Tuesday, March 13, 2012
More On The Influence Of The Langdellian Tradition And Langdellian Bargain On Contemporary Legal Education
In The Law School Critique in Historical Perspective, A. Benjamin Spencer presents a study of the problems in legal education from a historical perspective. He traces the problems to the Langdellian tradition, and he places special emphasis on those commentators who have criticized legal education for failing to prepare their graduates for practice.
Like the Neumann article, which I discussed in two posts over the last week, there is a great deal of useful insights in Spencer’s article. He discusses the remnants of the Langdellian tradition in contemporary legal education and he concludes, "Although these contemporary reforms are appropriate moves in the right direction that will yield results on the margins, to this point they have not resulted in a wholesale change in the practice-readiness of American law school graduates, a failing reflected and explored in the 2007 Carnegie Report and other recent studies." He continues: "Law school does not routinely provide training in many of the practice skill areas—such as drafting, counseling, planning, client development, management—needed to be a successful practitioner; only a tiny percentage of law schools require clinical training and the majority of students graduate with no clinical experience; its primary pedagogical approach (the case-dialogue method) is ineffective and demoralizing; its main approach to assessment remains the final essay exam, which reflects little about the professional competency of students and comes too late to allow self-improvement; faculty incentives promote scholarship over the needs of students; many professors (particularly the more recent ones) have little or even no experience practicing law and lack membership in the bar; and law school costs so much that most graduates have mammoth, mortgage-like debts that limit their economically viable options after graduating. This is no way to produce competent legal professionals."
Concerning the law school curriculum, he asserts, "One consequence of this doctrinal approach is that the study of law is conceptualized as the study of legal rules—a Langdellian innovation—rather than a broader study of legal practice involving the study of legal regulation as a social phenomenon and training in the full array of methods and techniques that legal practitioners must be able to employ. Another consequence of this academic, doctrinal dominance is that law faculties built to deliver such curricula tend not to consist of experienced practitioners but rather career academics focused on legal scholarship." Overcoming these problems "means that the current relationship between doctrinal, practical, and professional instruction must become more integrated and balanced: Skills-based and practice-centered instruction and training should be a more substantial part of the law school experience, with substantive knowledge instruction serving as the foundation for and compliment to practical professional education. Further, to facilitate the transition from student to practitioner, doctrinal instruction must move more quickly into being taught in context from the operational perspective, rather than more abstractly through the prism of judicial opinions and the case method. Finally, students must have more opportunities to collaborate in team settings and to work on solving problems that blend legal and other issues in a single setting."
Concerning the case-dialogue method, Spencer argues, "the ability of the case-dialogue method to transmit analytical skills effectively has never been demonstrated. . . . Additionally, the type of thinking promoted by the method is limited to certain kinds of legal analysis, neglecting some of the basic problem solving skills that today’s practitioners need to develop solutions to their clients’ problems." He also criticizes the use of the Socratic method in large classrooms because it tends to focus attention on a discussion between a few students and the professor." He adds: "Although the students involved may benefit to some extent, the method is less effective in instilling legal analytical skills vicariously to observers not involved in the discussion, creating diminishing returns as the class grows in size." Consequently, he suggests that law schools move the Socratic method to a smaller classroom.
He also thinks that "the case-dialogue method is an inefficient means of transmitting substantive information and is limited in its ability to impart the full range of competencies that students need to become successful legal professionals." He notes, "Insights from learning theory reveal that teaching focused mainly on purely abstract concepts divorced from their context—something that fairly characterizes the case method—is less effective than teaching that recognizes that we experience information in many different ways and at different levels of abstraction." From this, he concludes, "Law school learning exclusively rooted in symbolic, abstract experience is less likely to be effective in giving students the depth of understanding requisite for moving towards proficient legal practice. Further, to the extent that legal learning is exclusively at the abstract level, it becomes difficult for students to synthesize learning from different areas or to operationalize concepts for practical application and the resolution of real-world legal problems." He continues, "different types of learning experiences are possible and  legal teaching needs to make an intelligent use of a mix of these experiences to give students the level of understanding needed for effective learning and translation into practical application." Finally, "a thorough understanding of legal principles and the ability to ‘think like a lawyer’ needs to become the foundation for the next step in professional development—developing the ability to handle complex problems of clients in a skilled and professional manner."
