October 6, 2010
Why Can't Johnny Research Practice Law? The legal education system has broken the Social Contract
“The law schools excuse themselves by saying they are only supposed to teach legal theory. But who, and by what right, established that rule?” Sounds timely considering today's criticism of the legal academy but that statement was published almost 60 years ago. See Arch M. Cantrall, Law Schools and the Layman: Is Legal Education Doing Its Job? 38 A.B.A.J. 907, 908 (1952). In 2007, Hofstra law prof Richard K. Neumann Jr. wrote
[I]n the present situation we are not obligated to produce graduates fully educated in how to practice a profession. In comparison with medical and architecture schools, law schools in some but not all ways resemble graduate liberal arts departments — even though, unlike graduate liberal arts departments, we live off a revenue stream that is guaranteed because the degree we confer is a requirement of licensure. ... We accept all this as normative, even though it is inconsistent with education in the other professions and inconsistent with the ways lawyers are educated in most other industrialized countries.
Neumann compares medical and architecture schools educational and accreditation requirements with law schools in detail in Osler, Langdell, and the Atelier [SSRN] observing
Architecture and medicine are particularly apt for comparison with law. They are “hard” professions, requiring mastery of a great deal of specialized knowledge and skill for a practitioner to reach effectiveness. The licensing exams in both architecture and medicine (particularly the process of board certification) are, in fact, much more difficult than the bar exam. And the consequences of professional failure in all three fields can be catastrophic — failure of a building, loss of health, or loss of property or freedom.
The comparison reveals what is readily apparent, namely, despite the consequences of professional failure, very little skills learning is required in law schools while skills learning is at the core of both medical and architectural education, accreditation and licensure.
One current objection from the legal academy to the call for legal education reform is the costs associated. Neumann observes that the cost is "tiny" compared to the expense in medical schools, "which must own or affiliate with teaching hospitals and must support the extraordinarily expensive equipment, layers of bureaucracy, and support staff normally found in a hospital." End of argument.
About accreditation, Neumann writes
Law’s accreditation standards have one of the sketchiest sets of curricular requirements in the professions. ... Both medicine and architecture expect every student to learn those things, at least to the extent that a student can learn them. Although architecture and medicine have incorporated those inventories into their accreditation standards, law has not.
Neumann uses architectural schools for illustration:
When inspected for accreditation purposes ... an architecture school has the burden of proving that its students are learning everything listed in the Student Performance Criteria. During the site visit, the school must provide the inspection team with a room filled with a representative sample of student designs and other student work. The accreditation procedures set out detailed instructions on how the school must select the student work, display it, and annotate it, and they impose on inspection team members an individual and joint responsibility to assess student designs and to decide whether they demonstrate that students are learning what the Student Performance Criteria require. To appreciate this kind of site visit, imagine that (1) some version of the MacCrate Report’s Statement of Skills and Values were incorporated directly into the accreditation standards governing law schools; (2) law schools were required to produce for accreditation site teams portfolios of student work, including motions, briefs, contracts, and recordings of negotiations and simulated courtroom work; and (3) reviewing this material for compliance with the MacCrate SSV were to occupy a substantial amount of an inspection team’s time.
Imagine indeed because nothing in the current draft of the ABA's "outcomes" standard suggests anything like this is going to be required.
Neumann also observes that unlike medical and architectural schools, the undergrad prerequisites for law school adminission are, well, let's put it this way, would a grad with a BA in, oh I don't know, let's pick cultural anthropology and with no biology, chemistry, engineering or math education qualify as a top candidate for medical or architectural school because of his or her high GPA and standardized entrance exam score? Perhaps universities should convert law schools into undergraduate departments that offer a major in law for a BA followed by a legal profession infrastructure that requires rigorous practical training like some Western European countries do.
