Thursday, March 07, 2013

Rethinking the Rethinking of American Legal Education

Mark Graber

An emerging alliance seems to be developing in American legal education between clinical faculty, faculty with a more practice-orientation, and legal practitioners.  The central theme of that alliance is that too much of legal education is controlled by more scholarly oriented faculty, an increasingly number of whom with PhDs, who are not teaching students basic practice skills.  The holy texts of this movement are the Carnegie Report, EDUCATING LAWYERS: PREPARATION FOR THE PROFESSION OF LAW and Brian Tamanaha’s, FAILING LAW SCHOOLS, although Brian would not fully endorse, to say the least, what may be becoming the dominant interpretation of his writings on legal education.  The mantra of the movement is that legal education ought to be about “problem solving.”
            The result, I fear, is likely to be a substantial narrowing of legal education and a sacrifice of some distinctive virtues of the legal profession.  Lawyers, like everyone else (i.e., the mechanic who fixes my car), engage in problem solving, but they also engage in story-telling, tool-fashioning and consciousness-shifting.  Story-telling involves organizing history and present facts in ways that seem to make certain outcomes (a constitutional right to same-sex marriage or a reduced sentence for an alleged burglar) more persuasive than others.  Tool-fashioning involves the development of conceptual apparatus (game theory, historical institutionalism) that practitioners and citizens can use to better understand the different and changing problems they are expected to solve.  Consciousness-shifting involves a reconceptualization of what constitutes a problem and a solution.  Consider the shift over the last hundred years between constitutional theories that regarded affluent property holders as the paradigmatic minority that needed constitutional protection to theories that regarded the poor, African-American as the paradigmatic minority that needed constitutional protection (as well as the effort to reconceive white students denied admission to law schools as victims).  Lawyers as leaders need to have all of these capacities and many are best taught by legal scholars who either have extensive training in the social sciences or humanities, or scholars who take seriously developments in the social sciences and humanities.
            The stakes may be the place of legal education in a university.  Universities are historically committed to story-telling, problem-solving, tool-fashioning, and consciousness-shifting.  None of these activities has the particular place of pride (certainly not problem-solving).  The cultural decision to placed legal education (unlike driver’s education) in a university was rooted in an understanding that, given the role lawyers play in public life, legal education ought to consist of a mix of story-telling, problem-solving, tool fashioning and consciousness-shifting.  A legal education that focused primarily on problem-solving might save law firms a bit of money, but will also lead to a more impoverished bar in the long run and, perhaps more important, might be better located in an institution other than a university.

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