Wake Forest Law Review Symposium Overview:
“Revisiting Langdell: Legal Education
Reform and the Lawyer’s Craft”
By: Steven Verez
On October 23rd 2015, The Wake Forest Law Review
held a symposium entitled: “Revisiting
Langdell: Legal Education Reform and the Lawyer’s Craft.” Over 200 persons attended the event. The symposium was hosted by Wake Forest
University School of Law Professors Harold Lloyd, Associate Professor of Legal Analysis
and Writing and Christine Coughlin, Director of Legal Analysis, Research &
Writing. A symposium edition published
by the Wake Forest Law Review containing articles by most of the speakers will
be available soon. A brief overview of
some of the speakers’ topics and discussions is set out below.
Revisiting Langdell: An Introduction
Professor Harold Anthony Lloyd
Wake Forest University School of Law, Associate Professor of Legal
Analysis and Writing
Professor Lloyd began the symposium with his thoughts on Christopher
Columbus Langdell. Langdell, an American
jurist and academic who served as dean of Harvard Law School from 1870-1895,
arguably had a greater influence on American legal education in the twentieth and
twenty-first centuries than any other individual. His implementation of the “case method” at
Harvard was copied widely and has become the primary method of legal
instruction in the United States (though that influence is now waning, at least
after the first year of law school). In
his presentation, Professor Lloyd argued that the Langdell method has sapped
modern law schools of much of their life, craft, and intellectual vigor.
In trying to explain the pernicious influence of Langdell, Professor
Lloyd examined three fundamental principles underlying Langdell’s theories. First, Langdell emphasized the “certainty” of
the law—the notion that law is a science consisting of “certain principles or
doctrines” whose “growth is to be traced in the main through a series of cases”
—as though the law could be understood and applied as mathematical principles.[1] Second, Langdell believed that this legal
science was best taught through redacted appellate cases, although he himself
also claimed that the “vast majority [of cases] are useless and worse than
useless for any purpose of systematic study.” Finally, Langdell argued that legal science was
best taught by people who rarely, if ever, practiced law. For example, James Barr Ames (who never
practiced law) was hired by Langdell to teach at Harvard Law School a mere four
years after his graduation.
Professor Lloyd argued that these three principles are not
only counterintuitive but wrong.
To begin, the law is hardly “certain” in any scientific
sense. Law by its very nature is fraught
with uncertainty—if not, what purpose would lawyer serve? Such uncertainty often flows from vagueness, ambiguity,
and the fact that there are often multiple ways one can frame and “solve” legal
problems. Furthermore, teaching the law exclusively
through redacted appellate cases is problematic in a number of ways. First, cases are “gutted” of much of their
life when framed through a reductionist lens that strips law of the realities
of interpretation, conflict, and synthesis. Second, such a method can create the misapprehension
among law students that facts are fixed and absolute rather than framed from competing
possibilities. Third, the law also grows
through sources other than appellate cases such as statutes and agency rules —the
“ever-tangled skein.”[2]
Fourth, mainly reading redacted cases is
not only questionable if the “vast majority [of cases] are useless and worse
than useless for any purpose of systematic study.”
It can also be highly inefficient (why read a lengthy case
primarily to learn a rule that can be stated in a sentence?) and can further
fail to explore the practical side of law. One does not learn contract law, for example,
by merely reading cases. One must also
know how to read, interpret, and construct actual contracts. As to the humanity of the law, it is hard to
see how relying primarily on redacted appellate cases can convey any deep
understanding of that humanity. Redacted
appellate cases are stripped in multiple ways of much of the life of the law.
They exclude everything outside the record, everything outside the scope of the
opinion, and everything falling further prey to Langdellian redaction. This is not to say that students do not have
to know how to read cases, but rather that the fanatic reading of appellate cases
need not (and should not) be the primary method of education.