Pedagogical tweaking? Following the comparison to medical schools, Christine Nero Coughlin, Lisa McElroy and Sandy Patrick focus on the “see one, do one, teach one” approach used in medical education "because of its broad potential applicability in legal education, especially insofar as it seeks to hone students’ inductive and deductive analytical skills. Because medical students and law students develop early professional reasoning skills in parallel ways, successful medical school pedagogy may be particularly applicable to the law school setting." Quoting from the abstract. See See One, Do One, Teach One: Dissecting the Use of Medical Education’s Signature Pedagogy in the Law School Curriculum, 26 Georgia State University Law Review 36 (2010) [SSRN]. Good luck with trying to get the legal academy on the same page that way, particularly when a strong case can be made that the professoriate has lost its practical moorings to such as extent that the typical tenured faculty is simply not qualified. See Brent E. Newton's Preaching What They Don't Practice: Why Law Faculties' Preoccupation with Impractical Scholarship and Devaluation of Practical Competencies Obstruct Reform in the Legal Academy, 62 South Carolina Law Review __ (Nov. 2010) [SSRN].
In Search of a Socially Responsible Professional Education Model for Law. As noted above, Neuman oberves that no other industrialized democratic nation, perhaps with the exception of Canada, requires students to spend so much time receiving an academic education while offering so little skills training. Nothing new here. In fact Neuman cites Joel Seligman's The High Citadel: The Influence of the Harvard Law School which was published in 1978. He does not offer a comparative analysis of US legal education and European models. But Peter Lyons calls for one in his contribution to The Future of Legal Education: A Skills Continuum (White Paper Prepared by the National Institute for Trial Advocacy, 2009), "Study and Mirror Effective Components of the UK Law Society Model":
The UK Law Society Model provides important parallels and contrasts to the system currently in place in the US. In particular, with a focus on providing the type of practical, real-world skills training that enable the transition from law student to fully-billable and productive lawyer, we believe a careful review and analysis of the ongoing changes in the UK could provide important insight into needed changes, both in content and in concept, to the U.S. methods.
What's noteworthy is that Lyons' recommendation is a call for the legal academy, bar associations and CLE providers to work together to produce structural reforms. That, however, may require reaching a broader consensus, one that includes the bench and bar more generally, namely a national Standard of Practice for U.S. Attorneys. Steve Gibson, COO of NITA, characterizes this as "[p]erhaps the most far-reaching and simultaneously least tangible of our recommendations" in his contribution to The Future of Legal Education: A Skills Continuum (White Paper Prepared by the National Institute for Trial Advocacy, 2009).
Personally I have little faith in the ABA promulgating accreditation standards producing substantive reforms and little hope that the more comprehensive and systematic recommendations offered by Lyons and Gibson will yield anything productive whatsoever. Ah, wait, let me qualify that -- unless the Chief Justice of the Supreme Court of the United States chairs a blue-ribbon commission intent on structurally reforming legal education. Everyone listens and acts when the CJ speaks, right? For now, it is fair to conclude that the legal education system has broken the Social Contract.
“Society’s contract with the law schools is to train lawyers, not to produce half-lawyers, taught some of the theories of the law but not how to put those theories into practice.” -- Arch M. Cantrall
Law Schools and the Layman: Is Legal Education Doing Its Job? 38 A.B.A.J. 907 (1952).
End note This concludes our four-part Why Can't Johnny Research Practice Law series of posts. Earlier posts are listed below:
- Would you hire a law prof to represent you?
- Academic law libraries are not wasting a perfectly good recession to develop collections that look more "real world."
- Is Johnny thinking like "Chad," the LRW instructor, instead of thinking like a law librarian?
And yes, I intentionally decided to open and close with quotes from Cantrall. Why? Because 1952, the year his ABA Journal article was published, is the year of my birth and I expect nothing to have changed when the year of my death is engraved on my tombstone. [JH]
Sometimes, I think the case-book approach to law school is the most absurd way I have every heard of educating--or training--anyone about anything. In my opinion, it's definitely one of the reasons that law school doesn't prepare students for practicing law. Good instruction MUST almost always involve definition, classification, and specific example. The case-book approach teaches everything by using only specific examples. Try to imagine biology or alegbra or medicine taught by using only a series of specific examples. Imagine surgery being taught without ever defining what a scapel is--or what class of surgical instruments it belongs to.
But at other times, I think the case-book approach IS beneficial because it requires the student to teach himself or herself, something that practicing lawyers have to do about many issues.
Regardless, the way we do things now just doesn't seem to work very well.
Posted by: John Hightower | Oct 6, 2010 7:32:17 AM