Litigation Bias

Abstract

There is pervasive litigation bias in law schools. Despite significant interest in transactional law fields among law students, law schools disproportionately teach to the student interested in litigation: litigation-based legal writing assignments outnumber transactional-based ones 19 to 1; litigation-based clinics outnumber transactional ones 9 to 1; and doctrinal classes focus primarily on appellate court cases, often failing to entertain substantive discussion on the creation or content of the documents that led to the dispute. As a result, law school graduates are 44% less prepared for transactional careers than litigation careers.

This article is the first of its kind to highlight the pervasive litigation bias in today’s law school curricula and examine how such bias in the classroom affects the work of lawyers. In particular, this article examines how litigation bias affects many facets of the legal profession, including how litigation-centric licensing exams and rules of professional conduct do not accurately reflect transactional practice; how certain practices are over-reliant on litigation-oriented lawyering; and how litigation-focused pro bono inclinations leave transactional pro bono needs—including those of historically underrepresented communities, incarcerated individuals, and the growing non-profit sector—unmet. Finally, this article offers concrete steps that law schools can take to address litigation bias within the law school.

Keywords: litigation, transaction, transactional, corporate, bias, pedagogy, skills, doctrine, Langdell, clinic, legal writing, assignments, legal education, law schools, curriculum