Professor Lloyd concluded by commenting that the Langdellian
notion that practice renders one less fit to teach law is not just odd, it is in
fact thoroughly harmful for a variety of reasons. First, it reduces the intellectual vigor,
challenge, and humanity of law school. Those who have practiced law know that
it is much more challenging to craft a solid, enforceable, complex contract
than merely to memorize rules and concepts that make such a contract possible. Second, it has created an unfortunate caste
system in legal academia. Legal writing,
research, and clinical professors often do not get tenure, often have no voting
rights, and are often subject to lower pay.[3]
Additionally, aspiring teachers who
grasp the value of practice before teaching still may avoid such practice
because of the fear Langdellians will see such invaluable experience as a
“taint” upon their résumé. Professor
Lloyd concluded by suggesting that we honestly call out what is wrong with
Langdellian notions in legal education and continue repairing the damage
Langdell caused.
Later in the symposium, Professor Lloyd also discussed the
logical and empirical impossibility of separating theory from practice. His thoughts on this topic and its
implications for legal education reform are set out in more detail in his
symposium article. Much of his discussion on this topic is captured by his
paraphrase of Kant: THEORY WITHOUT PRACTICE IS EMPTY; PRACTICE WITHOUT THEORY IS BLIND (click here for article).
The Continued Evolution of Legal Education
& the Role of the AALS
Dean Blake Morant
George Washington University Law
School, Robert Kramer Research Professor of Law
2015 President of the Association of American Law Schools
Dean Morant, noting that American legal education has
continually evolved since the founding of the nation, attempted to trace the
rich history of legal education and assess the manner in which particular
societal events, including the 2008 Recession, served as catalyst for further
evolution.
During the earliest days of American legal education, before
and immediately following the birth of the United States, prospective lawyers
were trained and mentored by practicing attorneys as an apprenticeship system
that was used by many other professional and artisanal fields. This essentially eighteenth century
apprenticeship system eventually gave way in the nineteenth century to the
“case method” of instruction, as established formed by Christopher Columbus
Langdell. While this Langdellian model
continues to be used extensively today, American legal education has evolved
substantially over the last two centuries. For example, the twentieth century witnessed
the introduction of experiential and skills-based instruction, and, starting in
the late 1960s, clinical legal education became de rigueur in law schools throughout the United States. Toward the end of the twentieth century, law
faculties began placing greater emphasis on communication skills.
In the present day, there has an acceleration of evolution of
legal education prompted by the new and manifold challenges facing the legal industry
since 2008. These financially difficult
times (for both schools and students) have compelled more creativity regarding
pedagogy and curriculum. As a result,
dynamic new programs have emerged that produce competent professionals with the
tools to function effectively in the twenty-first century legal workplace. These
innovative new programs have allowed American legal education to become more
dynamic, promoting critical thinking while becoming more relevant in a complex
global marketplace. Likewise, he argued
that the Association of American Law School (AALS) has an essential role in
modern legal education. In particular, the AALS had two served two important
functions: first, to give law schools the
tools they need to function well in this challenging time; and second, to be
the public voice for American legal education.
In 2007, when Blake Morant first assumed the role of Dean at
Wake Forest University, legal careers and legal education were in a boon
period. A positive attitude pervaded the
entire industry, excited young applicants were everywhere, money was flowing
into law schools across the country, and the sky truly seemed to be the limit
for the American legal industry. Just a
short year later the entire landscape changed dramatically. In October 2008, the recession was in full
effect across the United States. It was truly a “perfect storm” (in Dean
Morant’s phrasing) that exposed the systematic weaknesses throughout all of
higher education.
For the legal profession it was not only law schools that
were affected—many of the jobs in the public and professional fields that were
once so plentiful were suddenly eliminated, and those who had be downsized were
now competing with recent graduates for a suddenly smaller pool of open
positions. The already high cost of legal
education, coupled with the lack of stability and suddenly decreased supply of
jobs, likewise made many potential law students (understandably) risk-averse. The role of the media in this process cannot
be understated. For example, David Siegel’s article “The Crisis in Legal
Education,” which argued that law schools were oblivious to a changing world
and reluctant to change to an absolutely unconscionable degree, was widely-read
and fundamentally changed the manner in which the public viewed law schools and
the wisdom of pursuing a legal career in general. Furthermore, the most recent MacCrate Report
argued in part that while law schools had done well teaching students how to
“think like lawyers,” they frequently failed to real-world practical skills to
their students. As a result, law schools
were forced to become much more thoughtful about the value they were giving to
their students and the Langdellian model was further augmented as legal
education continued to evolve.
