Law schools need to do a better job integrating the teaching of legal doctrine with a much stronger focus on helping students develop practical “lawyering” skills and understandings of ethical and moral considerations, according to a new study from the Carnegie Foundation for the Advancement of Teaching.
“The gap between learning to think like a lawyer and being capable of acting like a lawyer, both clinically and morally, is, if anything, greater than it’s ever been before,” said Lee S. Shulman, president of the foundation, which released “Educating Lawyers: Preparation for the Profession of Law,” one of a series of Carnegie reports on professional education, on Thursday.
The study comes at a time when numerous law schools from across the country (including Harvard and Stanford) have initiated reviews of their curriculums, and the Association of American Law Schools and American Bar Association both have active committees examining the law school curriculum, Shulman said. Several institutions are praised in the report as already moving in the direction the Carnegie Foundation is proposing, including Southwestern Law School and the law schools at the City University of New York and Yale and New York Universities.
The two-year study, based on field work at 16 institutions in the U.S. and Canada, found that law schools have proven themselves to be exceptionally successful at quickly training their students to master “a distinctive habit of thinking.” Within months of arriving, the report found, law students “demonstrate new capacities for understanding legal processes, for seeing both sides of legal arguments, for sifting through facts and precedents in search of the more plausible account, for using precise language, and for understanding the applications and conflicts of legal rules.”
But the report also found that the “remarkably uniform” approach to the instruction of these legal thinking skills -- the “case-dialogue method” -- encourages students to focus on abstractions in reaching conclusions, to consider “as ‘facts’ only those details that contribute to someone’s staking a legal claim on the basis of precedent.”
“By contrast,” the report’s summary reads, “the task of connecting these conclusions with the rich complexity of actual situations that involve full-dimensional people, let alone the job of thinking through the social consequences or ethical aspects of the conclusions, remains outside the case-dialogue method. Issues such as the social needs or matters of justice involved in cases do get attention in some case-dialogue classrooms, but these issues are almost always treated as addenda.”
“In theory, Americans have always recognized that lawyers must serve two interests: the interest of justice and the interest of their clients,” said William M. Sullivan, a senior scholar at Carnegie and the primary author of the study. “Learning to think like a lawyer ... is insufficient as a basis for becoming a competent legal professional.”
The report lays out a number of recommendations to counteract Sullivan’s observation that instruction of legal thinking tends to overwhelm the teaching of practical lawyering skills and the role of ethical and moral considerations in today’s law schools. Among the recommendations are to offer a more integrated three-part curriculum and to encourage faculty to do work across that curriculum. Law schools need to revisit their traditional hierarchies that value the teaching of legal scholarship over more costly clinical instruction, Shulman added, in determining how best to reallocate resources.
The report also recommends that law schools should make better use of the second and third years by offering “capstone” opportunities for students to develop their specialties, complete advanced clinical training and work closely with faculty. “In many law schools, there are clinical opportunities for students, externships and different kinds of skill courses that students may choose to take, mostly electives in either the second or third year. But our hope is that there could be more of these, more places for more students,” said Judith Welch Wegner, who led the study. Wegner is a professor of law at the University of North Carolina at Chapel Hill and a past president of the Association of American Law Schools.
The executive director of the association was unavailable for comment Thursday afternoon, due to the AALS’s annual meeting in Washington.