Legal Education Digest
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Legal Education Digest |
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JM Krannich, JR Holbrook & JJ McAdams
Denver University Law Review, Vol 86, No. 2, pp381-404
As anyone who is familiar with the annual US News and World Report survey of American law schools is aware, there are a great number of institutions engaged in the business of educating lawyers in this country – currently, there are nearly two hundred accredited law schools. America’s law schools have vastly different rates of enrolment. Given these ranges and the sheer number of law schools, both public and private, it is clear that a vast number of students begin an education in the field of law each year.
Despite the differences among American law schools, however, the students’ education will be remarkably similar, regardless of which institution they attend. Legal education – perhaps more than any other type of instruction – is characterised by a distinctive teaching methodology designed to create a common experience and mindset for all who are exposed to it.
This common educational experience results from the fact that American law schools have historically emphasised one specific skill-known as ‘legal analysis’, ‘legal reasoning’, or simply ‘thinking like a lawyer’ – in their curricula, and have almost universally used a particular type of instruction to develop this skill. Indeed, the foundation of modern legal education is the institutionalised belief that students’ legal aptitude is best developed through a classroom dialogue known as the ‘Socratic method’, whereby professors force students to distil ‘rules’ from case law and apply those rules to various factual scenarios. This type of instruction has dominated legal education for more than one hundred years, and during that time legal reasoning has been the primary skill taught to law students.
That law schools collectively focus on developing students’ skill in legal analysis is not, in and of itself, a problem. However, many law schools tend to focus on legal analysis to the exclusion of other equally important skills, and therefore give students an incomplete understanding of legal practice. As a result, a common perspective among new lawyers is that law school taught them how to think like a lawyer, but if they wish to actually learn how to be a lawyer, they must do so after earning their degree. This is a pessimistic, but realistic, view for many students, and not one that we should be proud of as educators. A wealth of recent research has demonstrated that law schools’ heavy emphasis on legal analysis – and the teaching methodology that is used to develop this skill – has unintended consequences that detrimentally impact students both personally and professionally.
Modern legal education can be traced to Dean Christopher Columbus Langdell’s development of the case method as a tool for teaching the skill of legal analysis at Harvard Law School in the 1870s. Prior to Langdell’s appointment to the deanship, students were typically taught black-letter law by professors who lectured from treatises, and they learned practical skills by applying their knowledge in apprenticeships. Law was widely regarded as a profession grounded in the humanities, and legal education took an interdisciplinary approach emphasising literature and philosophy. Langdell, on the other hand, viewed law as a form of science premised on a distinctive methodology – legal analysis.
Langdell thus viewed legal training as a process of learning how to synthesise rules by dissecting cases, a process that was distinctly scientific and did not require input from humanistic disciplines. Langdell’s theory was quickly put into practice at Harvard, and it soon became the dominant view of legal education in America.
Known as the ‘case method’, Langdell’s model required professors to teach using compilations of cases – typically from appellate courts-known as casebooks, rather than treatises.
Langdell’s case method is a calculated means of developing a very specific set of skills. Superficially, the case method trains students to synthesise overarching rules of law by dissecting raw cases and extracting snippets of doctrine that, when viewed cumulatively, make up a body of law in a particular subject. Students learn how to recognise not just the rules used in certain cases, but also, hopefully, the policies animating the rules. In addition to teaching students how to understand and synthesise rules of law, the case method also trains students to apply the rules they have synthesised to specific disputes.
While the case method, on the surface, teaches students to recognise and apply legal rules, its most profound impact is on the way students think. Put simply, legal reasoning is a subtle thinking process in which legal rules, as extrapolated from case law, are applied to facts, real or hypothetical, to predict outcomes. The process is not an intuitive one, and few students arrive at law school with an understanding of it. Prior to law school, most students’ academic experience has centred on memorising information and supplying the right answers to professors’ questions, whether in class or on exams. Indeed, most first-year students struggle, at least initially, with the fact that the case method requires them to continually try to answer questions that appear to have no ‘right’ answer.
Within months of their arrival in law school, students demonstrate new capacities for understanding the legal processes, for seeing both sides of legal arguments, for sifting through facts and precedents in search of the more plausible account, for using precise language, and for understanding the applications and conflicts of legal rules.
From this perspective, the case method must be viewed as a resounding success, a nearly fool-proof strategy for training students in the art of legal reasoning.
While the uniformity with which law schools produce students skilled in legal reasoning is an impressive feat, the flip-side of the coin is that, by heavily prioritising such training, schools are also uniformly creating the same deficiencies.