Though there is certainly room to improve, Dean Morant noted
that there is a wave of innovation in legal education across the country which
has correlated with an increase in programs designed to develop students’
ability to engage in the practical aspects of the law. The “perfect storm” has accelerated the
transformation. Some examples of
innovative programs that Dean Morant shared during his presentation include
Boston University’s School of Law, which now features a “Lawyering Lab” where
students work alongside practicing attorneys, and the University of Akron’s
Re-entry Clinic for former prisoners, which helps prepare law students from
their first year for a career in the public sector.
Dean Morant also discussed the importance of small business
and entrepreneurial clinics. Some law schools (including Wake Forest) have
begun to implement “professionalism” programs designed to educate law students
on the practical aspects of lawyering. Inns
of Court programs where students have the opportunity to network with
practicing attorneys, an increase in Pro Bono activities, and off-campus legal
clinics are further examples of imparting law students with practical skills. Ultimately, Dean Morant argued that programs
like these are representative of how legal education in the United States has
come full circle from apprenticeship, to Langdellian classroom education, to
experiential learning (which is in some sense a modern evolution of the
eighteenth century apprenticeship method).
This is not to say that there is no role for Langdell in
modern legal education. On the contrary, Dean Morant argued that there was one
particular Langdellian skill was still absolutely vital— critical
thinking. This analytical knowledge
never been more necessary than it is today, as society continues to need
lawyers who can think critically and creatively, not merely memorize rote
skills. While legal education continues
to adapt and evolve in the twenty first century, Dean Morant remained hopeful
that innovative law schools, with the AALS as their support and public voice,
will help rebuild public confidence in the American legal industry and advance
confidently into the future.
Building
on Best Practices:
Meeting the
ABA’s Mandates for Teaching Professional Skills
Professor Emeritus
Roy T. Stuckey
University of South Carolina,
Webster Distinguished Professor Emeritus of Clinical Legal Education
In
2007, Professor Stuckey published Best
Practices for Legal Education on behalf of the Clinical Legal Education
Association. This report identified
“best practices” in an attempt to reevaluate the
American legal education system to provide a picture of what legal education
might become if legal educators would step back and consider how they could
most effectively prepare students for practice. The report divided best practices into seven
general categories: (1) setting goals; (2) organizing the program of
instruction; (3) delivering instruction, generally; (4) conducting experiential
courses; (5) employing non-experiential methods of instruction; (6) assessing
student learning; and (7) evaluating the success of the program of instruction.
In this presentation, Professor Stuckey
spoke at length about how law schools could build upon the practices described
in the report in order to meet the American Bar Association’s (ABA) mandates
for teaching professional skills.
Per recently
adopted regulations, all ABA-accredited law schools will soon be required to
establish and publish learning outcomes that are designed to achieve the schools’
educational objectives. These learning
outcomes must specifically include imparting competence in professional legal skills
that are necessary for law students to competently and ethically participate as
members of the legal profession after graduation. Law schools also must require students to satisfactorily complete one or
more experiential learning courses for a total of at least six credit hours. Among other requirements, these courses must
provide multiple opportunities for measurable student performances and, with
the exception of field placement programs, must include feedback about those
performances from faculty.
These
requirements (adopted in August 2014) will be applied to law schools during ABA
site inspections during the 2016-2017 academic year, with compliance assessed based
upon the seriousness of the school’s efforts to establish and assess student-learning
outcomes. Factors considered by the ABA
in assessing compliance include: whether the school has demonstrated faculty
engagement in the identification of the student learning outcomes it seeks for
its graduates; whether the school is working effectively to identify how the
school’s curriculum encompasses the identified outcomes, and to integrate
teaching and assessment of those outcomes into its curriculum; and whether the
school has identified when and how students receive feedback on their
development of the identified outcomes.
Describing
the new ABA mandate as piling onto Dean Morant’s “perfect storm” of challenges
facing legal education, Professor Stuckey addressed this mandate (through the
lens of Best Practices) in two parts.
