- Educating Lawyers: Preparation for the Profession of Law
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, [End Page 71] 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...