Educating Lawyers: Preparation for the Profession of Law
By Sale, Hillary A
Educating Lawyers: Preparation for the Profession of Law William M. Sullivan, Anne Colby, Judith Welch Wegner, Lloyd Bond, and Lee S. Shulman San Francisco: Jossey-Bass / Carnegie Foundation for the Advancement of Teaching, 2007, 240 pages, $40.00 (hardcover) Educating Lawyers, the Carnegie Foundation for the Advancement of Teaching’s new book, explores legal education and urges significant change in both curriculum and “tone.” The book is one of a series on professional education. The first was Educating Clergy, and the others will focus on educating engineers, nurses, and physicians. Educating Lawyers attempts to provide a view of legal education through the lenses of the other educational processes. In doing so, it provides helpful insights into how legal educators can improve what they do, but fails fully to appreciate what law schools and legal educators are in fact doing.
The premise of this series is, in part, that professional education’s value depends on linking it successfully to practitioners and the public that they serve. According to Educating Lawyers, law schools are not succeeding as well as they might. The study posits that lawyers operate under a social contract, in the public sphere and with the public trust. This social contract, like legal contracts more generally, contains reciprocal obligations. To comply with their contractual responsibilities, law schools must teach students in a way that allows graduates to succeed in meeting those obligations. Among the things the study blames are the Socratic, case-dialogue form of instruction, which it argues is at least over-emphasized if not over-used, and the lack of courses that provide “real-world” lawyering skills and interactions. The study offers suggestions for law schools to improve the quality of education so that the would-be lawyers can be responsible contract participants. The book’s prescription is deceptively simple-develop skill-based opportunities and courses, find ways to emphasize and integrate skills and ethical instruction throughout the curriculum, and pay better attention to the research on learning and assessment.
To determine whether the legal academy is succeeding in its professional mission, the study first explores the “signature pedagogy” of the legal academy, the Socratic, case-dialogue method, and the problems that over-reliance on it can create-gaps in moral and ethical training. Although critical of the Socratic, case- dialogue method, the study recognizes it is key to helping students learn to speak a common language. To some extent, law schools use this teaching method across the board, particularly in the first year. The result is a bit like foreign language immersion, and it is extremely effective in bringing students quickly into another world, teaching them to speak like lawyers and eventually, helping them to reason like lawyers.
Missing, however, from the traditional law-school curriculum, the study concludes, are two key complements-experience with clients and ethical substance. The former is not necessarily connected to the teaching method, but the study concludes that the latter may be. That is, the study posits that students who wish to be facile reasoners in the classroom must separate their sense of justice and fairness from legal procedure and doctrine. Here, however, the study goes too far. The purpose of legal procedure is to provide a baseline for justice and fairness. Indeed, laws are about moral baselines, societal consensus points, so to speak. Good Socratic law professors help students to understand this baseline and its gaps. Arguably, the answer to the study’s concerns is increased transparency about what the method seeks to accomplish and how to invoke moral concerns effectively. Transparency would help students to understand and take responsibility for the choices they are making when they engage in the dialogue.
The second key concern, connecting legal study to practice- oriented situations, however, is trickier to address. Not surprisingly, the study points out new lawyers most appreciate the aspects of their education that made their transition from school to practice easier. Legal education falls short when it fails to connect analytical reasoning skills to law practice. In part, this problem arises out of law schools’ own attempts at academic legitimacy, such as a desire not to be a trade school. And, in part, it grows out of the over-reliance on the Socratic method.
The study points to two law schools, New York University and City University of New York, as examples of schools with programs that integrate lawyering and legal learning in ways that it urges others to emulate. Key aspects of those programs include skill-based work and clinical training. Notably, however, these two types of training are present in most American law schools either through mandatory first-year courses often denominated with a title that includes the term “lawyering,” or through optional upper-level courses designed to introduce alternatives to traditional dispute resolution mechanisms and clinical courses. These programs and courses can introduce students to the range of legal practice and professional work that traditional classrooms do not. They can also present professional responsibility issues embedded in the work and, thereby, help students to integrate their moral and social senses. These types of programs, then, can help to round out Socratic, classroom-based learning.
