Reforming Legal Education: Law Schools at the Crossroads
reviewed by Stanley Katz - August 18, 2014
Title: Reforming Legal Education: Law Schools at the Crossroads
Author(s): David M. Moss & Debra Moss Curtis (Eds.)
Publisher: Information Age Publishing, Charlotte
ISBN: 1617358592, Pages: 250, Year: 2012
Search for book at Amazon.com
Reforming Legal Education is an interesting attempt to apply current higher education reform thinking to professional education in law. The primary model here is the account of professionalism in learning developed by Lee Shulman (when he was the president of the Carnegie Foundation for the Advancement of Teaching). The volume prepared by Shulman and his associates on law was published in 2007: Sullivan, Colby, Wegner, Bond, and Shulman, Educating Lawyers: Preparation for the Profession of Law. Like the rest of the series, it is premised on the theory that an idealized version of medical education can provide a model for all of higher education. Moss and Curtis do not refer directly to the Shulman work, but I think it lies behind their thinking and that of their collaborators in this coordinated volume of essays. The second model for the book under review is the theory of learning/outcome assessment that lies behind most recent scholarship on the reform of post-secondary education. The authors here buy into the idea that what counts is less teaching than learningthe idea that teaching has to be structured to induce learning in a manner that can be assessed with some precision, and that this assessment needs to be fed back into pedagogical and curricular reform. From my point of view, this is very sensible and mainstream educational thinking. The question that needs to be asked, however, is whether what (arguably) works in post-secondary education will also work in professional education in law?
Moss and Curtis, in a very able introduction, point to many of the problems inherent in the current situation of American legal education. The first problem is that, with the dramatic expansion in the number of law schools over the past thirty or forty years, it is hard to generalize about American legal education. As with post-secondary education generally, there is such a range of resources, quality, and models for legal education that there is no longer a single model that fits all or even most law schools. Much of what is and has been written about legal education is based upon the model developed by and for the elite institutions: Harvard, Yale, Columbia, Chicago, Stanford, NYU, and their ilk. They have highly selective student bodies, enormous financial resources, highly qualified research faculties, and unique access to the elite job market for lawyers. Their curricula, in particular, are shaped by the fact that so many elite law school faculty have PhD degrees and desire to train their students to have compatibly academic approaches to the law. In contrast, lower on the law school food chain, the curricular emphasis is increasingly upon narrow professional training for the actual practice of law (something largely ignored at Yale Law School).
The second, related, problem, is that for more than a decade the business model for the practice of law has been in the process of transformation from domination by large, elite law firms hiring large numbers of very well-paid recent law school graduates subsidized by huge fees paid by cost-indifferent client corporations to a very different configuration. These days, corporate clients are extremely cost-sensitive and demand narrowly tailored legal services delivered by senior members of the firms they hire by the task, not on retainer. This has led to a dramatic downsizing of the large law firms, decreases in job securing for tenured partners, and dramatic reduction in the number of associates (untenured new or recent hires) employed by the firms. There has been a significant reduction in the number of law firms and lawyers employed by traditional firms. This has made it difficult for law schools to attract what had come to be the traditional number of new law students, and has made it even more difficult to place the students they train. The result has been to create a genuine crisis in legal education, with only a relative handful of the super-elite law schools more or less escaping these new realities of professional education in law. In this situation the pressure on all but the top law schools to refocus their curricula on job preparation is tremendous.
Ironically, since the 1960s the most promising curricular development in legal education has been the adoption of clinical models. Law students increasingly experience a John Dewey-like practical, apprenticeship model while still in school. In the view of many (I concur), this has helped to transform pedagogy as well as curriculum, and to move even the elite schools at least somewhat away from overly theoretical approaches to a focus on how law actually works, and what the lawyers role is in legal change. The number of clinical courses has expanded exponentially, and it has made a real difference to how faculty think about student learning and educational outcomes. The difficulty has been that much of clinical education has been provided by non-tenured clinical faculty hired specially to run these clinics, and these faculty have not always been treated with respect by their academic colleagues (although some schools have tried hard to integrate clinical faculty). In the current economic climate for the practice of law, these clinical models might provide an attractive alternative to traditional academic curriculum and pedagogy. But economic realities frequently induce lower tier law schools to repurpose their newly academic faculty members to engage in narrowly job-related teaching. Clinical legal education is in fact more expensive than what can be done in the large classroom that was typical of the traditional law school.
This is the challenge that confronts Moss and Curtis, and their collaborators in this volume. Most of them teach in lower tier law schools, many are clinical faculty, and all of them buy into the new teaching and learning approaches to higher education. Indeed, many of the authors appear to be spearheading a new movement to professionalize pedagogy in law schools, pushing back against the traditional mentorship models portrayed in movies and novels about elite legal education. All of these essays are nicely done, and some report real progress in reforming pedagogy and assessment in meaningful ways.
I have been teaching law in law schools off and on since 1971, but I no longer do so on a regular basis. But based on the experience of my friends and former students, I find it hard to imagine that the law school reformers (with whom I am very sympathetic) will be any more successful in refocusing higher education on student learning and on the formative assessment than those of us who work primarily in undergraduate education (as I do now). I have been unable over a decade to convince my own quite elite university to take assessment seriously, and I feel quite sure that my law school colleagues will not have better luck. That is too bad, since I think that Moss and Curtis are on the right track. Perhaps a genuine economic recovery will restore some of the business conditions that made the old system so flexible (and permitted some reform and experimentation). But for the moment legal education is in deep trouble, and the reformers are not likely to be heeded. Thats bad for legal educationand for law students.