Niles, Russell D

English

Journal of Legal Education (Association of American Law Schools)

A GRADUATE PROGRAM FOR LAWYERSRUSSELL D. NILES*Some of my friends in other law schools have been amazed to leairn thatthere are in &he graduate division of the School of Law of New York Uni-versity more than 450 lawyers from fifty-five different law- schools, andthat these graduate students have been able to choose from among fifty-three I courses and seminars. Some of my friends have been apprehensivethat we might flood the market with young teachers; others have wonderedhow our program fits in with the plans of the American Bar Association andthe American Law Institute for the continuing education of the bar.2 Ac-tually, our program is not new; it has been evolving for sixty years. It isnot designed primarily to produce teachers, nor to keep practicing lawyersup to date. The program is unique in that it is designed for practicing law-yers and for recent graduates who wish to practice law. Much of the workmight more accurately be called advanced professional work than gradu-ate work. We may be less pretentious about advanced work than some ofour neighbors, but we take no "auditors"; all students must prepare theirassignments, present drafting or other exercises on time, and take examina-tions. Tnlike most post-admission programs, ours requires all students,whether senior partners or inexperienced young lawyers, to submit to aca-demic discipline.As stated in the announcement of graduate courses,The graduate curriculum is designed to serve the profession in anumber of ways: (1) to enable law-school graduates to broadentheir backgrounds in the law by studying jurisprudence, Roman andcomparative law, public law, and legal history; (2) to permit law-yers to specialize in fields in which there are great professional op-portunities, such as taxation, corporation law, estate law, labor law,administrative law and international law; (3) to train lawyers forgovernment service, especially in the administrative agencies; (4)to develop teachers, research workers, and legislative draftsmen.3Graduate work is an important part of the program of a law center asconceived by Dean Emeritus Arthur T. Vanderbilt,4 now Chief Justiceof the Supreme Court of New Jersey. Our graduate division has proved* Dean, New York University School of Law.1 Eight of these courses are offered in the Graduate Division for Training In PublicService or in the Graduate School of Arts and Sciences. All of the courses andseminars are described in the ANNOUNCEMENT OF GRADUATE COUnsEs which maybe obtained by writing to Alice J. Kassel, Secretary to the Committee on Grad-uate Studies, School of Law, New York University, 100 Washington Square East,New York 3, N. Y.2 Mulder, Continuing Legal Education, 1 J.LEGA ED. 378 (1949); Simpson, Con-tinuing Education of the Bar, 59 HAxv.L.RFv. 694 (1946).3 See note 1 supra.4 Vanderbilt, The Law School in a Changing Society: A Law Center, 32 A.B.A.J.525 (1946). See also his various Dean's Reports, especially for 1947-1948.590LAW SCHOOL DEVELOPMENTSa valuable laboratory for experimentation in new courses and new techniquesof instruction. A graduate program may furnish the answer to the questfor more time in law school,5 for there are many advantages in schedulingpart of a lawyer's formal training after he has had some experience in thepractice.The following report on our program may be of general interest becauseof the present awareness of the need for the continuing education of thebar. It is our belief that the law schools have a duty to the profession whichdoes not end with the granting of the LL.B. degree; that in the over-allpost-admission program there is an important role for the law schools toplay. In some ways New York University is in a favorable situation topioneer in this field: Washington Square is in the transportation centerof the greater New York area. Many of the best specialists in our professionlive in the metropolitan area. Lawyers from New Jersey, Pennsylvania, andConnecticut are within commuting range. But many law schools are lo-cated near large centers of. population and could offer similar programs.The Program of Courses and SeminarsIt may be of interest to note that some of the cultural courses are amongthe most popular. Professor Edmond Cahn's course in Jurisprudence isalways oversubscribed, and the course in Law and Society, given this yearby Professor Sidney Post Simpson and Visiting Professor Julius Stone, hascreated a great deal of interest, as has Professor Stone's course in RomanLaw. Many other courses, especially those in comparative and internationallaw, are taken by lawyers as a matter of general interest.The most popular and successful specialized program is in the field oftaxation. Students who have not had a recent course in taxation and wholack a familiarity with the Internal Revenue Code must take the basic coursein Federal Income