Monday, May 28, 2012
This blog has discussed several articles that have criticized the Carnegie Report for not going far enough. Kristen Holmquist has written an article, Challenging Carnegie, which disagrees with some of the fundamental conceptions of this report.
Professor Holmquist attacks the Carnegie Report’s notion that law schools are good at teaching students to think like a lawyer and its distinction between thinking and practice. Rather, she stresses "the interdependence of knowing and doing that is at the heart of lawyering." She bemoans the lack of context that law students receive in classes largely taught by the case method. She declares, "But legal education‘s narrow focus on case-method learning may also deny students the opportunity to engage in sophisticated higher-order thinking about law and policy, about problems and goals, about potential paths, obstructions, and solutions."
She specifies, "Carnegie‘s stress on the distinction between the cognitive and the practical, ‘formal knowledge’ and ‘the experience of practice’, is a mistake because it belies the interrelatedness of understanding, experience, evaluating and creating. The separate cognitive and practical categories are inconsistent with most everything we know about how people learn. Higher-order thinking skills like evaluating and creating come only after repeated opportunities to apply, or act on, memorized and then understood information." She continues, "In lawyering terms, the Carnegie categories suggests that law schools owe their students the opportunity not only to learn to think like lawyers, but also to act like them. Yet this cognitive/practical divide is as untenable in lawyering as it is in learning." She concludes that "The result of these formal categories is to define ‘thinking like a lawyer’ downward, limiting it to a detached-from-much-context doctrinal analysis and application."
She notes, "Education research makes clear the iterative nature of learning: one acquires content knowledge, ‘uses’ that content in relevant ways, and thereby gains a deeper and more nuanced understanding of the original learned content." She writes, "By dividing practical from cognitive, doing from thinking, the Report avoids asking how lack of experience with ‘using’ legal doctrine in messy, real-world-like situations denies students an opportunity to engage in higher-order lawyerly thinking." She then asserts, "the result of drawing artificial boundaries between the cognitive and the practical is to limit what it means to think like a lawyer in a way that allows the Report to say that legal education succeeds in the cognitive sphere, when it could be said that our pedagogy ‘sharpen[s] the mind by narrowing it.’ The case method, repeated over and over again, sacrifices complexity for precision, and as it stands, there is no systematic method for folding cultural, factual or procedural complexity back into the discussion."
Holmquist argues for a broader definition of thinking like a lawyer: "to prepare lawyers who will ‘contribute to the public good and serve their clients effectively and ethically.’" She mentions two possible approaches to better understand lawyerly thinking. First, she takes an empirical approach based on the study by Marjorie Shultz and Sheldon Zedeck, Identification, Development, and Validation of Predictors for Successful Lawyering. "Through hundreds of interviews with groups of individual lawyers, they identified twenty-six ‘Effectiveness Factors; related to competent lawyering. . . . At the end of the process, Shultz and Zedeck had a range of behavioral examples for each factor that lawyers were asked to assess in terms of the ‘level of effectiveness’ it showed." She points out that "A lawyer‘s need to understand her role within institutions and society might be informed by: problem solving, ability to see the world through the eyes of others, strategic planning, networking and business development, developing relationships within the legal profession, community involvement and service. And judgment and wisdom are expressed throughout the list, but most especially in the following: creativity/innovation, problem solving, practical judgment, strategic planning, integrity, self-development." She continues, "A lawyer cannot provide advice and counsel to her client without having analyzed a problem, researched the law, and interviewed relevant parties, and so on. The competencies on the list are wholly iterative and interdependent. Their interaction shapes the ‘thinking of a lawyer’ beyond the narrow, hyperanalytical definition that both the Report and law school itself tends to rely on." She writes, "Educators who hope to rely on these effectiveness characteristics to reform legal curriculum and pedagogy must explore both ‘what’ and ‘how.’ What would a student need to know to become competent lawyers under this fuller definition? What does it mean to teach creativity? Problem solving? Judgment? Influencing and advocating? And, second, how might we go about teaching these competencies?"