First, he explored how the required
learning outcomes encourage law schools to be readdress what they have
traditionally considered most important as they develop their responses to the
ABA mandate. The latter part of his
address focused on how law schools can create competent and affordable
additional human resources for teaching professional skills and values.
Professor
Stuckey discussed the new requirements at length, focusing in particular on
those addressing practical skills education, describing their specific details
and the reasoning behind them. While praising
the ABA’s attempt to establish concrete standards for practical skills
education in law schools (which he claimed had been sorely lacking on an
institutional basis), he was not afraid to criticize the requirements for not
going far enough. Professor Stuckey
questioned whether the mandated six credit hours of experiential learning were
enough to truly have an impact on law students.
He noted that the State Bar of California has recommended that law
schools in California be required to provide fifteen hours of practice-based
experiential coursework, a standard to which law schools across the country should
strive towards.
He was
similarly skeptical of the ABA’s ability to objectively define and measure
competence in experiential education, arguing that individual schools are
better able to make these judgments on a case-by-case basis. These are of
particular interest, according to Professor Stuckey, because the ABA will begin
enforcing these requirements in the upcoming 2016-2017 academic year. At first, evaluation will be conducted on the
basis of whether law schools have made a “good-faith effort” to establish and
assess student learning outcomes. The
evaluations will eventually move to assessing law schools’ ability to not only
define learning outcomes but also to publish—that is, produce insight worthy of academia—a truly institutional
requirement. Professors will be forced
to self-evaluate their methods and strategies in light of the ABA mandate,
which Professor Stuckey hopes will produce a more honest and objective
assessment than the initial subjective evaluation.
The
question remains as to how law schools will expand or enhance their existing curriculums
in order to meet this mandate. Professor
Stuckey claimed that almost every school will find it necessary to augment or
develop their academic programs in order to have every student meet the ABA’s
requirement of six hours of experiential learning for every law student. For most schools, externships and
simulation-based courses will be the most likely areas of expansion, as an
increase in-house clinical opportunities would be either impractical or
prohibitively expensive in the majority of cases. These new classes will require new faculty
members to teach them, whether they be tenured, adjunct, or otherwise. In order to teach these new classes, new
faculty members must be trained for their students to benefit most from these
experiential classes, and existing professors will need to adapt to the new ABA
requirements. Newly hired adjuncts will
need to learn how to teach, and existing faculty will need to be refreshed on
the particular and ever-changing challenges that face practitioners. If faculty members and adjuncts can learn
from one another, Professor Stuckey argued, law schools will be able to adapt
more quickly in order to both meet the ABA mandate and give their students the
most beneficial law school experience possible.
Finally,
Professor Stuckey urged the audience to look to other countries for examples of
how legal education can incorporate practical skills. Law schools in other common law countries like
Scotland, England, and Australia have created “virtual law firms” and “virtual
communities” to give students hands on experience with the type of work and
situations they will encounter after leaving law school. The vast majority of the teaching in these virtual
law firms is done by actual practitioners, which enriches the student
experience in these programs not only through their enhanced verisimilitude but
also the effectiveness of the programs in imparting vital practical skills. Another example of outside-the-box thinking
are so called “practitioner tutors.” While
programs of this nature are obviously restricted by their start-up costs, the
gains to be had by exposing students to one-on-one learning environments with
individuals currently in practice cannot be underestimated. Professor Stuckey hypothesized that this could
be a kind of capstone course for the end of the end of one’s time in law
school, as the students in these programs learned more and remained healthier
while they participated.
Legal Scholarship in the Era of Reform
Professor Christine
Coughlin, Wake Forest University School
of Law,
Director of Legal Analysis and Writing; and
Professor Michael
Higdon, University of Tennessee School of
Law, Director of Legal Writing
In Defense of Practical, Clinical, and Experiential Legal Scholarship
Professor Coughlin argued that not only is the concept of
scholarship deeply engrained in the university experience, it also plays a
pivotal role in professional status and personal security of legal faculty. Scholarship is among the highest priorities
for nearly every accredited law school. Even
with recent reforms to legal education, faculty research and scholarship
continues to be integral to a school’s ABA accreditation. Law professors’
hiring, promotion, tenure, and compensation are also largely dependent on their
scholarship output. However, law professors
have a unique responsibility to impart skills that they may not have themselves,
should they have minimal or limited practical experience.
