Sunday, August 4, 2013

ABA Task Force: Working Paper: Changing the Culture of Law Schools

A major conclusion of the Working Paper of the ABA Task Force on the Future of Legal Education is "There Should be Clear Recognition that Law Schools Exist to Teach People to Provide Law-Related Services." 

Related to this conclusion is the fact that "Law schools’ culture is at the root of an enormous number of current conditions and changing it is key to many solutions."  The Paper notes that "culture cannot be changed through prescription. It can only change over an extended period, primarily by influencing attitudes and behaviors to create a positively reinforcing cycle."

The Paper sets a tone of cooperation and understanding: "The Task Force has resolved these challenges by structuring the Working Paper as a field manual for people of good faith who wish to improve legal education as a public and private good."  I am sure that this sentence reminds many of Martin Luther King's Letter from a Birmingham Jail.   The authors add, "Moralizing and blaming are not productive.  What is needed instead is a dispassionate and pragmatic examination of the current situation that begins with a presumption of good faith on the part of all participants."

Turning specifically to culture, the Paper defines culture as "the cluster of beliefs and practices of a group that is passed on through social behavior."  The authors point out that "Cultures tend to be stable and not easily changed" because people are generally risk adverse.  

The Paper characterizes current law school culture as

"1. A professorial position should involve long-term security, and tenure means very strong and indefinite security.

2. Scholarship is an essential aspect of faculty role.

3. Faculty members are materially different from non-faculty members of the law school.

4. Faculty have decision-making authority for key aspects of the law school.

5. Status is important in measuring individual and institutional success."

The writers declare "A law school’s successful embrace of solutions to the challenges, problems, and demands described in this Working Paper requires a reorientation of attitudes toward change by persons within the law school. Yet this kind of broad based change in attitude is not one that can be achieved easily or quickly."

The Paper suggests changing law school culture by 1. new or strengthened requirements, 2. eliminated or lessened requirements, 3. incentives, 4. facilitation, 5. coordination, 6. enablement or empowerment, 7. pilots, experiments, and examples, and 8. encouragement.  The Paper "recommends that universities and law faculties move to reconfigure faculty role and promote change in faculty culture, so as to support whatever choices they make to adapt to the changing environment in legal education."  In particular, "these changes may relate to accountability for outcomes; scope of decisionmaking authority; responsibilities for teaching, internal service, external service, and scholarly work; career expectations; modes of compensation; interdependence; scope of the category "faculty" and internal classifications within that category; and a host of other factors."  The Paper recommends that faculty members: "1. Become Informed About the Subjects Addressed in This Working Paper, in Order to Play an Effective Role in the Improvement of Legal Education at the Faculty Member’s School and 2. Individually and as Part of a Faculty, Reduce the Role Given to Status as a Measure of Personal and Institutional Success."

The Working Paper has said a great deal about changing law school culture.  However, because of the complexity of the problems the task force was dealing with and time constraints there is more to say about changing law school culture.

This blog has previously noted that current law school culture has its roots in the "Langdellian Bargain"--the system of legal education created by Christopher Columbus Langdell in the nineteenth century.  (here, here)  Quoting from the first post:

Richard Neumann has added a novel concept to the causes of legal education’s problems, which he calls the "Langdellian Bargain." In Comparative Histories of Professional Education: Osler, Langdell, and the Atelier, he traces the origins of law schools’ current structure back to the very beginning of modern legal education in the nineteenth century at Harvard. Part of Langdell’s revolutionary approach to legal education was "that masses of students could be taught law economically in large classes, and the result would be professional learning because students in a Socratic class would do more than passively receive information, as in a lecture. The only substantial investment in such an enterprise would be the library. Personnel costs would be low compared with revenue because of the large number of students in each teacher’s classroom. Teaching would be so financially efficient that a profit could be generated each year." While the profits were originally kept by the law school, today they are shared by the university and the law school.

This bargain assured the law school’s security within the university structure. Neumann notes that "Among the benefits of the bargain to the faculty are leniency, compared with other parts of a university, in teaching requirements measured by the time needed to teach casebook courses, freeing up a substantial amount of faculty time for scholarship that is supported, for the most part, by tuition money." Similarly, he states, "The Langdellian bargain settled the financial arrangements through which legal education would enter universities. Large numbers of students would be taught, with little capital investment, and in most years law school revenues would exceed teaching expenses. That would provide resources for faculty to do scholarship on whatever subjects interest them."

 Neumann makes the following key point: "Whenever change is proposed in legal education, the threshold question is whether it would be consistent with the Langdellian bargain. If the proposal would significantly reallocate resources — either within the law school or between the law school and the university — in a way that would alter the bargain, the proposal fails because no one will voluntarily give up what the bargain has provided." In other words, resistance to change has become institutionalized in law schools!

The first thing law schools and faculties must do to change law school culture is to recognize the most important role of law schools--to educate law students so that they can serve clients and society.  If law schools and their professors truly acknowledged this role for law schools change would come easily.

Second, law professors need to familiarize themselves with the new insights on how students learn from both inside and outside law school research.  I suggest beginning with Susan A. Ambrose, How Learning Works (Jossey-Bass 2010).  Reading this book and similar materials shows that our current methods of law school teaching are very out-of-date.

Finally, change in law school culture may come easier from the bottom up.  Law professors who make innovations in their teaching can serve as examples for their colleagues.  Such individual innovations are discussed on the Educating Tomorrow's Lawyers Website.  In addition, individual professors can develop materials (texts) that can be used by others and that contain innovative approaches to teaching.  Professors will be less reluctant to adopt new teaching methods when they have materials to work with. 

Making changes to law school culture has been done at several law schools.  David M. Moss and Deborah Moss Curtis have edited a book, Reforming Education: Law Schools at the Crossroads (2012), which discusses how several law schools have brought about changes in delivery of legal education.

(Scott Fruehwald)

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