on the one hand, and specialized upper level courses on the other.

This meant, among other things, that there were incentives for the most ambitious professors to spend less time teaching first year subjects, and, when they taught them, to spend very little time working on them or preparing for them. This tended to complicate hiring practices. For each first year required course, a law school had to make sure that there were a number of faculty who could teach it in any given year, given leaves and desires to shirk responsibility. And the larger the student body in the law school, the more slots the school had to reserve for first year teachers.

In other parts of the university, introductory courses are often taught by untenured professors, lecturers, or adjuncts. Most of these would not get tenure or even be considered for tenure, so there was always a fresh supply of new people to teach the courses that senior scholars didn't want to teach. But in law schools, most assistant professors still get tenure, and senior scholars must continually be recruited to teach the first year courses. Some people, like myself, enjoy teaching first year courses, but many others don't, regarding it as a nuisance that detracts from their scholarly responsibilities.

One way that Yale Law School solved the problem was to reduce the number of required first year courses-- there are now only four-- put them all in the first semester, and make Constitutional Law a required first year course. The result was that Yale could hire as many people who teach Con Law as it wanted, because they could take turns teaching first years.

And this brings me to Harvard's new initiative. Harvard already has to devote a very large number of professors' teaching assignments to the first year, precisely because the student body is so large. By adding a new set of required first year courses to the traditional ones, the school must find additional professors to teach these courses as well. If the new courses lie in senior professors' research interests, there is no problem. Thus, one of the new courses is International law, a field that increasingly attracts new talent. But if the new courses don't correspond to many professors' primary research interests, they create staffing problems. Many senior professors would rather teach something that is closely related to their research. Thus, the school has to get a large number of professors-- including senior professors-- to construct and learn how to teach new courses that don't closely correspond to what they write about.

This can work, but it takes considerable and sustained effort. You will have to (1) persuade senior faculty to divert time and resources away from their research interests and keep them involved and interested in the new courses, (2) hire new faculty who are devoted to working on the new courses, (3) substitute adjuncts or visiting faculty, or (4) use untenured faculty with little or no expectation of tenure.

Adding International Law to the first year curriculum is the most promising reform Harvard has instituted and the one most likely to succeed in the long run. The new course on Problems and Methods will be the most difficult to keep going on a sustained basis, because it does not seem to match any particular professor's research interests. The course on the regulatory state will fall somewhere in the middle, unless it morphs into a standard course on legislation or administrative law; in that case it would be fairly easy to get a stable of professors who research in these areas and who can teach the course on a regular basis.

At the same time, for every course added to the first year, I would consider subtracting one. The more required courses a school offers, the more difficult it is to staff those courses, and the greater the restrictions the curriculum places on recruitment and hiring of faculty doing cutting edge scholarship.

In any case, we should assume that the law school will learn from experience and adjust accordingly. This is a bold experiment by Harvard Law School. Let's hope it turns out well.