Holmquist, K --- "Challenging Carnegie" [2012] LegEdDig 41; (2012) 20(3) Legal Education Digest 26

• Challenging Carnegie

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Challenging Carnegie

K Holmquist

Journal of Legal Education, Vol. 61, No. 353, 2011-2012, pp 353-378

‘What lawyering skills don’t law schools teach that we should?’ I put that question to a room full of eminent lawyers, judges and mediators who had come together to serve as the UC Berkeley School of Law Professional Skills Advisory Board. It is the question that has been on the minds of law teachers across the country since the 2007 publication of the Carnegie Foundation for the Advancement of Teaching’s report, Educating Lawyers: Preparation for the Profession of Law. Rather than focusing on what tasks recent graduates can or cannot do – which is where much of the legal education reform talk has centred – these experienced, successful lawyers talked about how new lawyers do or do not think.

The Carnegie Report drew attention to legal education’s open secret: law school only half-heartedly and rather incompletely prepares students for the practice of law. This observation is far from new.

In many ways, the report reflects and gives credence to the prevailing narrative about law school: legal education is quite good at, but overly dwells in, the intellectual sphere. Law professors, the report suggests, excel at teaching case analysis, and the case method effectively immerses first-year students in lawyerly thinking. But, the authors find that instructors over-rely on the case method and standard doctrinal classes to the exclusion of teaching students how to engage in the day-to-day practice of law. As a result, students graduate without knowing how to act like lawyers.

This essay challenges Carnegie’s conclusion that law school successfully teaches students to think like lawyers.

The Carnegie Report was published as part of a series on professional education more broadly. Professional education can be broken down into three apprenticeships of learning: the cognitive (which ‘focuses the student on the knowledge and way of thinking of the profession’); the practical (which exposes students to the ‘forms of expert practice shared by competent practitioners’); and the apprenticeship of identity (which ‘introduces students to the purposes and attitudes that are guided by the values for which the professional community is responsible’). In the law school context, the cognitive apprenticeship is where a student learns to think like a lawyer, and the apprenticeship of practice, as described by the Carnegie authors, is where one learns to act like a lawyer.

Carnegie claims that the vast majority of the law school curriculum works in the cognitive sphere. It further asserts that the meat of this cognitive training is found in the case method and the doctrinal classroom.

But the report goes on to suggest three significant problems with legal education’s near exclusive reliance on teaching through appellate cases. The task of connecting the analytical process ‘with the rich complexity of actual situations that involve full-dimensional-people, let alone the job of thinking through the social consequences or ethical aspects of the conclusions, remains outside the case-dialogue method.’

The second and third unforeseen consequences of legal pedagogy’s repeated reliance on case-method learning lie at the core of Carnegie’s critique of legal education. Students graduate with insufficient knowledge about what lawyers do on a daily basis, and even less experience doing any of it.

Consistent with the report’s initial organising principle, the authors conclude their assessment of the current state of legal education by placing its strengths and weaknesses into each of the three apprenticeships, or categories.

The lack of attention to solving clients’ problems is deemed a deficiency in the practical apprenticeship, and legal education’s insufficient attention to the ethical and social dimensions of lawyering suggests a problem with the professional apprenticeship.

Carnegie’s stress on the distinction between the cognitive and the practical is a mistake because it belies the inter-relatedness of understanding, experience, evaluating and creating. The separate cognitive and practical categories are inconsistent with most everything we know about how people learn. Higher-order thinking skills come only after repeated opportunities to apply memorised and then understood information. In lawyering terms, the Carnegie categories suggest that law schools owe their students the opportunity not only to learn to think like lawyers, but also to act like them. Yet this cognitive/practical divide is as untenable in lawyering as it is in learning.

The result of these formal categories is to define ‘thinking like a lawyer’ downward, limiting it to a decontextualised doctrinal analysis and application.

Education research makes clear the iterative nature of learning: One acquires content knowledge, ‘uses’ that content in relevant ways, and thereby gains a deeper and more nuanced understanding of the original learned content. To be sure, the report nods toward this more complex and recursive view of learning (and lawyering). For example, it recognises the case method as a form of learning by doing. Students do not simply read about legal analysis, but learn to do it through the question-and-answer process in class. But rather than allowing this view to complicate its diagnosis of legal education, the report consistently retreats into its cleaner, distinct categories. By dividing practical from cognitive, doing from thinking, the report avoids asking how lack of experience with ‘using’ legal doctrine in messy, real-world-like situations denies students an opportunity to engage in higher-order lawyerly thinking.

