Friday, December 2, 2011
Last weekend, the New York Times published an editorial that advocated more practical training for law students. The editorial stated, ""Instead of a curriculum taught largely through professors’ grilling of students about appellate cases, some schools are offering more apprentice-style learning in legal clinics and more courses that train students for their multiple future roles as advocates and counselors, negotiators and deal-shapers, and problem-solvers." The piece concluded, "In reforming themselves, law schools have the chance to help reinvigorate the legal profession and rebuild public confidence in what lawyers can provide."
As one might expect, the editorial was vigorously attacked in the legal blogesphere. Brian Leiter believes that the structural problems in legal education cannot be solved by how law is taught. He wrote, "Can the NY Times editorial board really believe that a change in law school instructional methods will affect the availability of new jobs for lawyers, whether in the private or public sector?; That jobs will emerge from thin air to reward the newly-minted, deserving, and suitably re-educated young lawyers? Apparently so!" Paul Campos similarly wrote, "The problem, in short, is that at present ABA law schools are pumping out two graduates for every available legal job, and that the cost of acquiring what jobs there are has gotten far too high. No amount of pedagogical reform by itself is going to change that."
While I agree with the commentators that changing how we teach will not solve the structural problems in legal education, they are missing an important point: how we teach still needs to be reformed. In recent years, law schools have modified their curriculum some, but these changes have not gone far enough, as evidenced by the Carnegie Report and Best Practices. I am not advocating that the socratic method and case method should be eliminated, but that we should add additional methods to our teaching arsenal. Law teachers should include exercises on synthesize, rule-based reasoning, analogical reasoning, problem solving, etc. in their classes.
I know this can be done because I've seen it done at conferences. Last June, I saw numerous presentations at the ILTL conference in New York that integrated skills exercises into doctrinal courses. I have also seen many presentations at LWI and ALWD conferences that showed how to explicitly teach synthesis, deductive reasoning, analogies, and problem solving.
In particular, I saw a presentation at ILTL by Tonya Krause-Phelan entitled "Engaging and Assessing Our Students," which showed how to use skills exercises from the first day of criminal law. She started by using the socratic method to begin the process--to present the substantive law. She discussed the bases of criminal punishment, and we then looked at a sentencing statute. Next, we did an exercise based on a law school dress code that applied the bases of punishment. One person was the defendant, and the rest of the class was divided into prosecution or defense teams. Each of the teams discussed possible punishments, then they made their arguments before the class. She then critiqued the arguments. We did further follow-up exercises, including one that used an MBE-like question. My conclusion was that students who have teachers like Professor Krause-Phelan are more engaged, remember more, and understand better than those who have teachers who use the old methods.
There is no reason that similar methods cannot be used in all classes. The structure is simple. Teach the substantive law, then apply that substantive law by using skills and problem solving exercises. If we do this, then our students will understand legal reasoning and its application to problems much better, and they will be more pratice ready when they graduate from law school.
How do you get to Carnegie Hall? Practice, practice, practice. How do you get to be a skilled lawyer? Also, practice, practice, practice.