Loyola Consumer Law Review

Volume 5 | Issue 1 Article 3

1992

Attention Consumers of Justice: Court ReformShould Begin in the Classroom Part IIJohn W. CooleyPrivate practice attorney, Evanston, IL

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Recommended CitationJohn W. Cooley Attention Consumers of Justice: Court Reform Should Begin in the Classroom Part II, 5 Loy. Consumer L. Rev. 4 (1992).Available at: http://lawecommons.luc.edu/lclr/vol5/iss1/3

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Attention Consumers of Justice:Court Reform Should Begin in the ClassroomPart II

by John W. Cooley "[T]he country has outgrown our present judicial system."President Lincoln, 1861'

"[T]he present impact of the caseload crisis on the federal courts...is serious now, but it threatens to become even more so."

Chief Justice Rehnquist, 19922

John W. Cooley is a former United Statesmagistrate in Chicago. He is presently inprivate practice in Evanston, Illinois; anAdjunct Professor of Law at LoyolaUniversity of Chicago Law School; amember of the Dispute ResolutionColloquium, Dispute Resolution ResearchCenter, Northwestern University'sGraduate School of Management; and heserves as an arbitrator, mediator, andconsultant in dispute system design.

INTRODUCTIONOver the last century, well

intentioned court reformers have suc-ceeded in creating ajudicial machine ofFrankenstein-monster proportions. Itis not likely that any of the latestreform proposals, just as those whichpreceded them, will guarantee a morespeedy and less expensive civil justicesystem. The problem is that we havebeen working on solving the wrongproblem. We see only the symptoms ofa disease in the dysfunction of our civiljustice system. The disease we need tocure is not in our system of litigation,but rather in our system of education.

Part I of this two-part article de-scribed some ideas for court systemdesign generated by undergraduate se-niors in a dispute resolution coursewhich I taught at Northwestern Uni-versity in the Fall of 1990.1 In Part IIof the article, I will review the historyof court reform in this country as wellas the most recent suggestions for re-forming the civil justice system. Then,I will explain why the best way toreform the American court system is toreform the American legal educationsystem.

I. TWO HUNDRED YEARS OFJUDICIAL REFORMIn response to complaints about the

civil justice system, specific effortshave been made over the last two cen-

turies to improve the delivery of civiljustice in our federal court system. TheConstitutional Convention adoptedArticle III of the Constitution requir-ing that the "judicial power of theUnited States,... be vested in onesupreme court, and in such inferiorcourts as the Congress may from timeto time ordain and establish."4 Recog-nizing the chaotic state of the Englishsystem ofjustice in the seventeenth andeighteenth centuries,' after which thecolonial and state systems were mod-eled, the First Congress enacted theJudiciary Act of 1789. It created asystem of lower federal courts to func-tion alongside the courts already estab-lished in each state.6 The design con-sisted of three levels of federal courts:the Supreme Court, composed of achief justice along with five associatejustices; eleven circuit courts, consist-ing of two Supreme Court justices andthe district judge from the state inwhich the circuit court was sitting; andthirteen district courts, each with itsown district judge.7

A. Organizing the Expanding CourtsHistorically, the period between

1789 and the Civil War was one ofunprecedented expansion of the federalcourt system. Both the number ofstates and the number of U.S. territo-rial possessions increased.' Also dur-ing this period, the number of circuits

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and the number of Supreme Court(circuit riding) justices increased. 9 By1861, a growing sense of frustrationwith the ineffectiveness of the federalcourt system influenced President Lin-coln to warn dramatically in his firstmessage to Congress: "[T]he countryhas outgrown our present judicial sys-tem."10 Afterward, a slight restrictionon the circuit-riding obligations of jus-tices brought temporary relief. But astime passed, case overload swelled andthe federal court system's ability torespond to it deteriorated.I1

In 1875, Congress adopted anotherJudiciary Act, which established gen-eral federal question jurisdiction in thefederal trial courts for cases involving$500 or more. Federal question juris-diction allowed the federal courts to trycontroversies arising under the consti-tution and laws of the United States

... [W]e have been working onsolving the wrong problem. We seeonly the symptoms of a disease inthe dysfunction of our civil justicesystem. The disease we need tocure is not in our system oflitigation, but rather in our systemof education.

and, as a result, federal court filingsmushroomed. 2 Numerous proposalsto revamp the court system were ad-vanced during this period, but theyresulted only in tinkering with the num-ber, size, and terms of the federalcourts. Federal trial courts were inun-dated with case filings; the number ofcases on the Supreme Court's docket(1,816 cases by 1890) meant, for prac-tical purposes, that most trial courtdecisions were unreviewable. 3

The bench, bar, and legislature wereunable to discover an effective schemeof court organization. Of the manyproposals considered, some of themcurious measured by today's think-ing, 4 the one to emerge successful wasan idea to create an intermediate court

of appeals. The Circuit Court of Ap-peals Act of 1891 eventually gave thisproposal life, creating a circuit court ofappeals for each of the nine circuits. 5

In essence, the 1891 Act shifted theappellate caseload burden from theSupreme Court to the courts of appeals,thereby making the federal districtcourts the system's primary trial courts.While the Act did not abolish circuitriding specifically, it made circuit riding"optional," allowing a judicial anach-ronism to disappear quietly. The Act'sfavorable impact on the SupremeCourt's workload was almost immedi-ately obvious. New filings totaled 623in 1890, fell to 379 in 1891, and to 275in 1892.6 On paper, the Act seemed tohave solved the Supreme Court's over-load problem. In actuality, the Actsimply created another tier of the judi-cial machinery - the federal courts ofappeals - which would be strainingunder extreme overload about a cen-tury later. As the twentieth centurydawned, a new spirit of court reformwas in the wind.