Taxation. Other basic courses are Gift and Estate Taxa-tion and State and Local Taxation. The advanced courses are built on thesethree. At the next level are Tax Procedure and Advanced Income Taxa-tion. Then follow seminars in Federal Taxation of Corporations and Part-nerships, Problems in Corporate Income Taxation, Federal Tax Litigation,Tax Problems of the Fiduciary, Tax Penalties and Prosecutions, and LatinAmerican Tax Law. In addition there is supervised research in tax law,including editorial work in connection with the Tax Law Review. Thereare also available courses in Government Finance and Government FiscalPolicy. The program has been successful because we have been able to at-tract some of the most eminent scholars and practitioners in the field to par-ticipate in it.The corporation specialty is the next most popular. Most students startwith Dean de Capriles' justly famous course in Accounting for Lawyers.Other courses are Qrganizing Business Enterprises, Corporate Reorganiza-tions, Federal Regulation of the Securities Business, and Seminar on Corpo-rate Documents. Related are courses in Trade-Mark and Trade-Name Pro-tection, Trade Regulation, and Seminar on Problems in Trade Regulation.5 Hall, A 2-2-2 Plan for College-Law Education, 56 IARv.L.RIEv. 245 (1942),in which the various proposals for a four-year law course are discussed.1949]JOURNAL OF LEGAL EDUCATIONAnother specialization of increasing popularity is in labor law. In ad-dition to a basic course in Labor Law and Labor Relations, there are ad-vanced courses in Collective Bargaining and the Collective Bargaining Agree-ment, Management Functions under Collective Bargaining, Labor Arbitra-tion, Wage and Hour Administration, Social Security and Its Administra-tion, a seminar on the Taft-Hartley Act, and a research seminar on Prob-lems in Labor Law.The estate law specialty is in the process of evolution. In addition tothe courses in Gift and Estate Taxation and the Tax Problems of the Fidu-ciary, we offer a course in Decedents' Estate Practice and seminars in Es-tate Planning and Estate Administration. On the basis of our experiencein these courses we are now trying senior elective seminars in drafting.Our offering in international law is enriched by our cooperation withother graduate schools in the University in the Program of Studies in UnitedNations and World Affairs. Courses and seminars in the field include thebasic course in International Law and advanced courses in InternationalClaims, Legal Problems Arising under International Agreements, Consti-tutional Law of the United Nations, Treaty Making and International Leg-islation, and seminars on the Inter-American Regional System and on Prob-lems in International Law.The comparative law specialization has a double aspect. Through thecurriculum of the Inter-American Law Institute instruction is offered inthe common law on a comparative basis. Even here the objective is to trainpracticing lawyers, not scholars, so that Latin American lawyers upon theirreturn to their countries may deal with lawyers from the United States ona plane of mutual understanding. To common-law students courses are of-fered in Latin American Commercial Law, Latin American Civil Law andProcedure, Latin American Tax Law, Western European Commercial Law,and, of course, Roman Law.The field which will be most expanded next year is administrative lawand government control of business. At present we offer courses and sem-inars in Administrative Law and Comparative Administrative Law, andspecialized courses in Public Utilities, Housing Law and Administration,Trade Regulation, Trade-Mark and Trade-Name Protection, Copyright,Patent Law, and Patent Office Practice and Procedure. New seminars areplanned especially in Administration of the Food, Drug and Cosmetic Actand the Administration of the Anti-Trust Laws.Course MaterialsWe have had difficulty selecting materials for our advanced courses.Some of the courses available for graduate students are offered only becausemany graduate students did not have an opportunity to take such coursesduring their undergraduate days. For such courses there are traditionalcasebooks available. Many of our advanced and specialized courses havenot been given in other law schools, and it has therefore been necessaryto improvise teaching materials. Some instructors have used mimeographedmaterials extensively. Some have used professional texts, form books,codes, and regulations. Others have experimented with special editions ofprofessional services, especially in labor law, estate planning, and several[VOL. ILAw SCHOOL DEVELOPMENTStax courses. Most of the seminar courses, however, have been conductedby the problem method, so that students have been required to use the gen-eral resourbes of the library.Selection of StudentsSince our graduate students during the current academic year representsome forty-five law schools located in the United States and ten law schoolslocated in other countries, we have had substantial difficulty in selecting stu-dents and in arranging suitable programs. Naturally we ha- e found thatthese students vary considerably, both in ability and in the courses coveredduring their undergraduate program. Furthermore, some of our graduatestudents have had no practical experience, some have had general practice,and some have had only government experience or legal experience withinsome narrow specialty. 