2.6 Reconceptualisation of legal education: Introduction and overview
2.6.1 American experience: disjuncture and distress
In a significant proportion of the legal education literature spanning the past twenty years, a clear dissatisfaction with the traditional law curriculum is expressed:
For several years, I have seen increasing numbers of students who are dissatisfied with legal education- both its services and its content. The source of this dissatisfaction is less clear, other than an amorphous sense that something is not quite right (Matasar, 2001, p. 16).
In 1979, the American Bar Association had appointed a commission to report on the state of legal education and suggestions for reform. The Cramton Report suggested that law schools should “work toward shaping attitudes, values, and work habits critical to a lawyer’s ability to translate knowledge and relevant skills into adequate professional experience”. The report suggested also that law schools provide integrated learning experiences to focus on specific fields of legal practice (Cramton, 1979).
Despite changes in legal practice and demographic changes in legal education, the law school remained “an island of stability” (Cramton, 1981). The increasing number of graduates produced had the effect, however, of significantly influencing the “hidden”
curriculum, because students had become preoccupied with the task of securing employment. This affects their choice of subjects, as students strain to read the signals from the legal profession as to what knowledge is valued when hiring graduates. Ironically, the criteria used only serve to reinforce the dominant doctrinal-heavy curriculum, about which practising lawyers complain in that it does not provide graduates with sufficient legal skills training. These legal skills are taught in less popular and less valued “career-focused”
subjects like Clinical Law.
This “trade-school” orientation of staff and students continues to isolate law schools from university scholarship and intellectual pursuits, and can be traced back to a lack of
“coherent theory concerning the purposes of legal education or the nature of law”
(Cramton, 1981). The law curriculum has “no perceptible structure, sequence or organisation” (Cramton, 1982); other writers mention “a *curriculum+ experience loosely structured to the point of disintegration, consisting of a melange or hodge-podge
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of…courses” (Klare, 1982). The “Lone Ranger” theory of legal education applies to lecturers who agree that “you do your thing in your course as long as I am permitted to do my thing in mine”, an unwritten policy which leads to ignorance and a total lack of coherence between faculty members regarding the contents of the curriculum (Cramton, 1981).
While acknowledging growing calls for a major reform of the American curriculum, some positive attempts to adapt the legal curriculum by altering the contents of courses to accommodate new concepts and trends within existing subjects have been identified. A
“marginal accommodation”, a phenomenon whereby innovative reforms are added to the margin or periphery of the curriculum at very little expense, can be observed. Many first- year courses have been adapted to incorporate new methodologies such as those which facilitate skills teaching (Weistart, 1987). Considerations that affect curriculum reform were identified as: faculty autonomy and the desire to retain this against moves toward tight curricular control; the malleability and capacity of the traditional curriculum for creativity, allowing it to adapt and absorb new materials and methods; and the resource implications of implementing methodologies such as small group teaching, and Clinical Law methods.
The growing disjunction between legal education and the legal profession was voiced in a polemic from the American judiciary that criticised law schools for "emphasizing abstract theory at the expense of practical scholarship and pedagogy" (H. T. Edwards, 1992).
Stanford academic, Gordon (1993), rejected the suggested solution of more intensely doctrinal teaching and scholarship because practitioners do not appreciate the value of theoretical, interdisciplinary and critical legal scholarship. Harsh words about the current state of legal practice emerged in this debate: that practicing lawyers increasingly “distort facts and law, engage in strategic manipulation of procedure, neglect public obligations, and are obsessed with making money” (Gordon, 1993).
The response of the American Bar Association was to commission the MacCrate Report, Legal Education and Professional Development, which advised on “narrowing the gap”
between legal education and the legal profession (MacCrate, 1992). In this document, a Statement of Skills and Values, (ten skills and four values) that could be used for “curricular guidance” by law schools was published. Recommendations were also made as to how law schools could enhance professional development during a students’ academic career, by
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adopting a holistic approach to lawyering that will “in the future help to avoid the perpetuation of the notion that competence is merely a matter of attaining proficiency in specified skills” (Matasar, 2002).
