Sunday, January 15, 2012

Law faculties struggle to find the right curricular balance between legal theory and practical skills

An article from the National Law Journal called What is law school for anyway? reporting on the recently concluded AALS annual conference in D.C.  An excerpt:

. . . there remains a gap between the magnitude of change advocated by some within the profession and the modest innovations law schools are pursuing [to respond to the changing legal job market]. Those innovations include a wider array of clinics, harnessing technology in simulations and student projects, and teaching transactional lawyering skills.

"I think they are rearranging the deck chairs on the Titanic," said Susan Hackett, chief executive officer of consulting firm Legal Executive Leadership and former general counsel of the Association of Corporate Counsel. "The discussion seems to be, 'Let's add a Thursday evening extra-credit course on the legal profession that meets for a couple of hours.' That's just tweaking around the edges."

Instead, Hackett suggested a re-engineering of law curricula to include an initial phase of core courses followed by a year of executive education-style classes covering topics including business skills, legal technology and behavioral management. The final phase would involve clinics or externships in law firms, legal departments, government agencies or nonprofit organizations. These could replace the traditional law firm summer associateships and would be more substantive, she said.

Missing in the conversation was any focus on what skills corporate clients actually want in their lawyers, Hackett said, such as the ability to solve problems and understand financial statements. "I truly think there are a significant number of people in legal education who think that what a client wants is irrelevant," she said. "They just want to teach the law."

Others warned that framing the discussion solely in terms of what large law firms and corporate clients want ignores that the vast majority of law school graduates don't work in so-called Big Law, but rather in small firms, solo practice, government or nonprofits — or even as nonlawyers. Identifying exactly what skills and knowledge students should take away from law school is more complicated than critics suggest, said University of Richmond School of Law Dean Wendy Perdue and Northeastern University School of Law Dean Emily Spieler.

Not only that, but eschewing traditional law and interdisciplinary courses in favor of trendy practical skills and legal-profession classes could undermine the larger mission, said Thomas Harvey, a 2009 graduate of Saint Louis University School of Law. Harvey and several classmates founded the nonprofit legal aid provider ArchCity Defenders shortly after graduating — in part, because they were inspired by a course in critical race theory.

"Why is the failure of high-priced law firms to adequately train their associates the failure of law schools?" Harvey said. "I think law school works because it's a broad, rather than a narrow, experience. I fear for a day when that is eliminated from the curriculum in favor of an externship."

Peter Kalis, chairman and global managing partner of K&L Gates, said he considers the criticism leveled against law schools misplaced. Law schools' failure lies not in their inability to teach practical skills, but rather in their diminishing ability to produce lawyers "able to speak the language of the law with confidence," he said.

"My viewpoint is not all that representative of managing partners, I'll admit, but I believe law schools should concentrate on the education of law students from the perspective of acculturating them in the rule of law," Kalis said. "Law students should spend that time being immersed in and becoming familiar with common law subjects."

The Association of American Law Schools attendees largely agreed that, in the future, most law schools will combine traditional bread-and-butter law curricula with courses, externships and clinics geared toward building real-world skills and knowledge about the legal profession. "It's OK that some traditional faculty members want to keep doing what they do, as long as other people are out there experimenting," Carle said.

FINDING A BALANCE

Finding that balance is something schools are only beginning to explore. "Certainly, this issue has gotten a lot of attention within the academy," said David Wilkins, director of the Program on the Legal Profession at Harvard Law School. "Whether law schools are willing to actually change is a much more difficult issue. There is a lot of dissatisfaction with law school, but not a lot of strong ideas about how they should change."

Despite the talk, responding to changes within the profession does not rank as high with law faculties as their scholarly research, said Gillian Hadfield, a professor at the University of Southern California Gould School of Law. Morgan agreed: "Real, substantive change is still in the very early stages."

Indeed, most law schools are taking baby steps with pilot programs and new courses that tend to serve relatively small numbers of students and require more resources than traditional lecture courses. Washington and Lee University School of Law is a notable exception. It did away with its traditional third-year curriculum in 2009 in favor of a year of hands-on instruction including clinics, externships and simulation courses.

As ardently as law firm leaders and other practitioners say they want law schools to step up and better train lawyers, the legal hiring market has yet to signal that it recognizes the value of innovative teaching and curricula, said William Henderson, a professor at Indiana University Maurer School of Law – Bloom­ington who studies the profession.

"There's no employer out there right now — not law firms, not the Department of Justice, not the ACLU — that are seeking out these graduates. These programs haven't affected hiring patterns," Henderson said. "It's still all sorted out with credentials. It's based on the brand of the law school."

Wilkins concurred that achieving sweeping reform would be difficult until legal employers create incentives by hiring students from these innovative programs. "There's a lot of pious rhetoric coming out of law schools and the profession about what people want," he said. "They say they want this or that, but who do they ultimately hire? The kid on the law review."

He urged practitioners to engage with administrators at their alma maters and actively support curriculum reform. Carle noted that most law schools have advisory committees that include practitioners; those panels should spearhead conversations about how to better connect the academy with the legal profession, he said. "The solution has to be two hands reaching across to touch each other," Henderson said. "The law schools have to do this, but there also has to be an open-minded employer on the other end."

(jbl).

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