In this sense law professors are different than many of
their faculty counterparts in graduate programs such as literature, history,
philosophy, and economics. Those
professors generally train their students for lives in academia that are very
similar to the ones that they themselves lead. Law professors are arguably more similar to
medical school professors who prepare their students to practice in their
respective fields. But unlike medical
school professors, who for the most part actively practice medicine, the law
professor has chosen a professional life that is different from the
professional life that most of her students will lead after they graduate. Law
professors thus have a unique responsibility to equip students with tools that
they may not use on a daily basis (or at all).
Nonetheless, law professors are expected to engage in
faculty research and produce scholarship that is almost exclusively theoretical
in nature, similar to the other types of graduate school faculty. Even though
practical, clinical, and experiential legal scholarship does exist, it is
underrepresented and makes up only a small portion of law faculty research. Furthermore, the scholarship that is produced
is generally regarded as only having very limited academic prestige. Professor Coughlin argued that broadening the
definition of “acceptable” legal scholarship would allow for quality
scholarship that deals with practical, clinical and experiential learning legal
scholarship will better serve the educational needs of law students, increase
social utility, and improve legal practices. This more expansive definition could also have
direct utility for judges, academic administrators, and legislators as well as
practicing attorneys.
Professor Coughlin maintained that there was still a need for
purely theoretical scholarship; in fact, theoretical scholarship is extremely important
to this broadened definition of legal scholarship. She claimed that all pieces of practical,
clinical or experiential scholarship should include an extensive element of theory,
as theory is an essential component of all quality scholarship. Given the changing nature of both legal
education and the practice of law, a broader view of legal scholarship that
also includes firm theoretical underpinnings could bridge the gap between legal
academia and the larger professional world. This scholarship would explore what
clients, students, lawyers, and judges actually face on a daily basis and how
lawyers must confront issues of justice implicated by class, gender, race, and the
other systemic biases.
An expansive practical scholarship, Professor Coughlin advocated,
not only has a theoretical underpinning, but improves lawyers’ ability to
represent clients, is grounded in legal experience, and is accessible to the bar,
the bench, and law students alike. Ultimately
this type of practical legal scholarship has great social utility by addressing
operation and needs of legal systems, compiling and systematizing legal doctrine,
analyzing and suggesting legal techniques and strategies. The very best practical
legal scholarship is not only focused on empirical work, but work that actually
affects the practicing bar, bench, and client—and should be both embraced and
encouraged by law schools and the legal community as a whole.
“Beyond the Meta-Theoretical: Implicit Bias in Law Review Article
Selection
Professor Higdon’s delivery to the symposium addressed his
claim that one of the greatest obstacles to practical skills professors producing
scholarship is implicit bias in article selection. Such bias includes bias
against: scholars from less prestigious schools; scholars who hold less
prestigious or lengthy titles; scholars who engage in more practical scholarship
(including legal writing); scholars who write on less politically popular
subjects; and even female, minority, and LGBTQ scholars. In order to eliminate these biases and
increase diversity within legal scholarship, those in decision making roles
must first identify them within themselves.
Professor Higdon argued that student editors can and must do this.
Professor Higdon claimed that to a certain
extent all academics are aware of (and begrudgingly accept) the phenomenon of
implicit bias in article selection. In
assessing the likelihood of getting a respectable placement, a legal scholar
must take into account not only the substance of the article they are
submitting, but also the various proxies that editors typically employ to help
ascertain quality. These proxies include
the author’s institution, alma mater, publication history, subject matter, and
overall reputation within the legal academic community. Indeed, to the degree that it is possible,
authors will frequently utilize those very same proxies in marketing their
articles in hope of a higher placement.
While acknowledging that it may be difficult,
Professor Higdon argued that it is certainly possible and indeed necessary for student
editors to continue to discharge the weighty jobs they have been given and yet,
at the same time, minimize the potential for implicit bias in article
selection. By identifying the dangers
of implicit bias and the use of proxies in the article selection process, law
review editors can then attempt to neutralize such bias in their
decision-making. It is only after
identifying and biases correcting these biases that journals can begin to
improve the degree to which their publications reflect the rich diversity that
exists in the legal academy.
