Zeppos, N S --- "2007 Symposium on the Future of Legal Education" [2007] LegEdDig 46; (2007) 15(3) Legal Education Digest 23

2007 Symposium on the Future of Legal Education

N S Zeppos

[2007] LegEdDig 46; (2007) 15(3) Legal Education Digest 23

60 Vand L Rev 325, 2007, pp 325–337

Like the proverbial elephant, law school appears different when perceived from different perspectives. During my twenty years as a law professor, I saw law school as a professional training program, a legal research institute, and a wonderful group of academic colleagues. The articles in this Symposium on the Future of Legal Education, based on a conference held at Vanderbilt in spring of 2006, generally view law school from a similar perspective.

Law schools, like business schools, public policy schools and undergraduate programs, are largely tuition-supported institutions, although supplemented in essential ways by private donations. This is possible because their students are capable of paying the steadily increasing tuition (often with the help of federal loans, of course), and neither the teaching nor the faculty research relies on the extensive use of technology or large empirical data sets.

To many Provosts, the fact that law schools are largely tuition-supported means that they do not need to receive funding from central university sources. In fact, they can be regarded as a source of funds for other university programs — to continue the theme of large grazing animals, they are cash cows. More importantly, in my view, the fact that law schools are tuition-driven means that their economic viability depends on factors that are outside their control — in particular, on the gatekeeper degree that they award and on the economic health of the field for which they are training their students.

In granting a gatekeeper degree, law schools are similar to medical schools and engineering schools, but unlike business or public policy schools. Not only is a degree required to practice law, or, more precisely, to take the qualifying exam for legal practice, but that degree must be provided by a university. A few states, most notably California, allow proprietary institutions to offer the required degree, but the vast majority forbid this. As a result, law schools are not in competition with other types of training institutions, nor with employers who are willing to shoulder the training costs themselves. This fortunate situation is determined by political decisions that lie outside the direct control of universities.

But the law schools’ monopoly over the training of lawyers will not count for very much unless their students continue to command the handsome salaries that enable them to pay off their loans, or, more generally, that justify the cost of the degree. This depends on the continued economic health of the legal profession. In fact, the profession must not be merely healthy, but robust; it must continue to demand large numbers of entry level practitioners, and must continue offering them salaries far above the national median. Moreover, the viability of research-oriented law schools, including all the schools where this Symposium’s authors teach, requires that employers must be willing to pay a substantial premium to the high-achieving students that these schools attract and produce.

Another feature of law schools, when viewed from a Provost’s perspective, is that its educational model involves three years of classroom instruction. Until the 1870s, legal training in the United States followed an apprenticeship model, with virtually no classroom instruction at all, and no credentialing. Having adopted an exclusively classroom model for the pre-credential process, law schools have gradually reincorporated the apprenticeship approach through live-client clinics, simulations, and externships. But the process has been less than successful or comprehensive, and these various experiential modes of education have not been fully integrated into the academic curriculum.

It would not be inconceivable to organise a law school the third year of which consisted exclusively of experiential learning, or indeed, of paid apprenticeships. For that matter, the entire educational experience could be reorganised as an apprenticeship program, with the law school running its own law firm, and representing fee-paying as well as public interest clients.

One final feature that seems to me worth noting is that both the teaching and research in law school is distinctly different from that of any other university department. The most striking feature of law school teaching is the Socratic Method, a question-and-answer format that to some resembles fraternity hazing more closely than Socrates’ subtly subversive inquiries. As law students progress into their second and third years, the lectures courses and seminars begin to resemble classroom teaching in other university departments, but reverberations of the first year Socratic Method continue to the end. Legal research is equally distinctive. To begin with, it is dominated by articles, not books, and those articles tend to be much longer, and much more heavily footnoted, than articles in other disciplines. They are also more normative than scholarship in most other fields, with the possible exception of philosophy; the task of describing legislation, judicial decision making, or private legal behavior is often taken up by other departments, such as political science and sociology. Perhaps most notably, scholarly articles in law are not reviewed and edited by the authors’ peers, but by law students, a feature that often leads faculty members in other departments to wonder whether these articles should even count as scholarship.

