Tuesday, May 3, 2016

Overview of Wake Forest Law Review Legal Education Reform Symposium

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 publishthat is, produce insight worthy of academiaa 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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