Humanities in the Law School Curriculum
Professor Linda Edwards, University of Nevada Las Vegas;
and
Professor Kristen Tiscione, University
of Georgetown School of Law
Moderated by Professor Harold Lloyd
The Humanities in the Law School
Curriculum: Courtship and Consummation
Professor Edwards’ address focused on the role of
humanities—history, philosophy, literature, rhetoric, etc.—within the legal
education system. She began by
clarifying that though it may be popular to believe that Langdell was opposed
to skills instruction in law school, this was in fact not the case. Elsewhere she has come to his defense on this
point, arguing that Langdell was a believer and enthusiastic participant in
forms of teaching that today are labeled as skills instruction. However, the case against Langdell is much stronger
when it comes to the role of humanities in legal education.
One of the central similarities among the various
disciplines of the humanities is a rejection of scientific methods as the
primary tools for understanding the world.
Instead, the humanities advance a critical theory that views the
universe as variable according to context, time, language, and culture,
analyzing and critique aspects of human society and cultural values. Langdell
rejected the humanities, striving instead to infuse legal analysis with the
rigor of the scientific method and
deductive reasoning, which gave the law a claim to objectivity that the
humanities could not. Professor Edwards
argued that on the contrary the humanities still had an important role to play
in a full understanding the law, and should be included in the modern law
school curriculum.
In the late nineteenth century, American universities were
anxious to “legitimize” legal education by teaching law as a form of
science. In that vein, Christopher
Langdell’s goal was to discern enduring principles from which all rules of law
theoretically flow. Langdell was
fighting to change the legal profession because he believed it was
corrupt.. Lawyers should win cases
because of the strength of their arguments, not because of some payment to or
connection with the judge. Thus,
Langdell opposed any view of the law—especially a rhetorical view of the
law--that left room for subjectivity, which he feared would encourage
corruption. .
Notwithstanding his admirable goal of redeeming the law,
Professor Edwards claimed that Langdell was wrong about the importance of the
humanities in legal education. Lawyers
with a theoretical grounding in the humanities are likely to have stronger
lawyering skills than those without.
They are generally better able to understand and construct legal rules;
to recognize, use, and defend against foundational frames; to predict a
decision-maker’s range of possible responses; and to choose and use effective
strategies of persuasion. Yet, the
humanities have remained marginalized in law schools from Langdell’s era to
ours.
Professor Edwards concluded by using the case of Hamdi v. Rumsfeld to explore how exactly
the humanities can help students fully understand the law. Although the humanities currently occupy only
a small corner of the law school curriculum, “refracting and redacting” the law
from a safe distance, they might instead become a more vibrant partner in legal
education. She saw law and humanities
scholarship escaping the pages of law reviews and imparting to law students and
practitioners alike a more meaningful and realistic basis on which to read and
understand the law. Despite the
theoretical dominance of legal realism in scholarship, much of legal education
remains mired in nineteenth century Langdellian formalism: a narrow, abstract,
and impersonal system bereft of the best of human meaning-making. Professor Edwards argued that legal
education can and should teach students
to approach the law not as a set of rules but rather as a way to construct and
understand our lives together. It is
only through the humanities that this can be achieved, and therefore the
humanities must take a greater role in legal education.
Classical Rhetoric: The Ultimate Training
Program for Future Lawyers
Professor Tiscione, who contributed two chapters to Building on Best Practices, addressed
the role of Classical Rhetoric in legal education. She began by discussing the humanities and
Langdell, arguing that one cannot embrace the humanities as an essential part
of education without also being critical of the pure Langdellian model. Of these branches of humanities, she argued
that classical rhetoric was the most essential to developing future
lawyers. Professor Tiscione claimed that
the theory-practice divide was due in large part to the dissolution of
classical rhetoric in the Western world and the success of the case and
Socratic methods in law school.
As understood and conveyed by Aristotle in his seminal text,
rhetoric is the art of inventing, arranging, and expressing ideas to influence
a particular audience to act in one’s favor.