What sort of institutional behaviors have resulted from these distinctive features? One notable behavior, from the university perspective, is that law schools have been largely self-contained. Because they are economically viable concerns, supported largely by their own endowment, giving, and tuition, they often strive to establish and preserve their autonomy from the rest of the university. Another behavior of note is law schools’ relative isolation from the outside world, a product of their emphasis on classroom teaching, and perhaps the gatekeeper degree that precludes employers or proprietary institutions from placing any competitive pressure on the law schools’ educational approach. Finally, the self-contained, isolated character of law schools has allowed them to be resistant to curricular change. I know of no other university department that uses the same pedagogic approach that it did 100 years ago, or bases its first year of education on largely the same basic conceptual categories.

What then can be said of the future of American legal education from the university perspective? Clearly, the ability to continue in anything resembling their present form depends on two factors over which universities lack direct control — their monopoly of legal education, and the continued economic health of the legal profession. It is easy to be pessimistic or even apocalyptic about either of these factors, particularly the second. But the U.S. economy has continued to flourish, despite the relative decline of our manufacturing and extractive sectors, on the basis of our service and knowledge-based activities.

Even beyond these fiscal concerns, law school efforts to maintain their autonomy from both the university and the outside world are, to many, increasingly outmoded and counter-productive. The three years of classroom education have consistently been challenged; third-year students, with many securing employment and experiencing practice, may verge on the ‘bored and restless.’ The relationship with a pedagogic methodology and a curriculum that is a century old may exacerbate these problems. Patience with the Socratic Method may be wearing thin; the ritualistic ‘hazing’ that it involves has been powerfully challenged as increasingly less appropriate for today’s diverse student population. At the same time, the style of legal scholarship that focused on the internal logic of decided cases and on the intricacies of legal doctrine has set astride a growth in a parallel system of research and discovery. Legal research is becoming more empirical and more interdisciplinary, and law schools are increasingly likely to hire entry level faculty with academic training in fields other than law.

As long as their economic viability remains intact, law schools will be able to maintain their relative autonomy; in fact, elite law schools at public institutions such as Michigan, Virginia, Berkeley, UCLA, and Texas seem to be moving further in this direction, at least fiscally.

The first two articles in the Symposium discuss the history of legal education and the forces that have acted on it. Robert Gordon describes the way the modern legal education, with its characteristic case law method, originated at Harvard Law School in the 1870s, the way it became dominant, and the way it preserved itself by resisting changes that were occurring in society at large. Professor Gordon traces the development of elective courses in the second and third years, and the gradual evolution of the basic Constitutional Law and Torts courses, as reflected in the changing casebooks that these courses use. While he sees some evidence that new intellectual approaches, particularly interdisciplinary scholarship, have influenced the way these courses are taught, he concludes that ‘interdisciplinary approaches have, however, affected scholarship more than teaching, because traditional teaching materials, and especially the case method, continue to act as a brake on innovation.’

John Henry Schlegel traces the common law origins of the Langdellian curriculum, and attributes the difficulty in reforming it to our inherited conceptual categories. He notes that there is no standard first-year course that is based on statutory law, although the modern legal system is predominantly statute-based, nor has contracts moved beyond its common law origins to incorporate modern commercial law. Another factor discouraging change is that the common law focus makes legal scholarship an easy and convenient task for law professors — no ‘messy social science fieldwork,’ no need to know much about what lawyers actually do. Professor Schlegel then offers a vision of a law school whose curriculum reflected modern legal practice. Today’s lawyers, he says, rarely go to court or conduct legal research; rather, they engage in a complex process of advising, negotiating and planning that mediates between legal doctrine and pragmatic action. Thus, a modern law school should devote its first year to teaching doctrinal structures and methods, legal practices, and legal writing, together with the administrative, economic, and social background of the legal system. In the second year, students would explore two practice areas in detail, and then they would be done; the third year, Professor Schlegel suggests, is a waste of time.

