Monday, February 10, 2014

Dean Harry Arthurs on Legal Education and a Reply

Former Dean Harry Arthurs has recently written a paper (here) and given a talk (here) that criticizes the recent movement in Canadian legal education to produce "practice-ready" attorneys. Professors Brian Leitner (here) and Stephen Diamond (here) have praised this critique and asserted that in also applies to the practice-ready movement in American law.

Dean Arthurs asserts that there are three very different views of what law schools should be: "The first holds that their primary, if not their sole, function should be to produce ‘practice-ready lawyers’ for today’s profession. The second is that they should produce ‘tomorrow’s lawyers’, lawyers with the capacity to adapt to the rapidly and radically changing circumstances of legal practice. And the third is that law schools should play a leading role in the creation and transformation of legal knowledge, legal practice, and the legal system — a role that requires them to provide their students with a large and liberal understanding of law that will prepare them for a variety of legal and non-legal careers." He asserts that the last version is the future of law schools.

He attacks the notion of practice-ready graduates: "The problem is that no one knows what practice-ready lawyers look like. We lack information about what legal practitioners do, what knowledge or competencies they actually need or use, what breadth and depth of knowledge qualify new graduates as ‘ready’ to practice, or how long they will remain ‘ready’ before what they learned at law school becomes obsolete. These are empirical questions. However, they were neither asked nor answered before the law societies adopted their new regulations."

He notes, "That said, we are virtually certain of one fact about the profession: it is fractured along a number of deep fault lines." He continues, "If I’m right, if what lawyers need to know in order to be practice-ready varies considerably from one kind of practice to another, we arrive at an important conclusion: one size of legal education will not fit all law graduates. But quite inexplicably, Canada’s law societies believe that it will. They have recently decreed that all law schools must ensure that all students acquire all ‘competencies’ and knowledge of all the substantive subjects or fields specified in their new regulations." He concludes, "If this position prevails, if the recent law society regulations remain in force, whatever else law schools do, they will never be able to produce practice-ready lawyers."

He also argues that "And law societies have ignored something else too: the relentless change that is destabilizing existing legal institutions, rules, processes and patterns of practice. . . . the profession’s governing bodies have ignored the challenge of educating lawyers for an uncertain future just as resolutely as they have ignored the need for hard evidence about how lawyers actually practice in a multi-dimensional present."

He asserts that "What do they [law schools] do best? Law schools are knowledge communities: they exist to collect, critique, produce and disseminate knowledge." He remarks, "It’s easy to see, then, that disagreements between the academy and the profession about the nature of knowledge are at the root of disagreements over who should control law schools — the profession’s governing bodies or the universities and their law faculties. The future of law schools, I argue — and the future of law as a profession, social institution and intellectual discipline — depends on who controls knowledge. Law schools cannot function well as knowledge communities if their view of knowledge is disparaged, marginalized or suppressed because it conflicts with that of the profession; if legal orthodoxy has a privileged place on the curriculum and a pre-emptive claim on resources; if critical scholarship and transformative pedagogy are seen as illicit attempts to subvert professionalism; if research, graduate studies and public advocacy come to be seen as derogating from the "true" or "core" mission of law schools or as mere decorative appendages to it."

Concerning experiential education he adds, "law schools are increasingly committed to experiential learning. They believe that immersing students in real or simulated legal situations has several advantages. Like the optional curriculum, experiential learning enhances motivation. It exposes students to certain intractable facts of legal life — the legal power of deep pockets, for example, or the stultifying effects of déformation professionelle — that are difficult to convey through conventional course materials. And it incites them to think critically and systemically as well as analytically. But I’ll add a note of caution: there’s a risk that experiential learning can degenerate into mere skills training. . . . experiential learning is not simply to show students how to put "law-think" to practical use; it is to enable them to confront the normative, logistical and relational issues that are imminent in all legal encounters. In this sense, the success of experiential learning depends ultimately on the strength of law schools as knowledge communities, on their ability to provide students with context and perspective that allow them to make sense of what they’ve observed or experienced."

He concludes, "The future of law schools, then, is to embrace their vocation as knowledge communities, and to embed their JD and other educational programs within their larger mandate of aggregating, critiquing and disseminating knowledge, in the context of rapid and profound changes in society and in law. . . . To summarize: law schools should be teaching students to think like lawyers, to contextualize and critically evaluate their legal experiences, to adapt to change and, especially, to learn how to learn." "Now I have to address a tough question: if that’s all that law schools do, is it enough? If their graduates don’t have legal skills and don’t know substantive law, aren’t they likely to be a risk to their clients, their colleagues and their liability insurers? I think not. There’s good reason to believe that new graduates with limited knowledge of substantive law and a limited repertoire of skills can still end up as highly successful practitioners. Let me remind you that many famous jurists had very rudimentary legal educations; that many specialists today never took courses in the fields in which they excel; and that most skilled advocates, draftspersons and negotiators learned their trade on the job, not at law school. In the United States, graduates of law school that prize scholarship, schools with wide-open curricula that emphasize thinking skills, theory and inter-disciplinarity — fare well even in today’s difficult legal labour market. . . . in most labour markets today, sophisticated and adaptable knowledge-workers tend to fare better than semi-skilled workers with a limited repertoire of skills and know-how closely aligned to the current modus operandi of particular employers or trades."