Legal institutions have mastered the process of teaching students how to think like lawyers, but not the process of ‘teaching students how to use legal thinking in the complexity of actual law practice’. Courses that emphasise practical skills and real-world training typically hold a subordinate place to doctrinal courses in most law schools’ curricula. Furthermore, the course offerings that are designed to prepare students for the practice of law are not nearly as synchronised or refined as the doctrinal part of the curriculum, and there is little integration between the two types of courses. Because little emphasis is placed on direct training in professional practice, legal analysis thus overshadows the entirety of students’ education, ‘conveying the impression that lawyers are more like competitive scholars than attorneys engaged with the problems of clients’. The result of this unbalanced and inaccurate perspective is that many students spend the third (and even second) year of law school figuratively treading water, having been taught the skill of legal reasoning but not provided a structured way to place this skill in the context of legal practice. The second two years of law school thus provide diminishing returns in terms of students’ educational advancement, with a great number of students simply waiting to graduate and begin practice even though they have little knowledge of what the practice of law actually entails.
The American judicial system is premised on an adversarial, winner-take-all approach to dispute resolution in which legal rules are formalistically applied to the facts of a particular conflict and the party with the more persuasive position is assigned the contested resource. Traditional legal education is deliberately geared toward developing the primary skill needed to operate within this system; the case method drills students to focus exclusively on the legal rights, liabilities, obligations, duties, and entitlements present in a given fact pattern. This purposeful simplification of conflicts removes all peripheral issues from the equation, preventing students from being distracted by moral concerns or compassion and allowing them to focus solely on honing their analytical skills.
In practice, lawyers provide analysis, advocacy, and advice to both people and organisations regarding an infinite number of different transactions, disputes, and problems, both legal and non-legal. To provide competent representation to their clients, all lawyers, regardless of specialty, must draw on a vast array of skills and perspectives beyond the pure legal analysis that is emphasised in law school. For example (and without attempting to be exhaustive), every lawyer needs excellent social and ethical skills. Law schools rarely train students in these skills in any structured manner, and thus the lawyers who have excellent communication abilities are either those who are naturally endowed with them or those who have developed such skills through trial and error in practice. Analysis is important, but it must be placed in context and it should not come at the expense of lawyers’ abilities to relate to the people with whom they must interact.
Every practising attorney must also be equipped with a broad set of problem-solving skills. At base, lawyers are advisors and advocates who use their expertise to help clients solve legal problems. To provide thorough and competent counsel to clients, lawyers must take into account an immense number of disparate issues, both legal and non-legal. This requires the ability to view legal problems comprehensively and from many different perspectives.
Recent research has also shown that leadership skills are tremendously valuable to practising attorneys but, like social, ethical, and problem-solving skills, are not purposely taught or adequately emphasised in law school. Law school graduates have a tendency to be ‘less sociable and more sceptical, urgent, analytical, autonomous, and more defensive and thin-skinned than the general public-by a wide margin’. While these characteristics make us good legal analysts, they usually also make us mediocre leaders. Leadership is a skill that is based on one’s ability to exhibit certain key behaviours; because these behaviours can be learned, leadership can also be learned. According to Larry Richard and Hillary Lambreth, the key behaviours include: thinking outside the box and experimenting with new and better ways of doing things; advocating positive, forward-looking goals; collaborating with, encouraging, and praising co-workers rather than hoarding power; acting in accordance with the values and principles to which others are held; and being self-aware enough to take responsibility for and determine how to overcome setbacks. Certainly these behaviours could be incorporated into legal education – for example, by teaching certain practice-based courses using a team-based approach and encouraging students to brainstorm both legal and non-legal solutions to problems. Currently, however, law schools rarely take such considerations into account, and the case method of instruction does little to promote these behaviours.
Not only does the singular focus of traditional legal education fail to adequately develop the full range of skills students will need as lawyers, but the teaching methods themselves also have a detrimental impact on law students. The case method is designed to require summative assessments in which students’ competence in doctrinal subjects is measured solely by comprehensive examinations given at the end of the semester. Studies have shown that formative assessments – in which students are evaluated periodically, allowing educators to better chart and encourage students’ progress – are far more conducive to learning. Yet, formative evaluations are rarely utilised in law school classes.
The prominence of the case method in legal education also has a proven negative impact on students’ psyches. By forcing students to narrowly focus on only the legal consequences of disputes, the case method excludes the social context in which disputes occur from students’ frames of reference. Many students find the narrow, formalistic approach emphasised in law school to be disillusioning because it discourages the ideals and goals that bring a great many students to law school in the first place, such as helping people or promoting social justice. When law students are conditioned to believe that the practice of law entails nothing more, they are forced to either shift their goals and values or reluctantly accept the hand they have been dealt. Commentators have found that both types of changes regularly occur in law students, resulting in a great deal of cynicism and anxiety.
