Thursday, February 14, 2013
A couple of weeks ago, William Henderson had a post on the Legal Whiteboard that demonstrated the success of Washington & Lee's third-year experiential program. Several blogs criticized this post. Now, Jim Moliterno, one of the creators of the program, has written a reply to the criticisms.
In this post, I would like to discuss his response to the claim that programs such as W & L's are not academic.
"There is nothing anti-academic about studying the work of lawyers. To say so betrays a false elitism more likely borne of insecurity than of truth. Many legal academics could not do what lawyers do: solve real clients’ problems that involve extra-legal attributes. The work of lawyers is sophisticated. It partakes of some of the rigor of law school teaching and scholarship, but it also relies on sophisticated problem-solving and a multiplicity of other talents. Some who claim that lawyer work is mundane and uninteresting fail to understand the nature of that work in the first instance. Some who make the claim seek cover from their own lack of capacity to do such work. Describing it as uninteresting allows the speaker to hide his or her inadequacy. The study of effective lawyers is a sophisticated inquiry. The work of excellent lawyers is not mundane. And the mundane tasks undertaken by beginning lawyers in the past are becoming commoditized and outsourced.
The current system of legal education fails to account for a simple truth: the skill-set of legal academics is not a perfect overlap with that of the role to which the vast majority of our students aspire. The 19th Century redesign of legal education was based on the premise that law school’s primary mission was not to create lawyers but rather to create law professors. (This conclusion is documented in the correspondence of the main contemporary actors involved in the reform.) Many adjustments have been made over the subsequent century and a quarter, but the remnants of those 19th Century decisions perist today.
Generally speaking, legal academics are excellent law analyzers and theorists. We are critical thinkers and precise analysts of law and its theoretical underpinnings. Students need this same talent and we are best at conveying it, especially in the traditional first-year courses and teaching modes. But to be successful lawyers, students need more than that foundational thinking skill. They need to learn how to problem solve when some of the factors are not strictly law-related; they need to learn to work in teams and to manage projects; they need to acquire a measure of business sense whether they serve as business counsel or manage their own law shop; they need to learn how to manage risk and assess the risk adversity level of clients; they need to communicate the law and its constraints to non-lawyers; they need to acquire bedside manner. In short, there is a multitude of talents and skills and attributes that students need to acquire that are not the skill-domain of academics (with many academics being an exception to this rule).
One blogger said that the 3L curriculum at W&L “focuses on practical lawyer skills.” This sort of statement sells the new curriculum far short of its reality. It actually focuses on the attributes, skills and mental habits of successful lawyers, all while providing students with substantive law and theoretical learning as well. A broad view of lawyer skills would include the mental development fostered in the first year as well. It is time to stop pretending that legal analysis is not a practical lawyer skill. It is—and it is both critical and fundamental—but it is not the only skill/attribute/talent that lawyers need to be successful."
What Professor Moliterno says about his program is true of legal education reform in general. Those who disagree wrongly think that skills (application of knowledge) can be taught separately from doctrine. Problem solving is academic. It aids in learning doctrine because it reinforces doctrine. (From a neurobiological view, it strengthens the neurons where knowledge is stored). Moreover, as Professor Moliterno said in his post, "to fully grasp and understand, students must not only acquire knowledge but they must also use it." This is the central tenet of legal education reform.