In addition to the programs highlighted above, the study proposes that law schools should integrate practice-like experiences into the entire curriculum and make better use of the second and third years. In short, the proposal is to increase options for learning by doing, thus providing a better integrated education, much like the curriculum in medical programs. No doubt clinical experiences are important and valuable in law schools. They are also extremely expensive relative to standard classroom experiences. Medical schools are considerably smaller and fewer in number than their law- school counterparts. The proposed changes would be prohibitively expensive for most public law schools and many private ones as well. Ambitious law schools could, however, create more opportunities for integrated learning in the classroom, by increasing the use of discussion and experiential techniques in the more “doctrinal” courses.
The study also connects the sense of demoralization in the legal practice to legal education’s emphasis on the lawyer-as-vigorous- advocate and its lack of emphasis on the lawyer-as-counselor. The failure of legal educators to highlight and invoke the other roles adds to the pressure students might feel to select more prestigious or popular practice options-careers that may be less fulfilling. This explanation seems partially true. Many law students know only what they see in the popular media or learn in the classroom. Thus broader exposure and emphasis ought to be part of the education.
That being said, legal education differs in an important way from the other fields examined in the studies. The legal study neglects this important point. Law students are not like medical students (or clergy, engineering, or nursing students). Law practice is not necessarily the lifetime dream of most law students, nor have they taken a series of courses to prepare them for law school. Further, many law students enter law school for reasons unrelated to a desire to practice law. Some did not find a job after their undergraduate experience, while others want prestige, are drawn to the competitive process and atmosphere, or are just in a holding pattern while sorting out what they actually want to do. Legal education cannot hope to turn every law student into a happy and successful lawyer when the entrants’ motivations are so diverse. Indeed, it should not be surprising that many students do not actually like practicing law. Some ofthat dissatisfaction may arise out of the “gaps” in their education, but much of it likely comes from not wanting to be a lawyer in the first place. Thus, the study’s repeated reference to and focus on how new lawyers “feel” in the early years after graduation may well overstate the issues with the educational process and, perhaps, distort the need for the proposed remedies.
Finally, the study addresses assessment issues, arguing that the traditional, end-ofsemester-only exam serves an appropriate and important role in providing summative (sorting and ranking) assessments of students but does not allow for formative assessments, those that support learning in an ongoing fashion. Formative assessments apparently enhance learning, but law schools do not make enough use of them. The study proposes law schools shift to making formative assessment their primary mode of assessment, rather than a weak secondary one. This suggestion is one those of us who care about the “education” in legal education ought to take to heart. The change, however, would not be easily accomplished. Grading a traditional hypothetical exam, even without providing extensive feedback, is extremely onerous given the size of many law classes. Doing so multiple times and providing formative assessments would be even more expensive and time consuming for law schools. Further, the problem is not easily remedied with so-called objective, or multiple choice tests, because, unlike traditional hypothetical essay exams, they bear little relationship to the practice of law. Perhaps legal educators should consider using graduate assistants as many other professional programs do, but, to date, that is not the mode of legal education. In sum, the study rightly points to the dangers of overusing one form of teaching and the necessity of providing more and better ethical support and guidance to students. It fails, however, to give sufficient attention to the ways in which the study of law is distinct from the other professions in the series. Given that many students attend law school without any prior analytical training and in many cases, little knowledge about or even desire actually to be lawyers law schools are faced with undeniable challenges. The first, of course, is to place the students onto an even playing field. Socratic classrooms are very effective in assisting with this transition. Stepping up efforts to enhance the practice-connected stage of learning is a sensible, if expensive, proposal that will require legal educators to grapple with their own identities. That being said, legal classrooms, however they are configured, cannot resolve the fact that many law students do not arrive at studying the law through some sort of calling to the profession as do most of those choosing medical or religious professions. The study’s failure to account for this “input” issue diminishes the value of its proposed solutions. To some extent, dissatisfaction of recent graduates is not the fault of the legal education or even the profession, but instead can be attributed to uncertainty and youth. Making the changes proposed may help more of the students in law school learn deeper and better, but the real solution for law schools may well be to decrease, in some cases dramatically, the number of potential lawyers they admit, screening not just for aptitude, but for desire. The financial consequences of such a change would likely put many schools out of business. Over time, it would also decrease the lawyers available to fulfill the social contract with which the study began its review.
The reviewer wishes to thank Sam Langholz for research and editing assistance. All errors, of course, are the author’s.
Reviewed by Hillary A. Sale, University of Iowa-College of Law
Copyright American College Personnel Association Jan/Feb 2008
(c) 2008 Journal of College Student Development. Provided by ProQuest Information and Learning. All rights Reserved.