For example, Kennon M Sheldon and Lawrence S Krieger recently completed a three-year longitudinal study of law students at two different law schools. The first school heavily emphasised abstract legal theory and analysis in its curriculum, while the second attempted to integrate this traditional approach with a heavy dose of practical skills training. On entering law school, most students’ values were oriented toward societal contribution, helping others, emotional connections, and personal growth. Over the course of law school, however, students became less likely to act based on personal interest or inherent satisfaction and more likely to act based on extrinsic rewards such as image, appearance, and prestige. Sheldon and Krieger also found that the students’ levels of need satisfaction declined during law school, resulting in an overall loss of motivation.
While students’ emotional and psychological well-being declined at both schools, it declined much more precipitously at the school that heavily emphasised legal theory. Sheldon and Krieger found that this disparity resulted from the difference in social contexts at the two schools. When the social context in law school supports students’ autonomy, gives them balanced interdisciplinary training, and focuses on satisfying students’ psychological needs, such as competence and relatedness, students’ need satisfaction increases. And when students’ needs are satisfied, their emotional well-being and psychological health is enhanced, their performance (as measured by, for example, GPA) improves, and their self-determined job motivation increases. Self-determined job motivation is a particularly important gauge of institutional success, for it is highly correlative with professional achievement and fulfilment after graduation. Unhappy lawyers make unprofessional lawyers, and therefore we must train law students in a way that promotes intrinsic fulfilment and encourages them to pursue personally satisfying career options.
However, traditional legal education, with its formalistic use of the case method and narrow focus on legal analysis, does not provide a social atmosphere conducive to students’ intrinsic needs. In fact, when used in isolation, the standard methods of legal instruction tend to stifle students’ needs and promote a shift in values that is detrimental to students and, consequently, to the profession. But their study also found that law schools with a balanced, comprehensive curriculum are much more likely to create such a culture because students who are given the opportunity to learn and implement a larger range of legal skills have increased feelings of independence and competence. Thus, the second school in Sheldon and Krieger’s study was able to temper the negative effects they identified by balancing the development of traditional legal skills with application-based practical courses.
Analyses such as Sheldon and Krieger’s help explain the alarming rates of depression, cynicism, and career dissatisfaction that afflict the legal profession. Recent studies have shown that lawyers suffer depression at a rate four times higher than the general population; in fact, in a study of more than 100 professions, lawyers had the highest incidence of depression. Commentators have attributed these ills to the general lack of intrinsic fulfillment and intrapersonal development in the legal profession, problems that, as demonstrated by Sheldon and Krieger, can be traced back to a lawyer’s education.
As educators, we can do better. Law schools are institutions of higher learning, and their educational mission should be to educate the best lawyers possible. When schools are instead churning out masses of unprepared, disenchanted practitioners, it is time to re-evaluate our teaching methodologies.
Reforming the institution of legal education will not be easy. It is a testament to the pedagogical power of Langdell’s approach that the case method remains firmly entrenched as the dominant form of legal instruction despite mounting criticism in recent years.
Nonetheless, American legal education has been gradually evolving in spite of these obstacles. Indeed, law students currently receive more practical skills training and are exposed to a broader range of interdisciplinary perspectives than ever before. For example, many law students now receive real world legal experience through clinical programs, and the vast majority of law schools offer courses that teach practical legal skills such as interviewing, counseling, and negotiation. In addition, a variety of novel approaches to legal practice have sprung up within just the last ten years and have been incorporated to some extent in law school curricula. Examples of these alternative approaches include: ‘(1) collaborative law, (2) creative problem solving, (3) holistic justice, (4) preventive law, (5) problem solving courts, (6) procedural justice, (7) restorative justice, (8) therapeutic jurisprudence, and (9) transformative mediation’. Many of these perspectives are interdisciplinary in nature and are designed to provide lawyers with a different ‘lens’ through which to view disputes or problems. For example, therapeutic jurisprudence is a distinctly psychological practice in which lawyers consider the effect of legal options on the well-being of the characters involved in a particular dispute in addition to the usual legal concerns, such as rights and duties. ‘Given two different options for achieving a particular legal result, if one option is more therapeutic than the other, the lawyer should attempt to pursue the more therapeutic course of action’. Similarly, the discipline of creative problem solving is ‘a broad approach to solving legal problems that takes into account a wide variety of non-legal issues and concerns and then seeks creative, win-win solutions to otherwise win-lose scenarios’. While traditional legal analysis is often a starting point, a creative problem solving approach encourages students to explore options and solutions beyond what would result from the formal application of legal rules.