The gap between the purpose of legal education and the present practice in law schools has been identified as a source of dissatisfaction for the legal profession, law students, academics and administrators (B. R. Henderson, 2003). The persistent use of the distinctive
“case method”, which dominates legal teaching practice, can be traced back to the need in the 1870s to enhance Law’s status and credibility as a science within the academy and as a profession. Its low cost in enabling large student groups to be taught by a single lecturer appeals to administrators. Henderson (2003) suggests that insisting on more philosophical, contextual and historical content, as well as enhancing the teaching of students’ lawyering capacities and their comprehension of professional norms would improve the relevance of legal education in America to the real world that lawyers encounter.
A minimalist approach to skills teaching – through legal writing courses that are taught discretely from doctrinal courses, and Clinical Law courses, which are given a “second-class”
status – fails to equip graduates adequately for any sort of professional legal work, while ethics teaching focuses on non-contextualised learning of rules to pass qualifying professional examinations. The fact that only one American legal journal (out of 200 legal scholarship journals) is devoted to legal education epitomises the ‘anti-intellectual” and unreflective approach adopted by legal educators about the area of their primary professional concern (Feinman & Feldman, 1985). The separation of substantive law content from skills and ethics and the lack of intellectual focus on integrating these three aspects has been a continuing theme throughout the legal education scholarship.
The debate about the integration of theory and skills had begun in 1944, when Llewellyn proposed that legal education should combine “ideals and technique” to equip lawyers adequately for professional practice. According to Cooper, the integration of doctrine, (defined as “the concepts, rules, standards principles and institutions derived from law”), theory (“those perspectives derived from outside the doctrine of law, from other disciplines”), and practice (“the skills used to apply theory and doctrine to real problems”) should be “suffused with the values of craftsmanship”, so that “craft ideals” can direct
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students’ idealism into practice (Cooper, 2001). This isolation of the component aspects of professional education has had a deleterious effect on coherent curriculum development and has most recently come into prominent focus again in two recent American texts.
The most recent review of legal education has been the Carnegie Report (Sullivan et al., 2007), which compares the curricula and practices of legal education in numerous American law schools. The report identifies serious deficiencies, noting among these: insufficient attention paid in law curricula to preparing graduates for practice in a world of real-life problems, and a lack of concern for lawyers’ professional responsibility, which necessitate an extensive re-visioning of legal education. The report also comments on the incremental way in which legal education is improved, instead of adopting a comprehensive approach to revising curricula. The approach to a re-visioning of legal education is an integrative strategy (my italics) because effective educational change is best achieved by means of a holistic, rather than an atomistic approach.
The integration of the three aspects of legal apprenticeship – the cognitive (knowledge), the practical (skills) and the ethical-social (values, ontology) – must overlap, “crossing boundaries to infuse each other”, and link “so seamlessly” as to each contribute to the strength of the other. One practical recommendation is to “join lawyering professionalism and legal analysis from the start” and “weave together disparate kinds of knowledge and skill”. The construct of the ethical-social apprenticeship is explained as
[a] theoretical and practical emphasis on inculcation of the identity, values, and dispositions consonant with the fundamental purposes of the legal profession (Sullivan et al., 2007, p. 94).
Another influential contribution has been the publication of Best Practices for Legal Education, (Stuckey & Others, 2007), a project that was initiated by the Clinical Legal Education Association to support and encourage best educational practices. Stuckey’s personal view that legal education is emotionally and psychologically harmful to many law students echoes the view of many current commentators,45 who emphasise the negative
45 http://bestpracticeslegaled.files.wordpress.com/2008/07/mercer_powerpoint.ppt#261,7,Slide 7.
Accessed 21 August, 2009.
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consequences of a highly competitive law school environment, the devaluation of emotional matters and the sense of loss of purpose experienced by law students (Hurst Floyd, 2002;
Kennedy, 2004; Sturm & Guinier, 2007). Burch and Jackson (2009) describe how the insights from the Carnegie Report and Stuckey’s Best Practices converge and can be implemented in carefully planned teaching activities.