The case method, repeated over and over again, sacrifices complexity for precision, and as it stands, there is no systematic method for folding cultural, factual, contextual or procedural complexity back into the discussion. To be sure, this simplified approach reinforces students’ analytical abilities. We do successfully teach students to engage in fine distinctions of act and language; to sort the legally relevant from less relevant; to cogently argue for a particular solution of a legal problem; and then to flip that analysis on its head and just as cogently argue its converse. By narrowing students’ thinking this way, we diminish students’ ability to think about the knotty relationship among facts and culture and clients and law.

Law teachers tend to think it is important that their students learn this narrow form of thinking; but at their best, legal educators strive not just to graduate sharp debaters, but to prepare lawyers who will ‘contribute to the public good and serve their clients effectively and ethically.’ In recent decades, multiple lines of scholarship have reflected on just what that means: What is it that lawyers do? How do they go about doing it? What makes one lawyer better, more effective than another? The Carnegie Report either ignored or marginalised these literatures, and yet they may offer an important springboard for understanding what it means to think like a lawyer in its fullest sense, and what law schools might teach in order to better prepare effective, ethical, contributing lawyers.

For the purposes of this essay, I highlight just two different approaches to better understanding lawyering and lawyerly thinking, though there are certainly other options one could explore.

The first approach I describe is an empirical analysis of effective lawyering by Marjorie Shultz and Sheldon Zedeck. Through hundreds of interviews with lawyers, they identified twenty-six ‘Effectiveness Factors’ related to competent lawyering. While their ultimate goal is to develop or identify predictors of attorney competence useful to law school admissions, I believe their list of effectiveness factors could also help better define what it means to practice law. Recognising the individuality of one’s client-understanding the complex interaction of her story, the law, and her needs – is captured in many of the effectiveness factors as is a lawyer’s need to understand her role within institutions and society. Judgment and wisdom are also expressed throughout the list.

None of these competencies can be understood as separate from the rest or from the analysis and reasoning skills currently at the heart of our definition of ‘thinking like a lawyer.’ Rather, they interrelate, inform, even define one another. Their interaction shapes the ‘thinking of a lawyer’ beyond the narrow, hyper-analytical definition on which both the report and law school itself tends to rely.

Psychology also offers insights into what it means to lawyer, how one moves from novice to expert, and how we might think about setting students on a path toward excellence. A body of literature has emerged from these insights that focuses on lawyering as problem solving. The Carnegie Report cites this literature to develop ‘a theory for teaching practice,’ but only to remedy the perceived lack of intellectual heft behind practice-oriented courses. The report’s reliance on psychology there is actually an interesting example of the way its categories get in the way. Carnegie limits cognitive psychology to a theory that supports practical training, when the truth is that it is capable of much more work than that. Indeed it is a theory that many have argued comfortably encompasses the doctrinal and analytic aspects of lawyering as well. By treating psychology’s relationship to lawyering as a ‘practice’ theory, Carnegie effectively limits the lessons we might draw from the field.

Cognitive psychologists define a problem, simply, as any situation in which the current state of affairs varies from the desired end point. And solving that problem entails a series of decisions and actions, each building on the last, in order to move the world closer to the goal state. In order to make these decisions, or encourage others to, we rely on stock stories, or schemas, familiar stories and arguments that act as heuristics and allow us to create meaning through narrative.

Individuals develop mental databases of stock stories through experiences direct and indirect, individual and cultural. These stock stories become categorising and ordering tools. When one encounters people, things, events, or ideas that share features with a stored schema, the mind overlays the schema’s narrative onto the new objects, events or ideas to create meaning of them.

Not only do our stock stories allow us to make sense of our world, they also help us make choices, and persuade others to do the same. These past experiences suggest the efficacy of one path and the risks of another. They help us frame the problem, evaluate potential solution paths, and decide on a course of action.

The same cognitive and cultural processes lie at the heart of every form of specialised problem solving, including lawyering. Lawyers rely on legal and cultural stocks in order to try to move the world in directions that benefit their clients. The question of how to persuade through stocks in a legal context involves understanding empirical, instrumental, and normative questions. On the most obvious level, legal precedent serves this function. But lawyering involves appealing to stories and arguments that are relevant and persuasive for larger empirical, cultural, and social reasons as well. Effective lawyering must appeal to these broader forces and stories. And effective lawyers persuade by understanding and manipulating the stocks of the relevant arbiter.