In ancient Greek and Roman society, rhetoric was the “ultimate training
program” for lawyers, politicians, judges, and all public figures. While the three main branches of Aristotelian
rhetoric are judicial, political,
and ceremonial, in its broadest sense rhetoric encompasses all forms of
communication. A thorough education in classical rhetoric included both theory
and practice in equal measure: the art of rhetoric could not be fully
understood unless it could be put it into practice by delivering public
addresses, and one could not deliver truly effective oratory without a firm
understanding of the underlying system.
Rhetoric’s companion
was logic, the art of deductive reasoning and the source of all knowledge and
the path to the truth (whatever that might be).
For Aristotle, the humanities (rhetoric) and science (logic) were
inextricably intertwined, and a thorough understanding of both was part of a
full education. Those trained in the art
of classical rhetoric were able to combine oratory techniques with logic to
argue not for an objective truth, but the “best truth” for whatever their
position might be, something that should
sound familiar to any practicing attorney.
The place of rhetoric as the study of persuasion in the
western curriculum disappeared for a number of reasons, but Peter Ramus, the
French Renaissance humanist and philosopher, dealt it the most significant and
lasting blow by reducing rhetoric to the study of the expression of ideas. Ramus
objected to what he considered the theoretical overlap between logic and
rhetoric. He had developed his
own version of logic, which departed (in his view) from Aristotelian
logic. Albeit primarily for pedagogical reasons,
Ramus reduced rhetoric entirely to expression, and in doing so severed its
historical ties with logic. Ramus’
conception of rhetoric subsequently became widely adopted, and even to this day
“rhetoric” is most often associated with “devices” or “flourishes”—notions of style rather than
substance. Ramus’ views on pedagogy was
particularly influential in American university education, including Harvard.
Professor Tiscione argued that the cumulative effect of the
Langdellian method (as first introduced at Harvard Law School) has been to
perpetuate and exacerbate the artificial theory/practice divide and to deprive
contemporary students of adequate training in both. She claimed that lawyers with a theoretical
grounding in the humanities are not only better-informed as individuals, but
they are also likely to have better legal skills. She noted that Langdell’s scientific model
fails to account for difficult cases where, for each legal argument, there is
an opposite, yet “equal” counterargument. When judges view cases through the
lens of the particular narrative they were most sympathetic to and then craft
arguments that support their narrative, any notion of “objective” truth in law
is clearly flawed. Rhetoric is capable
of filling the gap left by Langdell and
teaches students how to combine appeals to
logic, emotion, and credibility to argue not for an objective truth but the
“best truth,” which makes it the “ultimate training program for future
lawyers.”
The Ethical Obligations of Law Schools,
Law Professors, and the Bar in Educating Law Students
Professor Deborah Merritt,
Ohio State University Moritz
College of Law John Deaver Drinko / Baker & Hostetler
Chair
Professor Merritt
began by posing the question to what extent, if any, those in the professional
fields have an ethical obligation to educate new members of their profession.
In the medical profession such an obligation has been long recognized. The ancient Hippocratic Oath, for example,
required doctors “to give a share of precepts and oral instruction and all the
other learning . . . to pupils who have signed the covenant.”[4] Contemporary versions of the oath frequently
include similar obligations, and this duty is widely recognized by those who
practice medicine. Likewise,
contemporary theories of professionalism stress the obligation of each
profession to provide newcomers with a thorough and effective education in
their respective fields.
The legal profession,
however, is almost uniquely deficient in recognizing this responsibility,
particularly in its various rules of professional conduct. For example, the preamble to the Model Rules
of Professional Conduct only hints at such an obligation generally, and the
Rules themselves obligate lawyers only to maintain their own education (with
the notable, if limited, exception of supervising lawyers, who are generally
accountable for the competence of their own subordinates).
Drawing upon social
and economic theories of professionalism, Professor Merritt argued that an
intergenerational duty to educate lies at the heart of any profession’s
identity. Without fulfilling that
responsibility, the profession is unlikely to maintain its exclusivity over a
field in a competitive and changing environment. She also examined the allocation of this
educational responsibility between the academy and practitioners, and explored
ways in which the legal profession might revive its commitment to educating
excellent professionals.