The blame for the lack of innovation and experimentation in American law schools is laid at the feet of the conservative gatekeeper and accrediting body, the American Bar Association (ABA), which since 1921 has prescribed requirements for legal education and admitted no variations (Gulati, Sander, & Sockloskie, 2001). Gulati et al. in their empirical study suggest three possible views of the American legal academy and legal education: (i) the “Official Story” that the status quo is fine; (ii) the “Bleak Story” which criticises the disjuncture between academia and the real-life world of professional practice; and (iii) the “Signal Story” in which law school has “a symbolic and sorting function”, based on the ranking of the school where one graduates, the grades earned there and whether the student is selected to be on the published faculty Law Review – all as a means to securing lucrative employment in a prestigious law firm (Gulati et al., 2001). Kennedy’s polemic (1983, republished in 2004) against the system of legal education critiqued the various ways in which hierarchical patterns are reproduced in law schools, through the pedagogy, the selection and ordering of materials and the modes of conduct. This hierarchical ordering prefigures and replicates the power structures in professional practice.
In a newspaper ranking exercise on American law schools, Butler (2006) makes the point that the law school sequence and model of curriculum has had the same format for nearly a century, and recent research has established that students are feeling increasingly disengaged. A variety of responses, represented by movements within legal education, have been directed at “humanizing” the experience of law school, in the face of an increasing sense of alienation and dissatisfaction as described in the “Bleak Story” above (Hess, 2002;
Krieger, 2002). As far back as 1986, legal education in America was found to be the most psychologically distressing field of graduate study (Andrew, Benjamin, Kaszniack, Sales, &
Shanfield, 1986; Goodrich, 2000). Rhode (2000) described the disappointment of aspiring
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lawyers when they discovered that they do not “make a contribution to social justice” as the greatest source of discontent.
The Clinical Legal Education movement originally provoked by the American Realists in the 1930s, attempted to provide legal services in community settings and at the same time teach students practical skills in a supervised experiential learning environment (A Boon, 1998). A “second wave” of campus law clinics began in the 1960s and has flourished in the United States, aiming to encourage the use of
Clinical methodology includes supervised representation of clients, supervised performance of other legal work, and the use of simulated exercises in a variety of settings, both within law schools and outside of them, and is designed to teach skills and values important to the ethical and competent practice of law.(Clinical Legal Education Association)
In the field of ethics education within the law curriculum, fervent pleas to integrate the explicit teaching of ethics, beyond the teaching of professional codes of conduct in “stand- alone” modules, were made by Deborah Rhode as early as 1998 (D. L. Rhode, 1998; D. L.
Rhode & Luban, 2004). Her views on teaching ethics in a pervasive ”across-the-curriculum”
approach heralded the way for “integrated ethics by continuing method”, within every substantive law module, as preparation for the moral dilemmas faced in professional practice. Experimental approaches to integrating ethics within the curriculum were adopted at other law schools such as the University of California Los Angeles, and St Louis Law School (Menkel-Meadow & Sander, 1995; Shaffer, 2002). Yet, in 2007, the Carnegie Report (Sullivan et al., 2007) recorded mixed success with the pervasive infusion of ethics in American law schools and recommended fuller implementation of pervasive ethics teaching.
Magee (2007) proposed a critical, spiritual or “humanity consciousness” approach, as a way of undermining the dominant identity norm within legal education, which is reproductive of a white male hierarchy. It positioned the human dignity of all people at its centre, and is a humanity-affirming approach to law that is committed to upliftment. In similar vein, the
“humanising legal education” movement has been recognised by the American Association of Law Schools (AAL) as a separate section within the community of legal educators, committed to achieving “balance”, by providing a supportive learning environment for all
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students. Its focus is on the “peace-making, problem-solving and justice work” of the law, and on emphasising values education through self-reflective practice (Glesner Fines, 2008).
A call for a “Legal Education Renaissance” in America has been made, based on the perception that
The current legal education system does not focus on effective teaching for the adult learner, does not require curriculum aimed at teaching the basic skills necessary to practice the law, and does not communicate the importance of balancing life with the stresses of a legal career. While law schools do manage to produce outstanding lawyers, the system is less than effective for the majority of its graduates. Law graduates report having learned many important lawyering skills in places other than law school (Sonsteng et al., 2008, p. 22).
In the next section, a review of legal education in England will highlight some of the key areas that resonate with the American, Australian and South African experience.