The legal community is keenly aware of the trend toward ever-increasing specialization in the legal profession. The trend has picked up steam every year during the past decade.
In 2007, futurist Jim Carroll prophesized that a dizzying array of specialties would continue to be developed: “Already highly stratified, we’ll see sub-specialties within specialties, and specialties within those specialties. The law will become so stratified that a hundred thousand professions will emerge in the profession of law.” (JimCarroll.com, “10 Big Trends in the Legal Profession,” June 12, 2007.) Futurists are fond of making sweeping statements like this, but there is no denying that the number of specialties continues to increase.
The challenge for law schools is to prepare our students to practice law in light of these and many other changes while not losing sight of either the foundational doctrines that have shaped many areas of law or the basic critical thinking, analytical, problem-solving and communications skills that make up what we mean when we say we are teaching students to “think like a lawyer.”
Most of us inherited curriculums that had been painstakingly refined over the years to educate generalists who could discover their practice preferences later, after they had been lawyers for a while and had a chance to try a few things out. When I became dean, I asked the faculty curriculum committee to investigate the possibility of our offering certificates in various fields, as is done at a number of other law schools. These certificate programs include a formal course of study within the curriculum that is analogous to a college major. They often require the student to produce a major paper or complete a capstone project. The idea is that by earning a certificate in a specialty, students will be able to demonstrate their commitment to specializing in that particular practice area while holding out the promise to potential employers that they have developed a level of expertise in it.
There is a lot to be said for this approach, both as a job-search credential and as a way to provide a thoughtful curricular structure for students who want to practice, say, environmental law, but are unlikely to know which of the many related courses they should take and in what order. At NDLS these offerings would include courses such as administrative law, biodiversity and the law, energy law, federal Indian law, international environmental law, land use law, natural resources law, scenic law and water law.
I was initially in favor of developing some certificate programs, but a benefit of faculty governance and control of the curriculum is that faculty members have a more grounded understanding of the challenges facing students than a dean might have. The faculty looked at the approaches of a number of excellent law schools and expressed concern that there can be an opportunity cost associated with committing to a rigid progression of required courses in order to earn a formal certificate. I have spoken to so many attorneys who ended up practicing in areas that bore little resemblance to the ones they were “sure” they wanted to enter when they started school. I enrolled in law school to become a union-side labor lawyer. Putting aside the irony that I ended up as “management,” my first summer job exposed me to American Indian law, an area of law so obscure at the time that only a small handful of schools even offered a course in it.
The faculty committee expressed concern that a too-narrow focus might prevent the kind of serendipitous moments experienced in a summer job, an externship, or a course chosen perhaps for what may seem like the “wrong” reason, such as a great teacher or even a hole in the schedule that has to be plugged. One of the happiest attorneys I know is a very successful government contracts attorney who took a particular course only because she needed a couple of credits, and that course changed her life. A certificate program that requires a certain number of credits might hinder a student from changing her mind as easily as my friend did. She may feel pressure to stick with her initial plan because it might be too late to “switch majors” and still earn a certificate.
Many law schools have tailored certificate programs to provide more flexibility, but these concerns still gave our faculty committee pause. The faculty also considered whether certificate programs could provide a significant boost to our graduates’ employment chances. After studying this question, the committee also became concerned that the creation of certificates at Notre Dame might implicitly promise our students more than the program could necessarily deliver – a position in that particular field of law. We learned from employers that they seek to hire the smartest and hardest-working law students they can find whose personalities and goals promise to be a good fit for their firm’s culture. Earning a certificate would not change that reality.
Ultimately, the curriculum committee recommended a path that incorporated what we most liked about certificate programs: the development of carefully thought-out curriculum recommendations for students interested in focusing their efforts in particular fields. But rather than offering formal certificates, which would require taking specific courses in a specific order, we opted to develop “programs of study.” Each of these programs includes recommended courses of study created by groups of professors who have volunteered to counsel students who are interested in the program’s particular field. In addition to recommending courses and seminars, the programs also recommend particular clinics or externships, and each has or is developing a capstone experience. We now have seven of these programs of study (in Business Law; Criminal Law; Environmental Law; Global Law; Intellectual Property and Technology Law; Law, Ethics, and Public Policy; and Public Law).
We remain ready to make adjustments to this approach as needed and will continually monitor the adequacy of our response to the specialization trend. So far, though, the results have been positive. Because we are a small community, we are able to provide personalized guidance to our students. They can choose from courses recommended by a program of study that interests them, but retain the flexibility to explore other courses and areas of law.•
Nell Jessup Newton is the Joseph A. Matson Dean and Professor of Law at Notre Dame Law School. She has served as dean since 2009. The opinions expressed are those of the author.