Like the Shultz and Zedeck work, this problem-solving model leads to a broader and richer definition of ‘thinking like a lawyer,’ one that reflects everyday human processing and persuading and is infused with real-world content rather than the crisp yet flattened stories of edited appellate opinions. And, similar to the Shultz and Zedeck work, this model leads educators to two sets of questions. First, what would a rich inventory of stock lawyering stories look like; and second, how might we help our students build it in ways that enables them to progress toward, eventually, expert status? With respect to the first question, today’s typical curriculum focuses almost exclusively on building a database full of complex doctrinal concepts applied to various (presented-as-true) factual situations. By graduation, students have built a mental library of potentially thousands of difficult doctrinal rules, standards and theories, and of available methods for applying them, from a judge’s point of view, to a set of presented facts. And these stocks are crucial analytical tools. What is missing is the context and its empirical, instrumental, and normative content. The recent graduate’s mental library largely lacks stock stories that help her assess how, and in what institutions, and by relying on what methods, she might – or might not – use the law to help a client solve his problem. A curriculum geared toward this view of lawyering must address this lack of context and content, asking, what are lawyers’ stories? And what might a lawyer need to know about how to frame and manipulate them in order to serve her client?

The second question presented by this framework is, how does one build the organised library of stock stories and arguments, problem framings and solution paths that precede good judgment and assist in bringing about welcome outcomes? The answer, in short, is experience. Some of this experience will, and must be, direct. Lots of it, especially in the beginning, will be through simulation and analogy. Legal problem-solving skills, in other words, can be learned in the classroom as well outside of it, so long as the classroom is designed to give students experiential chunks and to help them develop the ‘habits of thought inherent in the formal model [that] improves subsequent problem solving done at the naturalistic end of the spectrum.’

If law is a manifestation of larger social and cultural forces, and if lawyering is a version of human problem solving and persuasion accomplished through a whole constellation of competencies, then what law school is missing is a sense of context that allows students to flesh out and conceptualise those systems. First, I propose that we infuse our curriculum with factual, empirical and normative content far beyond that which can be gleaned from appellate cases. Second, I believe that legal curriculum ought to expose would-be lawyers to the cognitive processes that inform the persuasion and decision-making central to lawyering. Finally, I propose that, at least in part, we shift our pedagogy to give students more experience with understanding legal problems from the ground up.

For decades, scholars have acknowledged the richness gained by viewing the law and legal processes through lenses of other disciplines – economics, sociology, psychology, literary theory, and more. This same richness brought to the classroom stands to add context to and strengthen a student’s understanding of what it means to think like a lawyer. Tax students, for instance, might take courses that provide a working knowledge of accounting or behavioural economics. In criminal law, one might introduce sociological analyses on the intersection of criminal law, race, and poverty. Students might feel differently about the policy goals of punishment if they understand the different ways in which divergent communities are policed.

If my first curricular proposal involves determining the type of content that lawyers might understand and manipulate when solving a problem, the second deals with insufficient content or lack of relevant information. How do lawyers go about making decisions or helping clients make decisions when they do not know everything they might like to about a problem? In addition to learning methods for acquiring knowledge (legal research, fact investigation, effective uses of discovery, and interviewing techniques, for example) students might be exposed to the psychology around decision making. Students (and thus lawyers) who understood cognitive biases, for example, might frame their argument differently; they might choose one narrative over another; or they might push for an outcome that looks different than they would have otherwise.

Finally, I propose that we allow students to experience much more of lawyerly thinking than they currently do in the doctrinal classroom. Both the cognitive psychology literature and our own experience tell us that students learn best when they get their hands dirty. But law students get little chance to experience the legal thinking that might occur at stages other than appellate litigation. They seldom experience the conflict of competing goals – some of which may be legal, some of which may not be. Law students get few chances to think about unknowable motivations (of opposing parties, collaborating parties, arbiters.) They rarely have the opportunity to rethink an argument or goal given previously unearthed information.

Well-run clinics certainly provide these invaluable experiences to our students. As it stands, however, clinical units merely supplement the steady diet of case-method and doctrinal courses. Some reformers have argued that we alter the ratio of classroom learning to clinical learning by transforming the third year of law school into a clinical year, thereby providing students with the kind of experiential training that would put them on the path toward expertise.

Expanded clinics, however, are not the only way to provide students with a variety of experiential opportunities. Many of the forms, or stages, of lawyerly thinking might be incorporated into the classroom. Again, there are options, from the time-intensive complete revamping of materials and syllabus, to the much more modest task of rethinking what types of questions one asks. Among the major changes a teacher might choose is a more inclusive notion of the case method, one that leans less heavily on appellate opinions and spends more time building a case from the beginning stages.

While this essay begins to stake out a point of view on the direction that legal education might move, my preliminary goal is simply to call for dialogue. Does the current movement for greater infusion of practical and professional skills into our current curriculum best address what ails law school? In the end, the Carnegie Report, and the scholarship that has followed on its heels, does not go as far as it could in identifying the problems in legal education. By accepting the conventional wisdom on lawyerly thinking, it stops short of seriously articulating a conceptual and empirical framework for what it means to lawyer.