Professor Merritt
began by discussing the specialized sociological field dedicated to study of
the characteristics and social status of professionals. Sociologists in this field have extracted six
general characteristics, or “commonplaces” [5]
shared by all professions: (1) a body of
theory or special knowledge; (2) a specialized set of professional skills,
practices, and performances; (3) the developed capacity to render judgments
with integrity; (4) an organized approach to learning from experience; (5) a
professional community responsible for the oversight and monitoring of practice
and professional education; and (6) a commitment to serve the interests of
clients in particular and the welfare of society in general, which some claim
is the defining characteristic of professions.
The cognitive demands
of professional practice, according to Professor Merritt, require a highly
developed educational community. This
community must educate both newcomers and established members. Newcomers learn
the profession’s established theory and practices, while established members
hone their performance. There is an exclusive right to practice and right to
self-govern inherent in the profession’s responsibility to society, and educating
new members of the profession is part of that responsibility. Without both a commitment to the continuing
education of current members and an
obligation to educate new members, a profession cannot possibly hope to last.
Turning from professions
generally to the legal profession in particular, Professor Merritt then
discussed the allocation of this educational responsibility between academia and
practitioners, and how lawyers can revive their commitment to educating
excellent new professionals. She
stressed that both practitioners and law schools are neglecting their
responsibility to educate new lawyers. Law schools, however, play a
particularly important role in providing this education; they control both the
pool of future lawyers and their educational foundation.
Professor Merritt
then offered a six-step program for law schools to improve the education they
offer future lawyers. First, she argued
that law schools need to stop tying admissions decisions to the US News & World Report Rankings.
Rather than making decisions based on short-term self-interest, law
schools should make the decisions that benefit their students and the
profession as a whole. Next, law schools
should try to focus on making educational programs more intentional and
proactive. Third, law schools should
strive to design programs that will benefit both clients and community. Law schools focus overwhelmingly on appellate
advocacy, but clients have much broader needs. Schools, therefore, should
strike a better balance between developing theories for appellate courts and providing
education to address all client needs.
In addition to devoting more time to developing students’ cognitive and
practical skills, schools should place all full-time professors on equal
footing.
As a fourth step,
Professor Merritt urged that law schools should increase efforts to inspire
students to serve low- and middle-income clients who are generally underserved
by the legal community. To do this,
schools should work to reduce the hierarchy among “types” of lawyers and to
elevate the status of solo and small firm lawyers. One constructive step would
be to expand loan forgiveness to private sector attorneys who serve low- and
middle-income clients. Fifth, the legal
profession will need to develop methods to deliver legal services more
efficiently. Schools, for example, could
show students how experienced lawyers
use existing documents and knowledge bases rather than always drafting
documents from scratch. As a whole, the
profession will need to strike a better balance between routine and
innovation. Finally, the legal
profession will need to develop educational practices that will allow law
students to continue learning—and mentoring others—in practice. The Socratic method does not offer a useful
template for workplace learning. Law
schools, law professors, and the bar will all need to work together in order to
develop a pedagogy that works across the lifespan. Undertaking these simple steps, Professor
Merritt concluded, is just the beginning.
If the legal profession is to survive, it must renew its commitment to
the education of both practitioners and new members, or it runs the risk of
being replaced by a profession that does.
[1] This is not a view unique to Langdell and indeed very
much a product of his time. The later half of the 19th century saw
the vast expansion of various “social sciences” ideas (quantitative
measurements, the scientific method, etc.) and their subsequent intrusion into
a variety of “soft” fields – history, philosophy, and linguistics, for example.
[2] As Langdell himself famously referred to human
affairs.
[3] For example, ALWD 2012 salary for non-director Legal
Writing professor is $78,000 while a University of North Carolina Assistant
Professor’s salary is $116,000 and tenured professors earn $178,000.
[4]
Ludwig Edelstein, The
Hippocratic Oath: Text, Translation & Interpretation 3 (1943).
[5] Originally proposed by Professors Howard Gardner and
Lee S. Shulman in The Professions in
America Today: Crucial But Fragile (2005).
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