In the next section of the Symposium, which offers varying perspectives on legal education, Wayne Hyatt, a practitioner and part-time academic, underscores several of the concerns raised by Professor Schlegel. Legal education, he points out, fails to reflect the needs of its consumers — specifically, the firms and departments that hire law school graduates. He argues that legal educators must abandon their disdain for the practice and practitioners of law in order to better prepare their students to contribute to the legal profession and experience rewarding careers. They should not only teach their students to ‘think like a lawyer,’ but to be a ‘professional.’

Lloyd Weinrib’s jurisprudentially oriented article dissents from the two preceding articles in its premise, but interestingly, agrees with them in its conclusion. The purpose of law school, according to Professor Weinrib, is not to serve the legal profession, but to serve the university in its primary mission of caring for and developing the ‘intellectual inheritance of civilisation.’ But this does not mean that law schools should ignore the realities of modern legal practice: ‘The university study of law can ... be nothing other than the study of the practice of law.’

Another partial dissent comes from Mark West’s comparative study of legal education in Japan. He describes the shift from European-style legal education, where law is an undergraduate major, to three-year graduate level law schools of the sort that Langdell initiated at Harvard and now prevails throughout the United States. The shift to the American structure for law schools has been accompanied by an increased interest in American pedagogic techniques, such as the Socratic Method and clinical education. This sea change in Japanese legal education was motivated by the perceived need to increase the number of people who pass the bar examination and become practicing lawyers. But even with this reform, the number of practicing lawyers will remain relatively small, and lawyers will continue to focus on high-end, corporate litigation.

The next three articles focus on the culture and atmosphere of law school, and particularly the classroom experience. Two of these articles describe empirical studies that provide much more detailed insights into the classroom experience and related matters than the previous anecdotal accounts. Bonita London, Geraldine Downey and Shauna Mace, all psychologists, begin by identifying the influences on students’ sense of engagement. These include institutional factors such as the method of evaluation, situational factors such as pedagogic practices, and individual factors, such as each student’s sense of his or her own competence. Standard methods of assessing these factors, and student engagement in general, involve general surveys that suffer from limitations on the students’ memories of their actual experiences. Instead, the authors designed a longitudinal study; that of students entering an urban, elite law school that required student volunteers to record their immediate experiences at the end of each day during their first three weeks of law school. They find that a number of students reported feelings of alienation based on social factors such as their gender, race, or socioeconomic status. Many students also found the Socratic Method alienating, and observed that the discomfort it induced interfered with their ability to learn. Experiences that increased students’ sense of engagement included peer support, the acknowledgement of their concerns by faculty members, and their growing mastery of the subject matter. The authors conclude that law schools would benefit from greater diversity, and the introduction of more collaborative and cooperative pedagogic practices.

Elizabeth Mertz’s article describes a study of the linguistic interactions between professors and students in the first year classes of eight different law schools. Professor Mertz finds that law professors use the Socratic Method to re-focus student attention from questions of content to questions of authority. In discussing cases, professors insist on precise identification authority issues, sometimes to the point of demanding an exact repetition of the opinion’s language, but encourage a highly speculative reconstruction of the litigants’ underlying interaction that converts it into legal discourse. The result is to create a ‘closed linguistic system which is capable of in essence gobbling up all manner of social detail without budging its core assumptions.’ Professor Mertz also found that women and minority students participate less frequently in classroom discussions unless the faculty member is also a woman or minority group member — still another way that the classroom experience narrows the range of possible discourses about law.