Professor Diamond adds in an article entitled "Before you let the ABA ruin your law school, listen to this talk by Dean Harry Arthurs," "As he makes clear the fundamental goal of the law school, which is firmly situated in an academic environment, is to pursue knowledge. It is not a substitute for ‘training’ lawyers whether under the guise of producing ‘practice ready’ graduates or steeping students in so-called ‘experiential learning. . . .’ Law schools, fundamentally ‘knowledge communities’ as explained by Dean Arthurs, are not cut out for this task and should not be forced cookie cutter-like into a mold shaped by external market forces." Professor Diamond concludes, "It becomes equally clear after listening to this elegant and thoughtful presentation how utterly incoherent the reform agenda is."

Regardless of whether Dean Arthurs’s paper and talk are an accurate critique of Canadian legal education, his comments have no relevance to legal education reform in the United States. First, no one in the legal education reform movement is advocating that law schools be solely for turning out practice-ready attorneys. The proposal currently before the ABA would require 15 credits of experiential courses or about one semester or 1/6 of law school. Is this to much to give to students considering that they are paying tuition to become lawyers? In addition, those in the legal education movement are not advocating eliminating law schools’ academic function. Rather, they are advocating a better balance between scholarship and teaching, theory courses and practical courses.

Second, we do have a notion of what practice-ready graduates need because there have been thorough studies by American legal scholars concerning what skills beginning lawyers need. (here, Susan Wawrose, What Do Legal Employers Want to See in New Graduates? Using Focus Groups to Find Out, 39 OHIO NORTHERN L.REV. 505, 515, 518 (2013); Marjorie M. Shultz & Sheldon Zedeck, Predicting Lawyer Effectiveness: Broadening the Basis for Law School Admission Decisions, 36 LAW & SOC. INQUIRY 620, 629 (2011); NATL ASSN FOR LAW PLACEMENT, HOW ASSOCIATE EVALUATIONS MEASURE UP: A NATIONAL STUDY OF ASSOCIATE PERFORMANCE ASSESSMENTS 84 (2006); John Sonsteng with David Camarotto, Minnesota Lawyers Evaluate Law Schools, Training and Job Satisfaction, 26 WM. MITCHELL L. REV. 327 (2000); Bryant G. Garth & Joanne Martin, Law Schools and the Construction of Competence, 43 J. LEGAL EDUC. 469, 472-73 (1993 )) There have also been several books and articles on effective teaching in law schools. (E.g., Michael Hunter Schwartz, What the Best Law Teachers Do (2013); Gerald F. Hess, Techniques for Teaching Law 2 (2011); Michael Hunter Schwartz, Teaching Law by Design (2009); here; here; here)

Unlike the proposals in Canada mentioned by Dean Arthurs, legal education reformers in the United States are not suggesting a one-size-fits-all approach to experiential education. Just like law schools currently have specialization tracks, there should be specialization tracks for experiential learning. Those interested in litigation should take litigation experiential courses. Those interested in business law should take transactional courses, like contracting drafting, transactional drafting, and business planning. Also, legal education reformers are advocating training law students to be "tomorrow’s lawyers," including an understanding of evolving technologies. In addition, they want to teach students to learn to learn. (here, here)

Also unlike like proposals in Canada cited by Dean Arthurs, nobody in the American legal education movement is advocating the elimination of a law schools’ academic purpose. Both scholarship and teaching are important. Certainly, one of law schools purposes is to advance knowledge. Notably, all other professional schools, including medicine and architecture, have considerably more experiential training than law schools, and no one is complaining that they are not fulfilling their academic/scholarly function. (here)

I am glad to see that Dean Arthurs has some praise for experiential education. While he does express a note of caution, I can assure him that the American legal education reform movement wants rigorous experiential education. Experiential classes should lead to deeper learning and increased knowledge. Obviously, how lawyers practice law is important knowledge. In addition, experiential classes will lead to greater retention of doctrinal knowledge because students retain more when they apply it. Moreover, legal education reformers stress the need for developing students’ professional identities. Finally, they intend to place experiential learning within the existing law school framework.  (here)

In sum, adding experiential education to the current repertoire of law school teaching approaches will produce "sophisticated and adaptable knowledge-workers" not "semi-skilled workers with a limited repertoire of skills and know-how closely aligned to the current modus operandi of particular employers or trades." In other words, Dean Arthurs’s criticisms of Canadian reform proposals have no relevance to legal education reform in the United States. The use of Dean Arthurs’s article on Canadian legal education reform is just another red herring raised by those opposed to legal education reform, and its use demonstrates the weaknesses of their arguments.

(Scott Fruehwald)

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