Henderson, B R --- "Ask the Lost Question: What Is the Purpose of Law School?" [2004] LegEdDig 11; (2004) 12(3) Legal Education Digest 15

Ask the Lost Question: What is the Purpose of Law School?

B R Henderson

[2004] LegEdDig 11; (2004) 12(3) Legal Education Digest 15

53 J Legal Educ 1, 2003, pp 48–79

Law students frequently are critical of both what they learn in law school and how they are being taught. One set of common complaints focuses on the lack of diversity in courses offered. Another set of concerns focuses on what occurs in the classroom. Yet another frequent critique is that the issues addressed and the skills taught in law school are far removed from everyday problems lawyers encounter.

Typically, analysts explain away students’ dissatisfaction with law school by blaming the actors. One theory blames the students. A second theory blames law teachers, for a variety of reasons. A third — and similar — claim is that the faculty present all materials, including contextual ones, only from ‘a traditional legal perspective, ie. the legal structures or principles they involve.’ A fourth claim argues simply that law teachers lack the grounding in educational and learning theory to instruct their students effectively. Most importantly, all of the blame-theme explanations for the problems in legal education suffer the same fatal flaw. All fail to offer any considered justification for the existence of law school.

Without an understanding of the purpose of law school, assessments of schools’ practices are hollow. Therefore, any discussion of legal education must begin not with what (is happening in law schools) or who (is doing these things), but why (are we doing anything at all). Why does law school exist? What purpose does it serve? Ascertaining its purpose provides a framework within which to have a meaningful discussion of what law schools should and should not be doing. Law schools’ purpose is the measuring stick against which to evaluate not just the abundant complaints and criticisms that legal education attracts, but also the efficacy and relevance of law school practices.

The purpose of law school has evolved in accordance with the needs and interests of the legal profession and of the public. Given law school capacities and novice lawyers’ needs, the purpose of law school can be summed up in the recognisable phrase: to teach people to think like lawyers. At the most generic level, teaching people to think like a lawyer means teaching them how to approach situations like a lawyer would, which involves two elements, one functional and one normative.

The functional element defines how lawyers think in terms of what lawyers do. If we figure out what lawyers actually do, we can then trace back from that understanding to determine what skills and knowledge are critical to lawyering. Lawyers perform a wide range of functions that are common across the legal profession and can be grouped into four broad categories: lawyers are advocates and advisers; lawyers are makers and implementers of policies and rules; lawyers are adjudicators, negotiators and mediators; and lawyers are educators.

There are three definable clusters of knowledge and skills both common and critical to these lawyering functions: judgment capacity, legal reasoning capacity, and communication capacity. Judgment capacity entails the ability to exercise sound and reasoned judgment in light of an ‘integrated understanding’ of the complex factual patterns, conflicting interests, potentially applicable legal theories, and pragmatic considerations involved in any given legal issue. Legal reasoning capacity means being able to identify legal concerns, assess legal risk, and propose legal solutions based on a comprehensive understanding of relevant legal doctrine. Communication capacity involves the ability to communicate effectively with a wide variety of audiences for a wide variety of purposes.

In addition to the functional element, there is a normative component to thinking like a lawyer. This defines how lawyers think and act in terms of professional norms, enshrined in codes of professional responsibility. Another aspect is recognising the unique social responsibility that being a lawyer entails. Thus the normative component of thinking like a lawyer entails a comprehensive understanding of the role of lawyers, and thus of law, in society.

The two aspects of law schools’ practices with direct impact on the teaching of students to think like lawyers are pedagogy — what occurs in faculty-student interactions both in and outside of the classroom — and curriculum — course content, diversity of course selection, and required courses.

However, the reality is that the standard law school class is large, limiting in-class opportunities for meaningful faculty-student interaction. First-year classes almost uniformly are taught in large sections. Upper-level seminars, while becoming more common, are still not the norm. Law teachers regularly use some version of the Socratic method in conjunction with the case method. Lecture is also a dominant law school pedagogy. In turn, there is little open conversation in class among faculty and students, and thus little feedback to students, except for those few who are called upon to volunteer to participate.

Law schools generally fail to meet expectations about teaching. They neither offer incentives for good teaching nor even define it. The only consistent feedback on their teaching that law teachers receive comes from end-of-term student evaluations.

Law schools demonstrate mixed success in meeting the expectation of reading assignments that provide students with a foundation in the role of law and lawyers in our society, and in legal doctrine and how it developed. For the most part, assessment of law students neither tests them on the many-faceted capacities they will require as lawyers nor gives them significant feedback on their performance.

The four components of thinking like a lawyer necessitate that the curriculum include a broad range of content. To be able to identify, investigate, and resolve legal problems, students must have a basic understanding of common law and statutory legal doctrine, including both the elements of particular doctrine, the historical, political, ideological and pragmatic influences on doctrinal development.

Law schools do a reasonably good job of providing doctrinal knowledge and exposure. Law schools do much less well, however, at instruction in the other skills and knowledge lawyering requires. Skills are also shortchanged in the law school curriculum. The two ways in which standard curricula do directly address skills — legal writing programs and clinical programs — demonstrate law schools’ general disregard for skills training.

Law schools’ practices are based on tradition, not on a regular assessment and reassessment of the needs of the public, students and the legal profession. The entrenchment of the case method is a prime example. First, the method’s central role in justifying law schools and professionalising the bar has entrenched its position. Second, the case method makes financial sense. It allows for a ‘low-cost high-return law school’.

Requiring a pre-law curriculum would relieve law schools of some of the financial burden of ensuring that students have adequate foundation in areas such as the role of law in our society, legal philosophy and legal history, and communication and analytical skills. The review of law schools’ practices demonstrates that the required first-year curriculum barely broaches the foundational material for thinking like a lawyer, such as professional norms and ethics and the role of lawyers in society.

Improved teaching can and should lead to more meaningful assessment mechanisms, greater student-faculty interaction, greater engagement of students in the classroom and with reading materials, and more meaningful and productive in-class, out-of-class, and research assignments. Law schools could recalibrate the hiring and tenure processes to increase the importance of good teaching. To maximise the value of faculty practice requirement, law schools should encourage faculty to spend practice time in a context that corresponds with their research and teaching interests.

Law schools must restructure their curriculum, and encourage the requisite faculty professional development, to enable both the skills and the knowledge elements of lawyering capacities to be taught within the confines of a single course. Part of the problem with current instruction is that professional responsibility is presented in isolation from other legal topics.

Despite the alarming implications of the persistence of outdated nineteenth-century practices, however, law schools can change. They have not gone about change the right way. Their persistence reveals that the band-aids and stop-gap measures that have been tried do not resolve the critical underlying problem — that law schools’ practices do not adequately reflect law school’s purpose. Law schools’ failure to adapt, to correlate their practices with their purpose, threatens not only the schools themselves, but the legal profession in general.