His final criticism is that "the case-dialogue method presents the law through the lens of (mostly appellate) litigation, and does so in a highly formalized and a contextual manner that skews students’ perspective away from the realities and complexities of raw facts, clients, and professional responsibility." His solution: A true case method, as Jerome Frank recognized long ago, would entail a study of the entire ‘case’ rather than the edited and refined representation of a dispute one finds in appellate opinions."
On student assessment, he writes, "there was and still is a gap between the professed learning objectives of many law school classes—teaching students to think like lawyers and to master certain legal doctrines—and the dominant method of measuring students’ attainment of that learning—the final essay exam, which tests more so what a student knows rather than what a student can do" There are two problems with this kind of assessment: "First, it is purely summative, in that it comes at the end of a course and attempts to measure learning after the course has been completed. . . . Second, while typical essay exams do, to some extent, engage the analytical abilities needed of a judge or an advocate arguing a legal point, such skills are not the sole or principal skills required of most competent practitioners." In the alternative, "Proper assessment is about evaluating a student’s attainment of specified learning objectives. It involves the setting of clear goals regarding what students are supposed to learn and know how to do after completing a course followed by the administration of an instrument that measures their performance against those stated objectives."
Finally, "contemporary law school faculties are dominated by tenured and tenure-track professors who are less experienced practitioners than they are highly credentialed legal scholars." He points out, "Traditional doctrinal law faculty currently maintain an obligation to contribute in the areas of teaching, scholarship, and service, carrying a typical teaching load of three to four courses per year and being expected to produce scholarly publications on a regular basis. In return, this category of professors is highly compensated, in an effort to attract the most highly credentialed and most capable scholars to a school." He argues there are two reasons the traditional law faculty is problematic. "First, as just mentioned, traditional doctrinal professors are not typically hired for their practice experience, of which they tend to have little or none. . . . Second, traditional law faculty members are expensive from the perspective of the law school, as their salaries account for a large share of a law school’s budget and tend to be impervious to dramatic reductions." He concludes: "Ultimately, schools interested in moving their curriculum in a more practice-oriented direction will have to give serious thought to revising their hiring patterns to identify experienced practitioners who have the potential to be great classroom teachers."
In sum, like the Neumann article, Spencer shows how the Langdellian Tradition and "Langdellian Bargain" (discussed here) have shaped and restricted contemporary legal education. As Spencer recognizes, "Unfortunately, the fraying of the foundation for the justification and perpetuation of the Langdellian approach is not likely to usher in fundamental change with ease. Law faculty benefit from the current structure of the course delivery system and may be loathe to take on work that will compromise time for other pursuits or impose burdens without increasing compensation." "Further, the profile of current law faculty—having been educated under the Langdellian system and having had little to no practice experience—renders them less sympathetic to the urge toward practice-relevance and less competent to devise and deliver a program with such an orientation."
Some of the changes Spencer proposes include:
"Modernize the first year to include an introductory overview of the legal system and the legal profession, as well as subjects more pertinent to contemporary legal practice such as transnational law and administrative law;
Impose a live-client experience requirement, having all students participate in either a clinical course or an externship;
Extend legal research and writing education into the second year, featuring more extensive simulation training focused on certain areas such as litigation and transactional skills;
Redesign the content of traditional courses away from an emphasis on cases toward more source material and practice documents, while redesigning the delivery of courses around more group work and problem-solving exercises in the lawyer role during class meetings;
Hire full-time, part-time, and adjunct faculty who can bring more extensive and contemporary practice experience to bear on the design and delivery of the curriculum;
Develop capstone courses that enable third-year law students to synthesize their learning across courses and apply it in practice settings."