Taking a less empirical and more interpretive approach to the same topic, Susan Sturm and Lani Guinier argue that the classroom experience is part of law school’s ‘culture of competition and conformity.’ Presenting law to students through the medium of decided cases, and under-emphasising statutes, treaties, contracts, and informal agreements, creates an image of law as essentially adversarial. ‘The conventional law school classroom mirrors adjudication’s adversarial, formal idea of conflict’ by its use of the Socratic Method, which resembles either a trial lawyer’s cross examination of a witness or an appellate judge’s pointed interrogation of a lawyer. In addition, the law school’s emphasis on classroom instruction conveys the message that legal expertise is abstract and formal, to be gained by passively absorbing information from a hierarchical superior, rather contextual and interpersonal, to be mastered by self-motivated learning under experienced guidance. This instruction tends to be sharply separated from the students’ efforts to define their professional identity and determine their career objectives. Professors Sturm and Guinier find that this competitive, adversarial culture breeds a narrow concept of law and legal education that undermines efforts to reform the curriculum. Students want to conform to the dominant norms in order to get ahead, and shun innovative programs or unique experiences. The only way out, in the authors’ view, is to make ‘law school culture an integral part of the conversation about law school reform.’

The final three articles in the Symposium present global critiques of legal education and offer programs for change that have been planned or implemented in leading law schools. Carrie Menkel-Meadow notes that legal education has remained relatively unchanged in the past few decades, unlike professional schools for medicine and business which have ‘reinvented’ themselves during this period. She suggests that the path to educational renewal in law involves the recognition that ‘the study of law itself [is] necessarily a multi-disciplinary enterprise, borrowing from or using the insights, methods and canons of other fields to tell us about how we govern ourselves.’

Its staying power, Professors Rakoff and Minow suggest, lies in the multiple purposes that Langdell’s case law method serves; it teaches students how to reason from particular legal materials to general principles, it connects to a recognisable aspect of legal practice, it is easy to use, and the necessary materials are easy to acquire. But the method has serious limitations.

The final article in the Symposium, by Edward Rubin, also centers on the lack of change in legal education. The Langdellian curriculum, Dean Rubin argues, and particularly its mandatory first year, was up-to-date at the time it was developed, but became obsolete a mere thirty or forty years later due to dramatic legal and conceptual changes in the 1890s. To begin with, there was no administrative state at the federal level when Langdell developed his curriculum. In the immediately following decades, however, the Progressive Movement spawned a host of federal agencies that rendered this curriculum’s exclusive focus on the common law outdated. Second, there was no knowledge of the common law’s real history, but instead the myth that it embodied unarticulated principles that had existed since time immemorial. Third, there was no social science in the United States when Langdell developed his curriculum, and he thus relied on natural science as a model for his approach. Rapid intellectual advances in the following decades provided the more appropriate model of social science, and offered methodologies for studying law as a social practice, rather than merely a body of doctrine. Finally, the prevailing belief in Langdell’s day was that education was a process of training the rational mind. Shortly thereafter, theories of learner-centered education, particularly those of John Dewey, suggested that learning is a developmental process where the students’ capacities and interest change as their mastery increases.

Recognition of these conceptual developments, which have now been established for 100 years, would produce dramatic changes in the law school curriculum. First-year students should be introduced to the realities of the administrative state as well as to the common law and learn to read statutes and regulations as well as cases.

Rubin is the dean of our Law School at Vanderbilt. There are few legal scholars who have given greater thought to rethinking and modernising legal education. Of course, as is clear to all deans, faculty, students, and alumni, this is a collective and political enterprise of the entire law school and university community, and will ultimately be based on the ideas of many faculty members, students, and alumni. Indeed, while from the Provost’s ‘seat’ any effort at curriculum reform can often be a quagmire, Vanderbilt is on the path of exciting and bold steps in curriculum innovation. Thus the underlying goal, which Rubin’s article and so many of the other articles in this Symposium have urged, is to scrutinise and modernise the Langdellian curriculum and develop a new mode of legal education that is more consistent with modern thinking about law, more interdisciplinary, and more relevant to the twenty-first century practice of law.