B. Reform at the Turn of the CenturyIn 1906, a young lawyer from Ne-

braska named Roscoe Pound, struckthe spark that some say, "kindled thewhite flame of progress" for the civiljustice system. 7 He delivered an ad-dress at the American Bar Association's("ABA") annual meeting entitled: "TheCauses of Popular Dissatisfaction withJustice." Pound believed that the causesof popular dissatisfaction with the courtsincluded an archaic system of courts,outmoded court procedures, wastedjudicial power, and the politization ofthe courts. These existing conditions,he believed, had almost destroyed thetraditional respect for the courts. 8

Conservatives viewed Pound'sspeech as a drastic and unjustified at-tack which was initially "decently bur-ied."' 9 In a short time, however,Pound's ideas began to spread. In1909, the ABA's specially appointedcommittee issued a report discussingthe concept of court unification andrulemaking. The ABA failed to en-

dorse the report. Partially in responseto this event, the American JudicatureSociety ("AJS") was formed in 1913and came to the forefront of courtreform.2" By 1916, the ABA, under thepresidency of Elihu Root, had changedits direction and began to support thecauses for which AJS was striving.2'During the 1920s and 1930s, courtreformers seemed most occupied withcourt rule-making and organizing caselaw. In 1921, Herbert Harley, founderof the AJS, became secretary of theConference of ABA delegates and theABA began to focus seriously on courtreform.

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In the same time frame, Chief Jus-tice Taft, noting the tendency of eachfederal judge to insist on exercising hisown methodology, succeeded in estab-lishing the Conference of Senior Cir-cuit Judges in 1922 (later, in 1939, to

In actuality, the Act simply createdanother tier of the judicial machinery- the federal courts of appeals -which would be straining underextreme overloadabouta centurylater.

become the Judicial Conference of theUnited States) to facilitate and coordi-nate rule-making and to assist in themanagement of the business of thecourts. 23 In 1923, the American LawInstitute was founded for the primarypurpose of codifying American caselaw.24 These rule-making efforts cul-minated in the mid and late 1930s withCongress passing a law in 1934 em-powering the Supreme Court to revisethe federal rules, and with the adoptionof the Federal Rules of Civil Procedurein 1938.1 Also, one year later, Con-gress created the Administrative Officeof the United States Courts and enactedvarious changes relating to the man-agement of the federal court system.26

In 1940, court reform attentionshifted to the state court systems. It

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was in that year that Roscoe Poundpublished a treatise on court reformand suggested several state court re-form goals, including: consolidation ofcourt structure and jurisdiction, sim-plification of court procedures, meritselection, centralized court administra-tion under a supreme court, profession-ally trained court administrators, and aunitary court budget.17 For almost twodecades following World War II, thecourts, in large measure, continued intheir "time-honored, but often dys-functional, methods and proceduresvirtually without examination or chal-lenge.""

C. Burger Renews ReformThen, in 1969, Warren E. Burger

began his tenure as Chief Justice of theSupreme Court with a preplannedagenda for court reform.29 His agendahad two basic components: remediesfor "deferred maintenance" of the fed-

Pound believed that the causes of

popular dissatisfaction with thecourts included an archaic system of

courts, outmoded court procedures,wasted judicial power, and the

politization of the courts.

eral and state court systems and mecha-nisms for governmental interbranchcommunications. Soon after Burgerassumed his position, the Institute forCourt Management was established withthe assistance of the ABA, the Instituteof Judicial Administration, and othergroups. In 1971, Congress created theposition of Circuit Executive, and, inthat same year, the National Center forState Courts was created.' One of thehighlights of Burger's court reformcrusade was the 1976 National Confer-ence on the Causes of Popular Dissatis-faction with the Administration of Jus-tice, cosponsored by the ABA, theConference of (State) Chief Justices

and the U. S. Judicial Conference. Theconference, soon dubbed the "PoundConference," convened leaders of thebench and bar as well as scholars fromnonlegal disciplines.31 Some of therecommendations arising out of thePound Conference related to establish-ing Neighborhood Justice Centers, re-vitalization of small claims courts, useof compulsory arbitration, increaseduse of administrative agencies, correc-tion of discovery abuse, use of sanc-tions, reassessment of the class actionprocedure, reassessment of scope of thejury trial right, and reexamination ofthe utility of diversity jurisdiction.32

The 1980s hosted experimentation byboth federal and state court systems,particularly in the area of using court-annexed compulsory arbitration andmediation programs.33

Despite the potential synergy of ef-forts of a number of professional andcivic court reform organizations fornearly ten decades, as we approachedthe 1990s we were still experiencingthe same congestion, delay and costcomplaints concerning our present civiljustice system.34 The reason for thiscannot be fully understood without anexamination of the present recommen-dations for civil justice reform.

D. Recent Efforts at Reform:More of the Same?Perhaps at no time in history has

there been so concentrated an inquiryinto the functioning of the federal civiljustice system, by all three branches ofgovernment and the ABA, in such ashort period of time. During the lasttwo years, the Federal Courts StudyCommittee issued its report (April,1990); Congress enacted the Civil Jus-tice Reform Act of 1990 (December,1990); the President's Council on Com-petitiveness issued its Agenda for CivilJustice Reform in America (August,1991); and the ABA released its Blue-print for Improving the Civil JusticeSystem (February, 1992). Each groupidentified problems with the presentcivil justice system and proposed spe-cific remedies.

