Revisiting The Ninety-Five Theses: Systemic Reforms of American Legal Education and Licensure by Brent E. Newton: Part I

In February 2012, I wrote about an important new article on legal education by Brent E. Newton, The Ninety-Five Theses: Systemic Reforms of American Legal Education and Licensure.  (here)  Professor Newton argued that "Every major decision made by a law school should reflect a genuine fiduciary commitment to their students – with the ultimate goal of producing graduates who will be competent, ethical entry-level attorneys, that is, graduates who are 'practice ready.'”  (He called this a fiduciary commitment to students.)  He then "nailed" "95 theses" for legal education reform.  He divided these these into six groups: "(1) defects in the law school admissions process; (2) structural problems resulting from the excessive number of law schools, the ABA accreditation process, the current manner of law school faculty governance, and the current system of ranking law schools; (3) defects in law schools’ curricula, pedagogical methods, and assessments of students; (4) deficiencies in the professoriate at law schools; (5) problems related to legal scholarship and law reviews; and (6) flaws in the bar exam and licensure process and also in the process of graduates’ transition from law school to the job market."  He concluded, "the only way to effect meaningful change likely to persist is to implement systemic reform – root to branch."  At the time I wrote, "While I don't agree with everyone of his points, I think that Professor Newton's article is a major contribution to the legal education reform debate."

Five years later, I am revisiting Professor Newton's 95 theses to see whether they have been adopted by law schools.  (Of course, I can't discuss all 95 in detail.)  I begin today with his theses on "defects in law schools’ curricula, pedagogical methods, and assessments of students."

19. The law school curriculum not only needs to develop cognitive competencies but also needs to teach the practical competencies required to be an effective, ethical practitioner.  Law schools have adopted this thesis to a certain extent.  The ABA has added a six-credit skills requirement.  Many law schools have gone well-beyond this six-credit requirement.  Still, many law schools lag in offering their students enough experiential education.

20. Law school courses should emphasize problem solving, risk management, and strategic thinking.  I think this is one of the most important of Professor Newton's theses.  While law schools have always stressed cognitive competencies, I believe they can do much more.  (see my book, Think Like A Lawyer: Legal Reasoning for Law Students and Business Professionals (2013)).  A few law teachers have satisfied this thesis, but a lot more can be done.

21. The typical law school curriculum is focused disproportionately on litigation topics.  This was very true in 2012, and it remains true at most law schools today.  Even in business-related classes, such as Corporations, the emphasis is often on litigation.  However, many law schools now offer courses on drafting contracts and other business documents.  Some schools are even offering courses in business practices.

22. The typical first-year law school curriculum is woefully outdated.  A few law schools have updated their first-year curriculums, but most law school curriculums still look like the one I took in the last millennium.  I think that law schools should add an Introduction to Legal Reasoning class to the first year.  This class would introduce students to the five types of legal reasoning: 1. Rule-based reasoning, 2. Reasoning by analogy, 3. Distinguishing cases and arguments, 4. Synthesizing cases and arguments, and 5. Policy-based reasoning.  The course would then apply these types of reasoning to a variety of problems and teach other critical thinking skills.  I also believe that teachers should incorporate new techniques into their first-year doctrinal courses, such as formative assessment, problem-solving exercises, think aloud exercises, scaffolding, etc.

23.  The current upper-level elective curriculum at most law schools is uncoordinated and fails to provide students with appropriate opportunities for specialization.  While some law schools have adopted curriculum mapping, this thesis is still generally true today.

26. In its current model, American legal education cannot offer a compelling justification for the third year of law school.  I argued in a 2013 article in U.S. News that two years is not long enough for a legal education.  However, I agreed that the third year could be vastly improved by adding experiential courses and using new teaching techniques.  Since 2013, many law schools have added value to their third years.  However, others have stopped at merely meeting the minimum under the ABA standards.

I think this is enough for today, I will continue with Professor Newton's theses tomorrow.

(Scott Fruehwald)