Dru Stevenson on Legal Education: A Reply

Professor Dru Stevenson has written a post entitled "Should Law Schools Focus on Lawyering Skills?" on Circuit Splits. He writes,

"I do, however, disagree with the nationwide push toward making law schools into trade schools, the attempt to make the institutions less intellectual. And I recently blogged here about the direction I would like to see schools go - echoing the vision recently outlined by the Dean of the law school at Boalt Hall (California-Berkeley). Comparing law to another profession, would you prefer that your surgeon had spent more time taking courses on ‘counseling patients,’ and ‘medical clinic management,’ or more time studying cellular biology and organic chemistry? For my surgery, I would prefer the one who had a more intellectually rigorous program, not one that focused on role-playing exercises and rudimentary paperwork-completing skills. I wonder if any other profession criticizes its theoretical wing like ours does.

The most troubling aspect of turning the focus of law schools completely toward ‘skills’ is that this is the seed of our institutions' destruction. When a consensus finally emerges that the whole point of law school is training kids in the mechanical tasks of lawyering - how to write a brief, how to give an opening argument, how to look up the law on something - people will then realize that law schools are not really necessary at all for teaching ‘skills’ - these are better learned by ‘doing’ and by repetition. A law school with a skills curriculum is a law school that is not worth the time or tuition, as the same skills would be better learned on the job in apprenticeships. After we all switch to teaching mechanical skills, there will be a movement to abolish law schools completely. The academic study of law will get absorbed back into the political science departments from whence it came, and lawyer training will be done the same way we train & license paralegals."

He later adds: "Ultimately, this is a symptom of a larger problem happening at colleges and universities everywhere. As Professor Benjamin Ginsberg has described in his wonderful book The Fall of the Faculty: The Rise of the All-Administrative University and Why It Matters, undergraduate institutions nationwide are replacing academically rigorous courses for ‘life skills’ courses on subjects like event planning, how to keep a journal, social networking, and so on."

Professor Stevenson has painted an inaccurate picture of the legal education reform movement; he has produced a strawman. (Professor Stevenson can you cite to an article that advocates teaching rudimentary paperwork skills as a significant component of law school? Have you read articles on legal education by Michael Hunter Schwartz, Benjamin Spencer, Judith Wegner, Laurel Oates, James Stratman, Leah Christensen, Robin Boyle, Stef Krieger, Richard Neumann, etc.? Have you read any cognitive psychology articles on learning theory?) Those in this movement do not want to turn law schools into trade schools. We do not want to teach "mechanical" tasks or rudimentary paperwork skills. Rather, we recognize that theory and practice are inseparable. We want to combine doctrine with doing, theory with practice. We want law students to be able to apply doctrine to facts and doctrine to drafting documents.

Learning theory has demonstrated that students learn better when they apply doctrine. As Kristen Holmquist has stated, "one acquires content knowledge, ‘uses’ that content in relevant ways, and thereby gains a deeper and more nuanced understanding of the original learned content." (SSRN at 16-17). She has elaborated: "Higher-order thinking skills like evaluating and creating come only after repeated opportunities to apply, or act on, memorized and then understood information." (SSRN at 15) Similarly, as Best Practices points out, "It takes time to develop expertise in legal problem-solving. Problem-solving skills can be developed only by actually working through the process of resolving problems. Developing problem-solving expertise requires repetitions of ‘training’ as against the hard world of consequences, of repeated success and failure, and some inductive efforts at understanding what works and what does not, what seems important and what does not." (Best Practices in Legal Education, at 142.) In other words, rather than developing mechanical skills, the legal education reform movement wants to develop higher order skills than the current methods of legal education, like the case method, do.

Professor Stevenson asks, "Comparing law to another profession, would you prefer that your surgeon had spent more time taking courses on ‘counseling patients,’ and ‘medical clinic management,’ or more time studying cellular biology and organic chemistry? For my surgery, I would prefer the one who had a more intellectually rigorous program, not one that focused on role-playing exercises and rudimentary paperwork-completing skills." I ask Professor Stevenson, would you like to have a surgeon who has only learned the theoretical part of medicine? One who has never met a patient before? One who has never performed surgery before? I want a surgeon or a lawyer who has been trained in both theory and practice, who has been through a rigorous intellectual program that has trained the lawyer or surgeon to solve complex problems in their field. For example, Professor Holmquist has declared, "Yet this cognitive/practical divide is as untenable in lawyering as it is in learning. Is writing a motion for summary judgment in a multi-million-dollar copyright matter a cognitive skill, or a practical one? And imagine deposing a scientist employee of a corporate defendant in an environmental matter. Imagine further that the scientist is both reluctant and knowledgeable. Is it a cognitive task or a practical one to elicit useful information from him?" (SSRN at 16)

Professor Stevenson also criticizes the general trend at universities to teach 'life skills’ courses on subjects like event planning, how to keep a journal, social networking, and so on." I couldn’t agree more. I have previously advocated that universities teach critical thinking and problem solving. (post) However, I don’t think universities were doing this much before the "life skills" movement.

Finally, legal education reformers are not advocating using a single model for all law teachers or all law schools. There is a need for law schools that take different approaches. What we do not need is legal education that is stuck in the nineteenth century and that does no good for law students, clients, and society.

Paul Horwitz also has a post on Stevenson’s post here.

(Scott Fruehwald)

P.S. I will have more on the Holmquist article on Tuesday.