1. The federal courts report onproblems

In late 1988, responding to "mount-ing public and professional concernwith the federal courts' congestion,delay, expense and expansion,"35 Con-gress authorized Chief Justice Rehnquistto appoint a fifteen-member bipartisanFederal Courts Study Committee toexplore the problems facing the federalcourts and to develop a long-range planfor the federal judiciary.36 The finalreport of the Committee was presented

"[TIhe long-expected crisis of thefederal courts, caused by unabatedrapid growth in case filings, is at lastupon us."

on April 2, 1990. Contending that "thelong-expected crisis of the federalcourts, caused by unabated rapid growthin case filings, is at last upon us," theCommittee report made separate rec-ommendations to various branches ofthe federal government, to the statecourts, to the bar, and to the researchcommunity generally. 7 Includedamong the seventy topic areas of rec-ommendations were those related toadministrative appeals, appellate courts,alternative dispute resolution, attor-neys fees, civil case management, dis-covery, diversity jurisdiction, judicialadministration, juries, and pendent ju-risdiction.

2. Congress acts to initiate reformThe Civil Justice Reform Act of

1990, 28 U.S.C. § 471 (1990), wasenacted on December 1, 1990, as TitleI of the Judicial Improvements Act of1990.8 Congress noted that "high costs,long delays and insufficient judicialresources" all too often leave unfulfilledthe "time-honored promise" of "thejust, speedy and inexpensive resolutionof civil disputes in our Nation's federalcourts."39 Consequently, Congress saw

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the need to mandate each federal dis-trict court to design and implement acivil justice expense and delay reduc-tion plan.' The purposes of each planare to facilitate deliberate adjudicationof civil cases on the merits, monitordiscovery, improve litigation manage-ment, and ensure just, speedy, andinexpensive resolutions of civil dis-putes.4 Each district court plan mustbe developed after consideration of therecommendations of a district court"advisory group" composed of attor-neys and other representatives of liti-gants (consumers) in the courts as de-termined by the chief judge of thedistrict court.42 Each district court mayconsider and include the following inits plan: early ongoing control of thepretrial process, control of the extent ofdiscovery and time for its completion,encouragement of voluntary exchangeof information, reference of appropri-ate cases to alternative dispute resolu-tion programs, requirement of partieswith settlement authority to be presentin person or by telephone during settle-ment conferences, and requirement ofcounsel to jointly present a discoverymanagement plan.

After careful evaluation of the plans,the Judicial Conference of the UnitedStates must prepare and periodicallyrevise a Manual for Litigation Man-agement and Cost and Delay Reduc-tion for distribution to the districtcourts.43 The Federal Judicial Centerand the Director of the AdministrativeOffice of the United States Courts arerequired to develop and conduct com-prehensive education and training pro-grams for all judicial officers and clerksof court.'

3. The Executive Branch sets areform agenda

In August 1991, Vice President DanQuayle, on behalf of the President'sCouncil on Competitiveness, intro-duced the Council's fifty point Agendafor Civil Justice Reform in America ina widely-publicized speech at the an-nual meeting of the ABA.45 The statedpurpose for developing the agenda was

"[Hjigh costs, long delays andinsufficient judicial resources" alltoo often leave unfulfilled the "time-honored promise" of "the just,speedy and inexpensive resolutionof civil disputes in our Nation'sfederal courts."

that in "the past 30 years, our legalsystem has become burdened with ex-cessive costs and long delays... [and][miany features of the current legalsystem no longer serve to expeditejustice or to ensure fair results." 6 Itwas labeled by critics as a pro corpora-tion political agenda, which sought toalter the balance between individualplaintiffs and corporate defendants. 7

Some of the recommendations of theCouncil concerned voluntary alterna-tive dispute resolution, pre-lawsuitnotice, discovery reform, summaryjudgment reform, docket management,expert witness testimony, punitive dam-age containment, attorney fees, sanc-tions and diversity jurisdiction.48

4. The ABA proposes reformThe ABA's Working Group on Civil

Justice System Proposals issued its Blue-print for Improving the Civil JusticeSystem in February 1992. 49 The Blue-print was issued after the WorkingGroup's careful study of the Councilon Competitiveness' Agenda." Re-garding that Agenda, the WorkingGroup acknowledged that while "manyof the Agenda proposals are supportedby the ABA," "... [t]he Agenda is inlarge part a piecemeal collection ofproposals promulgated over the yearsby other entities, including the ABA,but the pieces chosen by the Council donot make a whole."'" The ABA pro-posals for reform concerned access toand funding and management of thejudicial system, accessibility of justiceto the poor, and to the working popu-lation, tort and insurance liability, al-ternative dispute resolution, discovery,more effective trial procedures, expert

evidence reform, punitive damages,attorney fees, and diversity jurisdic-tion. 2 The ABA Blueprint also con-tained a point-by-point critique of theFederal Courts' Study Committee rec-ommendations, noting either support,opposition, or no position as to eachrecommendation .53

The above description of the statusof current federal court reform shouldstrike fear in the hearts of thinkingconsumers of civil justice in America.Here we have three separate bodiesmaking what could be construed as twohundred or more recommendations forfederal civil justice reform, while Con-gress is simultaneously requiring eachof more than ninety district courts todevelop separate plans to reduce thecost and delay of litigation. This seem-ingly unaligned, splintered, partiallypolitical, and in some aspects,adversarial approach to problem solv-ing reflects a competitiveness regretta-bly characteristic of today's legal pro-fession. The present situation calls forthe services not of a Solomon-likedecisionmaker, but rather of a Job-likepeacemaker. Otherwise, we are des-tined to repeat the mistakes of history.'

II. A DIFFERENT APPROACH:REFORM LEGAL EDUCATIONFor many readers, shifting attention

from a perceived problem of litigationto a proposed problem of educationmay evoke a sense of disinterestedness- a "that's not my department" feel-ing. But, in reality, for every legalprofessional and every consumer ofjustice, education is our department.Education is the simple answer to thechild's question: How can we make ourjustice system work? The creativedesign steps that must be taken now toguarantee an efficient, effective, andeconomical civil justice system in thetwenty-first century involve only mini-mal court structural design modifica-tions, but substantial educational de-sign modifications.

