Tuesday, March 26, 2013

Who Should Be The "Core" Faculty In The 21st-Century Law School?

According to Deborah J. Merritt, it should be the current legal writing and clinical professors.  She writes, "The tenured and tenure-track professors form the core of a law school faculty. At most of our schools, those faculty teach doctrinal courses and seminars; they also devote considerable time to research. Over the years, we have added clinical and legal writing professors to our faculties, but they rarely are part of the core. These writing and clinical professors are paid less, usually lack tenure, and bear fewer expectations for scholarly research. They may vote on curricular matters; they may even chair committees and perform significant administrative work for the school. Their lack of tenure and lower status, however, make them more cautious about their votes and the opinions they voice. They know that they are outside of the core."

She continues, "I would flip this structure. If I were starting a law school, I would hire experienced legal writing and clinical professors as the core tenure-track faculty. At existing schools, I would move as quickly as possible to that structure. Why? The legal writing and clinical professors are the ones who know best how to teach what we claim to teach in law schools: how to think like a lawyer."

Her reasons include:

1. "Legal writing professors have analyzed the components of thinking like a lawyer, developed the vocabulary for explaining that process to students, and created hundreds of well designed exercises."

2. "The traditional law school classroom, with its case method and socratic questioning, is better than pure lecture at teaching critical reasoning. But it is still a woefully inefficient and ineffective process of teaching students how to read cases and statutes, how to synthesize those materials, and how to apply them to the facts of novel problems."

3. "If you want a professor who knows how to teach legal analysis to first-year students, and who has studied the pedagogy of teaching those skills, then choose a legal writing professor."

4. "The same is true of clinical professors in the upper level. These professors know how to build on the reasoning skills that students developed in the first year. . . .  Clinical professors are accustomed to helping students identify unfamiliar areas of law that may affect their clients, research those issues (using an appropriate combination of secondary sources, cases, and statutes), and think critically about the sources in connection with a particular case. They are also experienced at the other types of critical thinking (fact analysis, separating wheat from chaff in client or witness interviews, problem solving, etc) that students should encounter before graduation."

She concludes, "If we want a tenured law faculty that focuses on teaching students how to 'think like a lawyer,' then legal writing and clinical professors fit the bill. I would put them at the core."

She adds, "These professors could also teach doctrinal courses. Currently, we swamp legal writing professors with too many students. If each taught a section of 18-20 students, the professor could teach two legal writing courses (one each semester) plus a large section of a doctrinal first-year course. These professors would bring their pedagogic skills to those doctrinal courses, enhancing the teaching of analysis and reasoning throughout the first-year curriculum."

As I have noted before, law schools need a new type of teacher--one who understand law practice and who uses the latest teaching techniques.   These teachers already exist in the legal writing classroom and in the law school clinic.  Many of the things that legal education reformers are advocating today have been used by skills professors for years.   I learned them from my mentors, such as Linda Mischler and Verna Sanchez, through legal writing books and articles, and at legal writing conferences.  The Langdellian method may have worked in the nineteenth century, but today we know so much more about how students learn and how to teach them that it is absurd to focus law schools around outdated teaching methods.  It is time for radical changes in the delivery of teaching at law schools.  It is also time for radical changes in who does the teaching.

(Scott Fruehwald)      

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