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.