While the solution to the justicesystem problem lies in the proper edu-cation of all strata of society, we must

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teach our youth, in particular, about thenature of conflict and appropriate meth-ods for managing and resolving it. Ileave the generation of ideas regardingpre law school conflict resolution andmanagement curricula largely to theeducation experts.5 However, I wouldlike to share some ideas about reshap-ing the way we train law students in theUnited States.

If we are to reduce pressure on thecourts and increase the prospects ofspeedy and inexpensive civil justice,we must completely revamp our ap-proach to legal education in the United

". [mJany features of thecurrent legal system nolonger serve to expeditejustice or to ensure fairresults."

States. We must seriously considerdiscarding the case method approach tolegal education or at the very least, wemust drastically de-emphasize it. 6 Byfocusing on cases practically from thefirst day a student enters law school, weare communicating the impression thatthe courts are the primary resource forresolving conflict. Actually, case lawlargely represents documented failureof the parties and counsel to reach amutually acceptable resolution of theirconflicts. In many instances, mutuallyacceptable solutions are not reachedbecause most lawyers were not taughthow to negotiate effectively. Ourpresent justice system exacerbates thesituation by relentless publication ofstories about failed negotiations el-evated to the status of "judicial opin-ions." Thejudicial system needs fewerjudicial opinions and more effectivegroup decisionmaking by disputantsand their lawyers.

Emphasis in law school trainingshould be on the cognitive and behav-

ioral processes that are the essence andfoundation of lawyering skills. Theunderlying cognitive and behavioralprocesses need to be understood inorder to develop efficient lawyeringskills. Courses should be designedaround processes of thinking, learning,communication, investigation, prob-lem solving, and decisionmaking. Af-ter these foundational process courses,law school training should focus onconflict resolution processes such asnegotiation, alternative dispute resolu-tion, trial, and appeal. Ethics should betaught in relation to all of the pro-cesses.

Knowledge of specific bodies of lawis useful, but secondary. Any compe-tent lawyer can become an expert onany legal issue in any topical areathrough legal research. However, alawyer cannot develop negotiation ortrial skills overnight. Nor can theseskills be learned by reading a book.Learning these types of skills dependson multiple behavioral experiences in avariety of factual and legal situations.It is on these types of process basedskills that law schools should focus inorder to prepare graduates to be ofmore immediate value to their clients(as consumers of justice) and to thelegal profession, generally. Just asimportantly, nationwide law schooltraining of this type would aid in solv-ing the problem of an overused, unre-sponsive, and impractical civil justicesystem.

A. The Japan AnalogyTo determine the specific compo-

nents of a model of legal education thatwould help solve the continuing prob-lem of court system congestion andexpansion, we must employ a lateralthinking technique called "thought re-versal."57 As an example, consider asociety possessing no civil court systemor judicial branch of government forcivil disputes, but rather a system whereall disputes are resolved, interperson-ally, by the disputants themselves orthrough the assistance of third par-ties. In such a society, what would

law school education be like?As an aid to answering this question,

we could employ another lateral think-ing technique called "analogy."58 Wewould try to think of a society whichclosely approximates our imaginarysociety. 9 One such society would bethat of Japan. An examination of thenature of the legal training in thatsociety generates ideas helpful in de-signing an answer to the question posed.

It is true, as some commentatorshave suggested, that a direct compari-son of the Japanese legal system withthat of the United States is unfair and

... status of current federalcourt reform should strike fearin the hearts of thinkingconsumers of civil justice inAmerica.

inappropriate.' There are significanthistorical6 and cultural differences62

between the two countries which ac-count for Japan's small number oflawyers63 and judges and its tiny, yetfunctional, court system.' But thatfact does not preclude the productionof ideas based on an examination of theway that Japan trains lawyers in acourt-adverse system. These ideas areuseful in creating a legal system fo-cused on private dispute resolution asopposed to excessive court involve-ment.

In Japan, there is only one lawschool in the whole country. Locatedin Tokyo, it is called the Legal Train-ing and Research Institute. To enter theInstitute, one must pass a grueling,competitive examination. Less than 2percent of all applicants (usually num-bering 30,000) qualify for admission.Each year, the Institute admits about500 students and graduates about thesame number. Graduating from its twoyear training program is a prerequisite

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to being admitted to the practice of lawin Japan. An unusual feature of admis-sion to the Institute is that the studentsare considered to be employees or "le-gal apprentices" of the supreme courtand are paid a salary during their timeof study.

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Training at the Institute is directedtoward: (1) transforming students intolegal practitioners who handle "livefacts" of the complex society (as op-posed to mere legal theories); (2) help-ing students acquire technical skillsneeded for legal professionals; and (3)providing students with uniform train-ing regardless of whether their ultimatechoice is to be a judge, a prosecutor, oran attorney.6 All Institute instructorsare appointed by the supreme court andare highly experienced sole practitio-ners, prosecutors, and judges. Fiftyinstructors are divided into ten five-person teams. Students receive in-struction and personal guidance fromthe same team of instructors through-out a good portion of the two yeartraining period. Judges teach civil andcriminal judging; prosecutors teachcriminal prosecution; and practicingattorneys teach civil and criminal prac-tice. 67 But more relevant for our pur-poses, is the nature of the training thestudents receive.