Second, Holmquist advocates drawing on cognitive psychology: "The lawyering-as-problem-solving literature springs from the cognitive science work on the same subject in other domains. Cognitive psychologists define a problem, simply, as any situation in which the current state of affairs varies from the desired end point. And solving that problem entails a series of decisions and actions, each building on the last, in order to move the world closer to the goal state.In order to make these decisions, or encourage others to, we rely on stock stories, or schemas, familiar stories and arguments that act as heuristics and allow us to create meaning through narrative." She notes that "Individuals develop mental databases of stock stories through experiences direct and indirect, individual and cultural. These stock stories become categorizing and ordering tools." She adds, "Not only do our stock stories allow us to make sense of our world, they also help us make choices, and to persuade others to do the same. ‘They enable us to identify a menu of possibilities for asserting and responding to our own needs and aspirations and the needs and aspirations of others.’Our stock stories – past experiences of our own or others that we‘ve stored away – suggest the efficacy of one path, the risks of another. . . . When we face choices–or problems–stock instruments help us frame the problem, evaluate potential solution paths, and decide on a course of action."
The same occurs in legal thinking: "Lawyers as problem solvers rely on legal–and cultural–stocks in order to try to move the world in directions that benefit their clients. This movement involves persuasion of one form or another – whether it‘s persuading a court to find for one‘s client, an opposing party in litigation to see one‘s settlement offer as a good deal, or collaborative party to undertake some kind of a joint venture. The question of how to persuade through stocks in a legal context - or, how to ‘lawyer’ – involves understanding empirical, instrumental, and normative questions." She notes, "On the most obvious level, legal precedent serves this function." "But lawyering involves appealing to stories and arguments that are relevant and persuasive for larger empirical, cultural, and social reasons, as well. Law is not an organic thing unto itself, but a reflection of broader cultural and social forces and understandings (mentally represented through stocks).Effective lawyering must appeal to these broader forces and stories. Effective lawyers persuade by understanding and manipulating the stocks of the relevant arbiter."
She asks, "First, what would a rich database of stock lawyering stories look like; and second, how might we help our students build it in ways that enables them to progress toward, eventually, expert status?" "The recent graduate’s mental library largely lacks stock stories that help her assess how, and in what institutions, and by relying on what methods, she might--or might not—use the law to help a client solve his problem. A curriculum geared toward this view of lawyering must address this lack of context and content, asking - what are a lawyers‘ stories? And what might a lawyer need to know about how to frame and manipulate them in order to serve her client?" Second. "how does one build the organized library of stock stories and arguments, problem framings and solution paths that precede good judgment and assist in bringing about welcome outcomes? The answer, in short, is experience. . . . experience with working with, recognizing, and defining ‘problems,’ deploying legal arguments and tools while partnering with a client in order to resolve those problems, acting in the various roles and institutions a lawyer might position herself – experience of this sort is fundamental to gaining expertise." "Legal problem-solving skills . . . can be learned in the classroom as well outside of it, so long as the classroom is designed to give students experiential chunks and to help them develop the habits of thought inherent in the formal model [that] improves subsequent problem solving done at the naturalistic end of the spectrum."
Finally, she proposes "that, at least in part, we shift our pedagogy to give students more experience with understanding legal problems from the ground up. So much has happened in a case–lawyers and clients and judges have already made so many decisions–before it ever reaches the phase of an appellate opinion." She asserts that "Both the cognitive psychology literature and our own experience tell us that students learn best when they get their hands dirty." She remarks, "Many of the forms, or stages, of lawyerly thinking might be incorporated into the classroom. . . . Among the major changes a teacher might choose is a more inclusive notion of the case method, one that leans less heavily on appellate opinions and spends more time building a case from the beginning stages. Students would read case files that included client interviews, information elicited through discovery, and a series of cases that function as controlling and persuasive authority. Or case files could set students up to think through transactional processes, providing a nice counterbalance to legal education‘s current litigation-heavy curriculum." In addition, "Teachers might rely heavily on a casebook, but work one or two ongoing case files into the course. Or they might rely wholly on a casebook but consistently work the lawyer‘s point of view into the classroom discussion."
Holmquist has done an excellent job of filling in some of the lacunae in the Carnegie Report. I agree that you cannot separate knowledge from doing. Doing helps one to learn and remember better, and doing requires knowledge. Similarly, learning theorists have shown that understanding context helps students learn. (see Teaching Context and Purpose in Law School Classes) Lawyering in the real world is messy. Problems don’t come labeled as a torts problem or a contracts problem, and problem solving often involves areas outside the law. Students need to be able to apply their skills across domains. Moreover, using ideas from cognitive psychology on learning theory helps us be better teachers. Is the case method the best way to teach students, or is it just one of many tools we should be employing? I especially like Holmquist’s suggestion that we include case files in first-year courses. I do not believe that we should do away with appellate cases completely, but students need to learn the law from multiple viewpoints and sources.