Friday, November 25, 2011

The Carnegie Report and Legal Writing

Lisa McElroy, Christine Coughlin, and Deborah Gordon have just posted an excellent and comprehensive article on SSRN entitled The Carnegie Report and Legal Writing: Does the Report Go Far Enough?


The 2007 release of a comprehensive and innovative report on legal education, known now simply as the “Carnegie Report,” has generated widespread enthusiasm throughout the legal academy. Recognizing that law school “forms minds and shapes identities” of nearly all legal professionals, this landmark look at legal education applauds and defends legal pedagogy that integrates “theoretical and practical legal knowledge and professional identity.” Many legal educators have acknowledged the Carnegie Report’s importance, and some have begun to propose and develop educational programs that implement the Report’s recommendations.

Not all responses to the Carnegie Report have been positive, however. While heralding the Report’s broad goal of fostering a law school experience that integrates theory, practice, and professionalism, some legal educators have cautioned that the Report does not go far enough because it continues to embrace case dialogue as law school’s signature pedagogy, recommends additional forms of pedagogy that replicate the same fundamental problems, or sacrifices traditional subject matter necessary for the development of professional skills.

With respect to legal writing, the Carnegie Report praises the work of legal writing faculties, largely in recognizing that these professors grasp that the best law school teaching is interactive and experiential in nature. Much of the Report’s discussion of legal writing, however, reinforces the hierarchies and damaging stereotypes that undermine the Report’s fundamental lessons about educating thoughtful, engaged, and ethical lawyers. The Report also fails to appreciate the significant lessons that legal writing professors can teach their “‘non-skills’ colleagues. With expertise in developing techniques for experiential learning, outcomes assessment, and formative assessment, skills faculty have much to share with the rest of the academy.

In an effort to further the already significant strides in legal pedagogy that the Carnegie Report has engendered, this Article highlights some of the Report’s shortcomings in its description of legal writing and the place that legal writing has in traditional legal teaching. It describes the Carnegie Report’s basic recommendations for legal educators and some of the many responses to those recommendations, then examines the Carnegie Report’s unquestioning acceptance of hierarchies within the legal academy and describes how these attitudes damage law student learning. It explains that skills faculty — who know a great deal about formative assessment, the focus of the proposed ABA standards — can both provide guidance on making legal learning more interactive and experiential and guide non-skills faculty in implementing the Report’s fundamental charge to make assessment more meaningful.

In sum, although this Article commends the Carnegie Report’s recognition that legal education can benefit from an integrated approach to learning, the Article also addresses the Carnegie Report’s shortcomings in its approach to and commentary on skills faculty. Specifically, the Article criticizes the Report’s failure to recognize that legal writing professionals routinely use best practices in education, including formative assessments, and notes its missed opportunity to promote this particular expertise throughout the academy.


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