The two years of training are di-vided into three terms: four months ofinitial training, sixteen months of fieldtraining, and four months of final train-ing. Initial training consists of intro-ductory lectures, problem study, drafts-manship, special lectures, simulatedtrial and inspection tours, extracurricu-lar courses, and general culture courses.In the introductory lectures, studentsare introduced to the organization, ba-sic functions and operational proce-dures of the court, the prosecutor'soffice, and the bar. In problem studysessions, students draft judicial-typeopinions based on actual court records,and their writing is openly discussed inclass with appropriate critiques by aninstructor. Draftsmanship sessions notonly improve the students' writingskills, but also help them cultivate the

This seemingly unaligned,splintered, partially political, and insome aspects, adversarialapproachto problem solving reflects acompetitiveness regrettablycharacteristic of today's legalprofession.

ability to analyze facts and sharpenskills in both inductive and deductivelogic. The students must watch a fullday simulated trial conducted by theinstructors followed by a half day com-mentary by two instructors. In addi-tion, student groups observe actual tri-als and may also elect to attend anumber of one to four, eighty-minuteseminars on a variety of about sixteenlegal topics.68

Field training consists of rotatingthrough assignments in the district court(eight months; four months each in thecivil and criminal sections), districtprosecutor's office (four months), andan office of a practicing attorney (fourmonths). In the district court, the stu-dents are assigned to ajudge to observecourt proceedings, draft judgments, andreceive critiques from their assignedjudge. In the prosecutor's office, theylearn investigation techniques, howprosecutorial discretion is exercised,and how to draft indictments. Theyalso accompany prosecutors to trial andmust be given the opportunity to beinvolved in at least twenty-five cases ofvarious crimes during this training pe-riod. In the practicing attorney's of-fice, the students learn to prepare com-plaints, briefs, and other documents.

Education is the simpleanswer to the child'squestion: How can wemake our justice systemwork?

They also attend trials with the in-structing attorneys to observe trial pro-ceedings.69 The one-on-one aspects ofthis phase of training finds an analogyin the American method of trainingmedical interns and residents.

The purpose of the final trainingterm is "to consolidate the learningfrom the field experience, to correctdiscrepancies .. . resulting from un-even field experiences and to adminis-ter final educational polishing."70 Dur-ing this period, students attend ad-vanced lectures, study more complexfactual and legal problems, and doimpromptu drafting of documents inthe classroom. They also participate ina mock criminal trial in the roles ofjudges, prosecutors, defense counsel,witnesses, and the accused. The trial isfollowed by classroom discussion dur-ing which the students share their viewsand hear the instructor's comments onspecific portions of the trial.71

To graduate from the Institute, astudent must pass a final examination.There are four days of written exami-nations on civil and criminal trials,civil and criminal practice, prosecu-tion, and general culture. This is fol-lowed by a two day oral examinationtesting the students' knowledge of civiland criminal matters. 72

B. Application to the United StatesSystemIt cannot be denied that many law

schools across the United States have,in the past decade or so, adopted lawschool skills training opportunities forlaw students resembling aspects of theJapanese model. These include nego-tiation, alternative dispute resolution,trial practice, appellate practice coursesand other practice oriented courses.But rarely do we find a law school inthe United States which has taken acomprehensive approach to legal edu-cation in its institution which, like theJapanese model, de-emphasizes the casemethod, emphasizes development ofpractice skills, provides for non-elec-tive rotating internships, and requiresteam teaching. These four elements are

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necessary to produce effective legalpractitioners and to resolve the prob-lems of congested courts. The Japanesemodel is a start, but for us to achievethese two goals, that model must bemodified. Our model must compen-sate for the fact that our system ofgovernment is primarily based on theconcept of individual rights and that, asAmericans, we do not have the histori-cal and cultural orientation toward con-ciliation as the primary method of re-solving disputes.

The law school curriculum describedbelow represents only initial ideas in-tended to inspire further thought aboutthe topic. It is also based on a fewassumptions: (1) that elementary andhigh school education will, in the fu-ture, have modules of instruction in-volving conflict management and dis-pute resolution processes (includingtraditional court adjudication); (2) thatthe ABA and the Association of Ameri-can Law Schools will agree on specificcourses (such as survey courses oncontract law, tort law, property law,and constitutional law) that must betaken and passed as a prerequisite toapplying to law school; and (3) that thegoal of legal education will be to teachstudents a full range of practice skillswith an emphasis on those skills relatedto extrajudicial dispute resolution.

During the first two years, studentswould be taught by instructor teams.All of the instructors would not have tobe lawyers. At least one person on eachFirst Year instruction team would haveto hold a master's degree or Ph.D. ineither psychology, communications, orsome related field. All lawyer-instruc-tors would be required to have at leastfive years of experience as a practitio-ner (advocate, legal advisor, arbitrator,mediator, etc.), prosecutor, or judge.

Legal research, analysis, and writ-ing would be taken by the students allthree years. Each semester, these classeswould focus on different law topics,such as torts and contracts. The in-struction team would also concentrateon these topic areas in teaching theother courses during the semester. The

If we are to reduce pressure onthe courts and increase theprospects of speedy andinexpensive civil justice, wemust completely revamp ourapproach to legal education inthe United States.

law topic focus would change duringother semesters with all preceding top-ics available for use in the simulations.The system would heavily emphasizethe use of the computer both in legalresearch and in dispute resolution.73

The first semester of the first yearcurriculum would include courses onlaw and dispute resolution processes,communication processes, and learn-ing processes. A course on thinkingprocesses would include logic, creativethinking, theories of cognition, per-ception, problem design, and problemsolving.74 The second semester of thefirst year would consist of a traditionalmoot court course involving writtenbriefs and oral arguments. Othercourses would address decision-mak-ing processes, investigation processes,and judicial decisionmaking processes.

Second year courses would include,in the first semester, negotiation pro-cesses, mediation processes, hybridprocesses, and trial advocacy. Thesecond semester would cover advancednegotiation and mediation, arbitrationjudging, arbitration advocacy and ap-pellate advocacy.