6 It is a severe administrative burden to interviewthese students and to arrange programs. Our greatest single difficulty hasbeen to get students in courses or seminars at the appropriate level. Moststudents, with the confidence that is typical of the profession, think thatthey are able to take advanced seminars before they have a sound and syste-.matic understanding of the basic field. On the other hand, an inflexiblesystem of prerequisite courses would force some students of maturity andexperience into courses which would be too elementary for them. Theonly solution is in patient, tactful, and firm administration. 7 Wehave had,by the way, some unpleasantness in the matter of restricting registration inadvanced seminars and also in the matter of requiring all students to takeexaminations. Some members of the bar have acquired too much dignityto undertake the hazards of a competitive examination..On Teaching SkillsWe have acquired substantial experience in teaching skills, and from ourexperiments in the graduate division we have been able to add courses tothe undergraduate program. Professor W. Barton Leach has expressedthe view that drafting problems should not be given to students unless theyare capable of doing a job of high professional quality. His argument isthat if a student is capable of doing only an imperfect or defective job, itis better for him not to do it at all. We have come to a contrary conclu-sion. Professor Cavers made an astute observation when he distinguishedbetween teaching students a lawyer's skills and teaching the skillful use ofthe lawyer's skills.8 We agree that it is not possible to teach undergradu-ate law students to be expert or artistic in doing the work a lawyer does,but it does not follow that we should not have skill courses in the undergrad-uate program. A senior, for example, who is required to draw wills andtrust instruments for imaginary clients may not learn to draw perfect in-63 Measured by the number of "points" of Instruction taken, over a third of ourgraduate students are full-time students; but on a head count the percentage wouldbe less because most part-time students take two or three years to complete therequirements for the LL..f. degree. lost of the courses are given in the late after-noon, the evening, or on Saturday.7 The graduate division is now administered by Associate Dean Miguel de Capriles,with the able assistance of Alice J. Kassel, Secretary to the Committee on GraduateStudies.8 Cavers, "Skills" and Understauding, 1 J.LEGA_,L ED. 395 (1949).1949] 593JOURNAL OF LEGAL EDUCATIONstruments, but he will learn a great deal of law. He will learn to use thestandard services and the form books. He will re-examine both statutoryand case law with a new interest. He will be forced to synthesize whathe has learned in several courses. He will have a new educational motiva-tion. Furthermore, he will develop a little confidence; we have very littleworry about his becoming overconfident. If he does not become skillful,he will develop an awareness which may later be converted into professionalcompetence. Drafting courses at this level have been transferred to thesenior year, -and we now have seminar courses in drafting trusts, wills,leases, and conveyances, and problem seminars in tax law, labor law, andcorporation law. We shall expect each senior to elect one of these skillseminar courses.In the graduate division we believe that we are making progress in learn-ing how to teach the skillful use of skills-although we have not alwaysbeen skillful about it. Our seminars in estate planning and estate admin-istration, the seminar in drafting corporate documents, and some of theadvanced seminars in taxation and in labor law are designed to develop acertain amount of professional expertness. Indeed, we feel justified in giv-ing the specialized degree of Master of Laws in Taxation and Master ofLaws in Labor Law as academic certification 9 of the special training ofthe graduate student.It might be that some of the courses involving professional skills could betaught in a summer session for graduate students and for students who havecompleted two years of law school work. It might be possible to have un-dergraduate students take one summer of professional work between thejunior and senior year in law school for credit toward a Master of Lawsdegree. Such a student would complete his work for the Master of Lawsdegree after graduation and preferably after