Tuesday, December 11, 2012
Some of my colleagues think that the costs of change pale in comparaison to the costs of carrying on as if nothing has changed in the legal profession. "Change or die," or something like that, is the slogan. If those are my only options, then change it is!
Actually, even if our backs are not exactly up against the wall, it is certainly healthy for law schools to think in a fundamental way about what it is we are doing. Are we serving our students well? Are we serving the legal profession well? Are we serving the consumers of legal services well? Where does legal scholarship fit in with the overall mission of legal education? It is possible to get intp a professional groove that can then develop into a rut. In the process, one can lose sight of these questions.
That said, carrying out the sorts of reforms that the Carnegie Report has called for in the current economic climate raises certain challenges. Reformers almost universally call for more of an emphasis on practical skills training in law schools and for a reduction in the costs of legal education. It is hard to imagine how to do both simultaneously. Skills training is simply more expensive than doctrinal teaching. It is hard to do legal writing courses well when the class size exceeds 25, and really class sizes around 15 are optimal. Few law schools have the resources to achieve that sort of faculty/student ratio in all legal writing courses. Law clinics should have no more than ten students per faculty member.
One could cut the costs of law schools by relying more on adjuncts or even on lawyers who might volunteer to oversee extended externships and apprenticeship programs. One could rely more on online education. But these solutions might impose unacceptable costs in terms of the quality of legal education. In order for legal education to progress, we should develop a post-Langdellian model, rather than revert to pedagogical practices abandoned with good reason at the turn of the 20th century.
The other cost of change has to do with use of faculty resources to best advantage. A law school that hired faculty members based on one model of legal education must consider the serious challenges the school must overcome in order to use the same faculty to deliver a completely different currciulum. It may be necessary to re-train the faculty to teach a different way, but training might not help if the faculty members do not entirely buy in to the need for fundamental change.
At our law school, we are exploring teaching skills across the curriculum as a way to introduce skills training into doctrinal courses without have to hire twenty new faculty members. In a previous post, I suggested that this might require us to jettison existing course materials, because the approach entails coordination of instruction across courses. Lawyering exercises are to be designed that will relate to what is being taught in multiple doctrinal courses, and instructors in those courses will be involved in simulations, problems, and other forms of assesment. The burdens of actually doing the assessment, actually giving feedback to students, would presumably be more evenly distributed that they currently are, among doctrinal and skills instructors.
As the comments on the last post in this series suggested, there are already casebooks designed to address the recommendations of the Carnegie Report. But if the aim is not only the integration of skills and ethical lawyering training into doctrinal courses but also the coordination of doctinal courses with a lawyering program, existing course materials may not be up to the task, because existing course materials are still designed with traditional doctrinal divisions (contracts, civil procedure, torts, property, criminal law, etc.) in mind and may not integrate (for example) exercises in contracts and civil procedure or torts and property. And if the aim is to structure the learning environment in a way that makes sense across the curriculum, that is hard to do in the traditional law school environment in which each faculty members develops her course in splendid isolation.