The third year curriculum wouldfocus on internships, allowing students

Emphasis in law schooltraining should be on thecognitive and behavioralprocesses that are theessence and foundation oflawyering skills.

to develop practical skills. A uniquefeature would be a choice of a teachinginternship or service in the Law SchoolClinic Program. The teaching intern-ship would be either at the law schoolor in a local college, high school, orelementary school. The purpose of thisinternship would be to enhance the oraland presentation skills of the law stu-dents and to help educate law studentsand other members of the communityon effective methods and techniques ofdispute resolution. Students wouldalso do internships with an arbitrator,the prosecutor's office, a private lawoffice, and a trial or appellate judge.Third year students would also take alaw training synthesis course similar tothe final four month training period atthe Japanese Institute. Its purpose wouldbe to review and synthesize the learn-ing of the previous five semesters.

If this type of law school curriculumwere widely adopted, law school apti-tude and bar examinations would haveto be modified appropriately. Also, thelegal profession and the public, work-ing together, would have to devise newways of compensating lawyers for theirservices. For example, incentives suchas "creativity bonuses" for a speedyresolution of disputes with win-win orsuperoptimum solutions might be con-sidered.

CONCLUSIONHarvard educator Derek Bok prob-

ably summed it up best when he said:

If law schools are to do theirshare in attacking the basicproblems of our legal system,they will need to adapt theirteaching as well as their re-search .... T]he capacity tothink like a lawyer has pro-duced many triumphs, but ithas also helped to produce alegal system that is among themost expensive and least effi-cient in the world.75

With regard to that expensive and inef-ficient legal system, former Chief Jus-tice Burger, in the 1970s, said:

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"[plerhaps what we need are someimaginative Wright Brothers of the lawto invent, and Henry Fords of the lawto perfect, new machinery for resolv-ing disputes."76 Creative consumers ofjustice know that what we need now isimaginative people to invent and per-fect new ways to produce law schoolgraduates who know how to use newmachinery for resolving disputes."Absent that creative focus, continu-ing efforts at federal court reform,however well intentioned and intel-lectually inspired, are largely wastedand futile. o*

ENDNOTES1 RUSSELL R. WHEELER & CYNTHIA HARRISON,

CREATING THE FEDERAL JUDICIAL SYSTEM 14(1989).

2 William Rehnquist, Chief Justice's 1991Year-End Report on the Federal Judi-ciary, 24 THE THIRD BRANCH 1, 2 (1992).

3 John W. Cooley 4 LoY. CONSUMER L. REP.117 (1992).

4 WHEELER & HARRISON, supra note 1, at 1.5 FANNIE J. KLEIN, THE JUDICIAL ADMINISTRA-

TION DIVISION HANDBOOK (6th ed. 1981).Colonial government was marked by alack of distinction between legislative, ex-ecutive and judicial functions. Id. at 1.

6 WHEELER & HARRISON, supra note 1, at 4.7 Maeva Marcus, Introductionto ORIGINS OF

THE FEDERAL JUDICIARY: ESSAYS ON THE JU-

DICIARY ACT OF 1789 4 (Maeva Marcus ed.,1992). Seegenerally, EDWIN C. SURRENCY,

HISTORY OF THE FEDERAL COURTS 2-3 (1987);WHEELER & HARRISON, supra note 1, at 10.

8 WHEELER & HARRISON, supra note 1, at 11.9 Id. at11-14. In 1867, legislation fixed the

Supreme Court's authorized strength atnine justices. Id. at 14.

10 Id.11 Id. at 11.12 Id. at 18.13 Id. at 21.14 One proposal envisioned an eighteen-

member Supreme Court, with nine jus-tices serving on the circuits through athree-judge rotational scheme. Anotherproposal suggested that the SupremeCourt's nine justices be divided into threepanels to hear common-law, equity, admi-ralty and revenue cases, with constitu-

tional cases to be heard by the court enbanc. Id. at 22.

15 Id. at 24.16 Id.17 John H. Wigmore, Roscoe Pound's Saint

Paul Address of 1906, The Spark ThatKindled the White Flame of Progress, 20J. AM. JUDICATURE SOC'Y 176 (1937).

18 KLEIN, supra note 5, at 6-7.19 /d. at 7.20 AMERICAN COURTS & JUSTICE 60-61 (Glenn

R. Winters & Edward J. Schoenbaumeds., 1976). One of its first projects wasa proposed Statewide Judicature Act sug-gesting a variety of judicial council proto-types having rule-making authority. SeeKLEIN, supra note 5, at 7.

21 Winters & Schoenbaum, supra note 20, at61.

22 Id.23 WARREN E. BURGER, DELIVERY OF JUSTICE:

PROPOSALS FOR CHANGES TO IMPROVE THEADMINISTRATION OF JUSTICE 5-6 (1990).

24 Winters & Schoenbaum, supra note 20, at61.

25 Id. at 53. These efforts were supported byArthurT. Vanderbilt, a friend and long timeadmirer of Roscoe Pound, who becamePresident of the ABA in 1937. KLEIN, supranote 5, at 8.

26 BURGER, supra note 23, at 6.27 See ROSCOE POUND, ORGANIZATION OF

COURTS, (Nat'l Conference of Judicial Coun-cils, 1940). See also, KLEIN, supra note 5,at 8-9; see generally Larry C. Berkson,The Emerging Ideal of Court Unification,60 JUDICATURE 372 (1977); Susan Carbonet al., Court Reform in the Twentieth Cen-tury: A Critique of the Court UnificationControversy, 27 EMORY L.J. 559 (1978).