Although the recent advances in legal education encompass a variety of skills and approaches, the reforms all share several common perspectives. First, an interdisciplinary view of legal practice in which extralegal concerns such as resources, goals, morals, values, psychological well-being, and interpersonal relations are integrated with legal reasoning is becoming increasingly prominent. A second and related development is that a broad problem-solving approach to dispute resolution is being stressed instead of the narrow focus of pure legal analysis. Finally, many of the changes represent an implicit recognition of the personal nature of legal practice and the corresponding need for lawyers to develop excellent human relations and communication skills. These common threads have led some commentators to refer to the changes cumulatively as the ‘comprehensive law movement’ or ‘postmodern’ legal education. Viewed collectively, the recent reforms reflect a gradually increasing shift back to legal education’s humanistic roots as law schools broaden their curricula and begin exposing students to a more diverse range of skills and perspectives.
Most of the changes that have occurred ‘have been more piecemeal than comprehensive’. In other words, most law schools have treated alternative skills and perspectives in an additive fashion, refusing to intrude on the priority given to training in legal analysis. Courses in, for example, practical legal skills are thus subordinated to doctrinal training and are not integrated into the curriculum or developed to the extent that traditional courses are.
In its recent study of American law schools, the Carnegie Foundation advocated such an approach, urging schools to ‘bridge the gap between analytical and practical knowledge’ by ‘uniting the two sides of legal knowledge: formal knowledge and experience of practice’. This requires numerous changes in the way law schools approach legal training. From the beginning of their law school experience, students should be taught the importance of legal analysis to legal practice but also its limits. Professors can also ensure that extralegal concerns are not ignored by discussing the social and moral consequences of specific results, or asking students to assume the role of a party’s attorney and discuss how they would approach a particular case from both legal and non-legal standpoints.
Law schools should also give students practical experience early on by including in the first year curriculum at least one course that develops practical skills and teaches students to ‘think like a lawyer’ in simulated practice settings. The practical aspects of legal education should then be expanded as students progress through law school, giving students an increased opportunity to assume the responsibility of acting on behalf of clients. In this manner, students would gradually transition from learning how to think like a lawyer to learning how to act like a lawyer. Law schools should also expand and refine their clinical training and require students to perform supervised legal work while in law school. Ideally, students would work in small clinical groups and meet weekly with their supervisor in a classroom setting to discuss their experiences. By organising clinics in this manner, schools would provide students with real world experience and also a forum in which to brainstorm, share ideas, and receive advice and feedback.
In addition to emphasising practical knowledge, schools should also seek to expose students to alternative perspectives, such as those that comprise the comprehensive law movement, either integrated with existing classes or as free-standing courses. This would allow schools to promote extralegal and interdisciplinary perspectives explicitly in addition to the implicit recognition such perspectives would receive in a more integrated curriculum.
The integration discussed above would dramatically improve legal education by maximising the impact of the second and third years of law school and training students in a more complete set of skills. It would also, in and of itself, improve students’ well-being and professional outlook by creating more well-balanced, self-aware, and satisfied law school graduates. If, as educators, we are truly committed to creating the best lawyers possible rather than ranking students so that law firms can determine who to hire, we must re-evaluate the purpose of summative teaching and testing in legal education. This is not to say that summative assessment has no place in law school but rather that it should not be used to the exclusion of other methods that would enhance learning.
Finally, law schools should also explicitly address the personal impact that their training – integrated or not – has on students. Legal education has a tremendous impact on the way students think and view the world; we cannot pretend that it does not also have an immeasurable effect on who students are as people (nor should we want to). When the personal, intrinsic changes that occur during law school are ignored, young lawyers enter the profession disillusioned, without a compass to guide their professional growth. To this end, law schools must create focused opportunities for students to reflect on their intrapersonal development. Law schools must also help students develop a self-awareness of who they want to be as professionals by encouraging them to integrate their intrinsic goals and needs with the practice area they choose to pursue.
In essence, what we are advocating is a legal education focused on the practical and humanistic aspects of the profession to the same extent as the theoretical. By integrating the doctrinal and practical aspects of their curricula and providing direct training in the skills and perspectives outlined herein, law schools would provide students with a much more comprehensive toolkit with which to view disputes. Students would enter the legal profession as creative problem-solvers, rather than mere legal analysts. Such an approach would be much more consonant with society’s need for lawyers.
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URL: http://www.austlii.edu.au/au/journals/LegEdDig/2010/8.html