Wednesday, January 8, 2014

A Reply to Brian Leiter's Comments on the Proposal to Require 15 Credit Hours of Experiential Classes

While he doesn’t dispute the value of experiential learning in law school, Brian Leiter believes that it should not be required. (here) He declares, "As a general pedagogical matter, I favor choice. I also think law schools and law professors have an obligation to provide guidance, since even after the first year, law students still need a lot of guidance. But substantive guidance is one thing and more requirements is another. And there is no reason to mandate as a blanket requirement 15 hours of experiential learning."

First, I disagree with Professor Leiter’s position because I believe that without an experiential requirement most law schools will not offer enough experiential courses to allow law students to take the experiential courses they want and need. A couple of years ago, I had a post on this blog concerning how law students could help legal education reform. One of my suggestions was for them to take skills courses so that law schools would see that students wanted them. My post was picked up by a student blog called Law Schooled (now unfortunately defunct). The blog stated (and I also received several emails that stated) that the problem with my suggestion was that their law schools didn’t offer enough skills courses. They wanted to take skills courses, but they were overbooked.

The problem, however, goes deeper than just the fact that law schools do not offer enough experiential courses. The root of the problem is the inertia that exists in legal education. Professor Friedland has recently stated, "For more than a century, traditional legal education has relied on the appellate case opinion as the primary vehicle by which students are taught critical thinking in core courses. The critical thinking focus, often called ‘thinking like a lawyer,’ and the appellate case opinion became the familiar, deeply embedded rails on which the legal education train still rides. The emphasis on appellate case analysis became so strong, however, that other contexts were minimized, especially in the core curriculum. The marginalized alternative learning structures included experiential modalities and the context of lawyering relationships—between lawyers and clients, witnesses, judges, and the larger community." (6 N.E.U.L.J. 253)

He continued, "Despite calls to revisit the cognitive focus of legal education by such respected sources as the Carnegie Foundation, meaningful institutional alternatives have been difficult to implement. There are many reasons for this inertia. As one commentator has noted, "law schools, like most established enterprises, change only when they have to." [Victor Fleischer]

For Friedland, the core of the problem is rhetoric: "While change in legal education might be inevitable due to increasing economic pressures, a gateway obstruction remains—the descriptive rhetoric and narrative of core legal education. . . . If core curriculum is to undergo a meaningful transformation, it will be necessary to modify existing rhetoric, creating instead a new mosaic without the historical baggage. This mosaic should encompass a narrative referencing lawyering relationships and experiential components."

Richard Neumann thinks the problem goes even deeper; he places the blame on the Langdellian Bargain, which had institutionalized a resistence to change in law schools. In Comparative Histories of Professional Education: Osler, Langdell, and the Atelier, Neumann traced 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. He concluded that this bargain assured the law school’s security within the university structure.

He noted 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 stated, "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 added: "Law faculties today still consider themselves bound by and benefitting from this bargain, even though a transcript of a contemporary doctrinal class would typically reveal much lecturing and little Socratic questioning (which would have disappointed Eliot)."

Neumann concluded, "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!

A. Benjamin Spencer similarly traces the problems in legal education to the Langdellin tradition. (here) Concerning the case-dialogue method, Spencer argues, "the ability of the case-dialogue method to transmit analytical skills effectively has never been demonstrated. . . . Additionally, the type of thinking promoted by the method is limited to certain kinds of legal analysis, neglecting some of the basic problem solving skills that today’s practitioners need to develop solutions to their clients’ problems." Concerning whether recent changes in the curriculum are enough, he declares, "Although these contemporary reforms are appropriate moves in the right direction that will yield results on the margins, to this point they have not resulted in a wholesale change in the practice-readiness of American law school graduates, a failing reflected and explored in the 2007 Carnegie Report and other recent studies."

Professor Spencer concludes that overcoming these problems "means that the current relationship between doctrinal, practical, and professional instruction must become more integrated and balanced: Skills-based and practice-centered instruction and training should be a more substantial part of the law school experience, with substantive knowledge instruction serving as the foundation for and compliment to practical professional education. Further, to facilitate the transition from student to practitioner, doctrinal instruction must move more quickly into being taught in context from the operational perspective, rather than more abstractly through the prism of judicial opinions and the case method. Finally, students must have more opportunities to collaborate in team settings and to work on solving problems that blend legal and other issues in a single setting."

Similar to Neuman, he views the problem as, "contemporary law school faculties are dominated by tenured and tenure-track professors who are less experienced practitioners than they are highly credentialed legal scholars." He points out, "Traditional doctrinal law faculty currently maintain an obligation to contribute in the areas of teaching, scholarship, and service, carrying a typical teaching load of three to four courses per year and being expected to produce scholarly publications on a regular basis. In return, this category of professors is highly compensated, in an effort to attract the most highly credentialed and most capable scholars to a school." In other words, "Law faculty benefit from the current structure of the course delivery system and may be loathe to take on work that will compromise time for other pursuits or impose burdens without increasing compensation."

He then argues there are two reasons the traditional law faculty is problematic. "First, as just mentioned, traditional doctrinal professors are not typically hired for their practice experience, of which they tend to have little or none. . . . Second, traditional law faculty members are expensive from the perspective of the law school, as their salaries account for a large share of a law school’s budget and tend to be impervious to dramatic reductions." In addition, "the profile of current law faculty—having been educated under the Langdellian system and having had little to no practice experience—renders them less sympathetic to the urge toward practice-relevance and less competent to devise and deliver a program with such an orientation."He concludes: "Ultimately, schools interested in moving their curriculum in a more practice-oriented direction will have to give serious thought to revising their hiring patterns to identify experienced practitioners who have the potential to be great classroom teachers."

In sum, the problem with legal education is that a particular approach has become entrenched. If the ABA adopts the proposal to require 15 credits hours of experiential classes, then a major part of the problem with legal education will be solved. In doing so, the ABA can end the Langdellian bargain, which has had such a harmful effect on legal education.

(Scott Fruehwald)

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