Tuesday, May 14, 2013

Professor Jim Moliterno on Resistance to Change in Legal Education

Professor James Moliterno has posted an article on SSRN concerning the resistance to change in legal education.

The Future of Legal Education Reform

Abstract: "The history of the legal profession’s self-regulation during self-identified crisis times (such as the present) is not a happy one. The profession has resisted change. When it has instituted change, such change has been directed not at the existing members of the profession, but at new entrants. Mostly, the change that has come has been forced by the influence of society, culture, economics, and globalization — not by the profession itself. These change agents include Watergate, communist infiltration, the arrival of waves of immigrants, the litigation explosion, the civility crisis, and the current economic crisis that blends with dramatic changes in technology, communications, and globalization. In every instance the profession has held fast to its history and its ways long after those ways have become anachronistic. The profession seems to repeat the same question in response to every crisis: How can we stay even more the same than we already are? Legal education has fared little better in this mode."

Some key excerpts:

"The short story is that the legal profession is ponderous, backward-looking, and self-preservationist."

"Albert Einstein taught us, 'You cannot solve a problem from the same consciousness that created it. You must learn to see the world anew.' The American legal profession tries to solve problems with the same thinking that created them. It clings to the past and precedent. It 'protects, preserves, and maintains.' It acts as if preserving the status quo will solve all, when in fact it will solve nothing. This backward thinking, the same thinking that preceded the crisis, exacerbates the impact of the crisis."

"Often justified for its 'gatekeeper' function of protecting the public from incompetent lawyers, the profession has lost sight of the function of the bar exam as a gatekeeper. To be a rational gatekeeper, passage through the gate must be related to what is on the other side of the gate—in this instance the practice of law."

"I have met lots of lawyers in my thirty-two years since law school. So far I have never had a lawyer say that she solved a client’s problem solely based on what she learned during a particular Tuesday afternoon session of the Torts or Contracts class. Client problems are more complex than that, and almost always require some measure of synthesis of topics."

"By pressuring students to be prepared for a dizzying number of subjects, the bar exam impedes reforms that would assist students in being prepared to practice law."

"But rather than abandon the opportunity for education in the third year, legal education should produce value in the third year."

"The most advantageous answer for this kind of education is sophisticated experiential education. The legal education system should abandon the term 'skills education,' because its usual meaning has become too narrow and too pejorative in some circles. So, adding to experiential education means more clinics, to be sure, and now-traditional skills courses (legal writing, trial advocacy, negotiation, etc.), but it means far more. This 'far more' should come in the form of sophisticated, practice-setting, sensitive simulation courses taught by a mixture of professors and expert practitioners. In these courses, students are urged to make the transition from student to lawyer. Students continue to learn law, but now do so as lawyers do, with a client’s need as the driver, rather than as students do, with a three-hour exam as the driver. In such circumstances, students transition to the thought processes of lawyer-problem-solver and away from learning for no more reason than acquiring knowledge. This kind of third year could be a year with one foot in the academy and one in the practice. Far from being exclusively skills courses, these courses develop habits of the lawyer’s mind that are not developed in the traditional courses aimed at appellate legal analysis. The third year should be a kind of “'mental pathways’ transition time.'”

(Scott Fruehwald)


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