28 MarkW. Cannon, Innovation intheAdmin-istration of Justice, 1969-1981: An Over-view, in THE POLITICS OF JUDICIAL REFORM 35(Philip L. Dubois ed., 1982). There werea few bright spots in court reform duringthose two decades. In 1949, ArthurVanderbilt published his MINIMUM STAN-DARDS OF JUDICIAL REFORM. KLEIN, supranote 5, at 10. In 1959, AJS, the Institute ofJudicial Administration, and the ABA co-sponsored a National Conference on Ju-dicial Selection and Court Administrationout of which grew the Joint Committee forthe effective Administration of Justice andthe judicial seminars that eventually grewinto the National College of the State Judi-ciary. Winters & Schoenbaum, supra note20, at 62.

29 Cannon, supra note 28, at 39.30 Id. at 40-41.31 Id. at 46.32 A. LEO LEVIN & RUSSELL R. WHEELER, THE

POUND CONFERENCE: PERSPECTIVES ON J US-TICE IN THE FUTURE 301-306 (ABA 1979).

33 See generally ADR AND THE COURTS: AMANUAL FOR JUDGES AND LAWYERS, (Erika S.Fine & Elizabeth S. Plapinger eds., 1987).

34 See DANIEL J. MEADOR, AMERICAN COURTS

(1991); DAVID W. NEUBAUER, JUDICIAL PRO-CESS: LAW, COURTS, AND POLITICS IN THE

UNITED STATES (1991 );THE ROLE OF COURTS

IN AMERICAN SOCIETY: THE FINAL REPORT OF

THE COUNCIL ON THE ROLE OF COURTS (JethroK. Lieberman ed., 1984).

35 REPORT OF THE FEDERAL COURTS STUDY

COMMITTEE 3 (1990).36 Diana G. Culp, Fixing the Federal Courts,

A.B.A. J., June 1990, at 63.37 REPORT OF THE FEDERAL COURTS STUDY

COMMITTEE, supra note 35, at 6, 171-186.38 1990 U.S.C.C.A.N. 6803, 6803. There is

no specific indication in the legislativehistory of the Civil Justice Reform Act thatthe Committee on the Judiciary had con-sidered the earlier recommendations ofthe Federal Courts Study Committee. It isclear from the legislative history, how-ever, thatthe Senate Judiciary Committeebelieved that it received less cooperationfrom the Judicial Conference of the UnitedStates than appropriate. At a June 26,1990 hearing before the Senate JudiciaryCommittee, the Judicial Conference an-nounced a position of "disfavor" on theCivil Justice Reform Act. Id. at 6806-07.Federal judges had concerns that thelegislation would be counterproductive ifenacted. See Diana E. Murphy, TheConcerns of Federal Judges, 74 JUDICA-TURE 112 (1990).

39 1990 U.S.C.C.A.N. 6803, 6804.40 28 U.S.C. § 471 (1990).41 Id.42 28 U.S.C. §§ 472, 477, 478 (1990).43 28 U.S.C. § 479 (1990).44 28 U.S.C. § 480 (1990).45 The Council's Working Group on Civil

Justice Reform was chaired by SolicitorGeneral Kenneth W. Starr and was com-posed of experts from the Department ofJustice, the White House Counsel's Of-fice, the Office of Policy Development, theOffice of Vice President, the Departmentsof Commerce, Treasury, Energy andHealth and Human Services, the Office ofManagement and Budget, the Council ofEconomic Advisors and the Environmen-tal Protection Agency. Press Release ofAugust 13, 1991 accompanying AGENDAFOR CIVIL JUSTICE REFORM IN AMERICA

(President's Council on Competitiveness,Aug. 1991).

46 Memorandum from the Vice Presidentaccompanying AGENDA FOR CIVIL JUSTICE

REFORM IN AMERICA, supra note 45.47 Deborah R. Hensler, Taking Aim at the

American Legal System: The Council onCompetitiveness's Agenda for Legal Re-

Volume 5 Number 1/ Fall 1992 11

I LeadArtile

form, 75 JUDICATURE 244 (1992). See alsoGregory B. Butler & Brian D. Miller, Fid-dling While Rome Bums: A Response toDr. Hensler, 75 JUDICATURE 251 (1992).

48 On February 4, 1992, President Bushsubmitted to Congress a special mes-sage to accompany his proposed Accessto Justice Act of 1992 supporting theincorporated AGENDA FOR CIVIL JUSTICE

REFORM IN AMERICA. 138 Cong. Rec. H255(H.R. Doc. No. 102-185) reprintedin 1992U.S.C.C.A.N. D13 (No. 2, April 1992).

49 The ABA Working Group consisted of thePresident, President-Elect and Past-Presi-dent of the ABA, three representatives ofthe ABA Board of Governors, and repre-sentatives of thirteen Sections, Commit-tees and sub-entities of the ABA. WorkingGroup on Civil Justice System Proposals,ABA BLUEPRINT FOR IMPROVING THE CIVIL

JUSTICE SYSTEM (ABA 1992).50 Id. at Acknowledgments.51 Id. at vii.52 Id.53 Id. at Chapter VII.54 See generally LAWRENCE BAUM, AMERICAN

COURTS: PROCESS AND POLICY (1986); CarlBaar, The Scope and Limits of CourtReform, 5/3 Just. Sys. J. 274 (1980);Geoff Gallas, Court Reform: Has It BeenBuilt on an Adequate Foundation?, 63Judicature 28 (1979); MALCOLM M. FEELEY,COURT REFORM ON TRIAL: WHY SIMPLE SOLU-

TIONS FAIL (1983); RICHARD NEELY, WHY

COURTS DON'T WORK (11983); JEROME FRANK,COURTS ON TRIAL (1963); LEONARD DOWNIE,

JR., JUSTICE DENIED (1972); CHARLES H.SHELDON, THE AMERICAN JUDICIAL PROCESS:

MODELS AND APPROACHES (1974).5 Excellent elementary school materials al-

ready exist for teaching conflict resolutionand its relationship to the court system.See e.g. LINDA RIEKES et al., CONFLICT,

COURTS AND TRIALS (1991). Other materi-als similarly exist for teaching childrenconflict resolution skills. See e.g. VIVIAN

EINSTEIN, CONFLICT RESOLUTION (1985).56 Former Chief Justice Burger said in 1969

that the case-method of teaching lawtrained students in generalities and "di-vorced them from the problems of people."Warren E. Burger as quoted in EUGENE C.GERHART, QUOTE IT 1159 (1988). Recently,with the advent of increased skills trainingin law schools, at least two commentatorshave taken up the defense of the case-method. See Charles Donahue, Jr., ALegal Historian Looks at the Case Method,19 No. KY. L. REV. 17 (1991); Russell L.Weaver, Langdell's Legacy: Living withthe Case Method, 36 VILL. L. REV. 517(1991).

57 EDWARD DE BONO, LATERAL THINKING: CRE-

ATIVITY STEP BY STEP 141-147 (1990); seealso JOHN W. COOLEY, APPELLATE ADVOCACYMANUAL ch. 2., 167-171 (1989).

58 See DE BONO, supra note 57, at 167-174;COOLEY, supra note 57, at 182-84.

59 Using the analogy technique, the itemcompared does not necessarily have tobe closely similar. Actually, the differ-ences often spawn useful ideas. DE BONO,supra note 57, at 169.

60 See e.g. Richard S. Miller, Apples vs.Persimmons - Let's Stop Drawing Inap-propriate Comparisons between the Le-gal Professions in Japan and the UnitedStates, 17 VICTORIA U. WELLINGTON L. REV.201 (1987).

61 The Japanese legal system is a combina-tion of European and American influencesgrafted onto historical customs and val-ues that discouraged public resolution ofdisputes. Donald L. Uchtmann et al., TheDeveloping Japanese Legal System:Growth and Change in the Modern Era, 23GONZ. L. REV. 349,350-354 (1987/88).

62 In the Tokugawan period, litigation wasseen to disrupt societal harmony sostrongly emphasized by Confucianism.Conciliation was the dominant feature ofcivil procedure during the Tokugawanperiod and persists in Japan even to thisday. ELLIOT J. HAHN, JAPANESE BUSINESS

LAWAND THE LEGAL SYSTEM 10 (1984) (chap-ter 2 of this treatise also published in aslightly revised form in 5 Nw. J. INT'L L. &Bus., 517 (1983)).

63 The widely-touted impression that Japanhas a minuscule number of lawyers incomparison to the United States is quitemisleading. First of all, the population ofJapan is about half that of the UnitedStates. Miller, supra note 60, at 202.Secondly, Japan has several groups of"quasi-lawyers" (scriveners, benrishi,zeirishi) who perform many of the func-tions routinely performed by full-fledgedlawyers in the United States. HAHN, supranote 62, at 14-15.

6 The Japanese judicial system is similar toa typical state court system in the UnitedStates. An unusual feature of Japan'ssupreme court is that only ten of the fifteenauthorized judicial positions need be filledby law-trained professionals. HAHN, supranote 62, at 19-20.

65 HAHN, supra note 62, at 13-14; Edward I.Chen, The Legal Training and ResearchInstitute of Japan, 22 TOLEDO L. REV. 975,978-79 (1991).

66 Chen, supranote65,at 984. Upongradu-ation, much in the nature of the Europeantradition, the apprentices must choose to

be appointed to career positions as eitherassistant judges or public prosecutors, orto register as practicing attorneys. Thenumber of positions for judges and pros-ecutors is fixed by law. Id. at 994.

67 Id. at 983.68 Id. at 984-88.69 Id. at 988-991.70 Id. at 992.71 Id. at 992-93.72 Id. at 993.73 See John W. Cooley, Merging of Minds

and Microcomputers: The Coming of Ageof Computer-Aided Mediation of CourtCases in SYSTEMATIC ANALYSIS IN DISPUTE

RESOLUTION (Stuart S. Nagel & Miriam K.Mills eds., 1991).

74 See generally COOLEY, supra note 57, at40-49.

75 Derek C. Bok, A Flawed System of LawPractice and Training, 33 J. LEGAL EDUC.

570,582 (1983). Lawyers have not beenable to reconcile completely the separateroles of adversarial advocacy andnonadversarial advocacy - of competi-tion and collaboration in the client's inter-ests. We seem to have much to learn fromthe Japanese in this regard. SeegenerallyWilliam J. McGill, PeacemakinginanAdver-sary Society in LEVIN & WHEELER, supranote 32, at 161-69; LEONARD L. RISKIN &JAMES E. WESTBROOK, DISPUTE RESOLUTIONAND LAWYERS 52-70 (1987). For an over-view of practice trends in the legal profes-sion, seeHENRY R. GLICK, COURTS IN AMERI-CAN POLITICS 81-100 (1990).

76 Warren E. Burger, Agenda for 2000 A.D.- A Need for Systematic Anticipation inLEVIN & WHEELER, supra note 32, at 25.

77 Consumers of justice must continually beconscious of the fact that our Britain-borrowed legal system, based on staredecisis, is, by its very nature, backward-looking. Therefore, we must make specialefforts to become future-oriented in theway we approach problems and solvethem. One way to do this, institutionally,would be to establish regional Centers forCreative Lawyering at law schools aroundthe country. In essence, these wouldserve as creative "think tanks" in additionto the research-oriented "think tanks"already in existence. See generally THEMACCRATE COMMISSION REPORT: TASK FORCE

ON LAW SCHOOLS AND THE PROFESSION: NAR-

ROWING THE GAP (ABA 1992).

12 Loyola Consumer Law Reporter