Litigation Bias

45 Pages Posted: 6 Apr 2022 Last revised: 6 Nov 2023

See all articles by Adam Eckart

Adam Eckart

Suffolk University Law School

Date Written: 2022

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

Suggested Citation

Eckart, Adam, Litigation Bias ( 2022). 101 Oregon Law Review 51 (2022), Suffolk University Law School Research Paper No. 22-5, Available at SSRN: https://ssrn.com/abstract=4065819

Adam Eckart (Contact Author)

Suffolk University Law School ( email )

120 Tremont Street
Boston, MA 02108-4977
United States

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