some experience in the prac-tice. We plan to experiment along this line because we have reached thetentative conclusion that it is better to have students spend an extra yearfor the LL.M. degree than to have a required fourth year of law for theLL.B. degree. We prefer the LL.M. alternative because of its flexibilityand because we believe that some of the higher-level work should be givento students who have had some experience in the practice. We do not be-lieve that there is room in the conventional three-year undergraduate pro-gram for the type of practical work suggested by Judge Jerome Frank,1'but we think that a good deal can be done along the lines which he has sug-gested at the post-graduate level.On Integration of Law and Other DisciplinesThe graduate program has offered many opportunities for experimenta-tion in the integration of law with the social sciences. For example, thestudents who are specializing in the law of taxation have been encouragedto take a course in Public Finance or in Government Fiscal Policy in theGraduate School of Business Administration or in the Graduate School of9 Cf. Kegan and Melchior, Certification-A Proposal to the Bar, 42 ILL.L.fnv.413 (1947).10 Frank, A Plea for Lauwer-Schools, 56 YALE L.J. 1303 (1947). Of. Simpson andField, Social Engineering Through Law: The Need for a School of Applied Jurs-prnience, 22 N.Y.U.L.Q.IlEv. 145, 184 (1947).[VOL. 1LAW SCHOOL DEVELOPMENTSArts and Science. We feel, however, that it would be better to have acourse on tax policy given at a high lever by a lawyer who is also sophis-ticated in matters of public finance. Since our tax faculty includes menwho have bad a good deal of experience in forming tax policy, we believethat several of the seminar courses now contain a happy fusion of tech-nical and policy problems. Our program in labor law has been enrichedby some advanced courses in the Graduate Division for Training in PublicService and in the Graduate School of Artsand Science. We hope nextyear to have some courses offered in the Law School by professors fromother departments. The advantage would be that all of the students wouldbe lawyers. The courses should therefore have a sharper focus.The courses in criminal law and welfare law offer the ideal opportunityfor integration of the various social sciences with law. In addition tocourses on Criminal Procedure and Problems in the Administration of Crim-inal Law, we have seminars on Legal Problems in Penology and on Social-Penal Legislation. We have an advanced course on Separation, Annulment,and Divorce, and plan further experiments in cooperation with the grad-uate faculties and with the College of Medicine, especially in the psychiatricfield.On the Economics of the Graduate ProgramA graduate program such as the one outlined above is necessarily ex-pensive. Since the enrollment in some of the advanced seminars must berestricted, it is impossible to make the program self-sustaining. If the prac-ticing lawyers who give the high-level courses were paid at the rate of full-time professors, the cost would be ruinous. The program requires moreseminar rooms and small classrooms than are available in most law schoolbuildings. In our new building we are planning more seminar rooms than-classrooms because of the peculiar needs of our graduate offerings.The burden on the library is very great because students in most of theadvanced courses and seminars have no casebooks and must therefore usethe general library. It is necessary to buy and maintain many professionalservices. In our new building we have adopted the plan of multiple li-braries, with several collections of the standard materials. We have in ad-'dition provided, for 135 carrells or study cubicles off the air-conditionedstacks. The carrells are not exclusively for the use of graduate students,but will be available for any students who are engaged on research work andwish to leave their materials undisturbed.ConclusionThe graduate program is expensive, it is difficult to administer, it takesa good deal of the time and energy of our best people, but it is in ourjudgment worth the cost and the effort. There are many, advantages in hav-ing advanced law students who have had some practice and who approachtheir work with quite a different background and a different point of viewfrom that of the undergraduate students. There is unquestionably a greatdemand for this type of program. We believe that other law schools, espe-cially in metropolitan areas, should carry on similar experiments. We shouldbe very happy to exchange information with others who may be interestedand to make recommendations about the curriculum or about individualcourses or seminars.1949]

A Graduate Program for Lawyers

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A Graduate Program for Lawyers

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Journal of Legal Education (Association of American Law Schools)