Legal Commentary

In the last few years, there's been a fair amount of talk in the legal academy about how legal education ought to change, in part in response to the 2007 Carnegie Foundation report. Many assume that the report is a repeat of the familiar "law school should be more practical," and to a certain extent that's true. But it's more nuanced than that.

One way to get the gist is to head to the website of the new law school at UC-Irvine, founded by noted constitutional law scholar Erwin Chemerinsky. The site summarizes its curriculum this way: "A cutting-edge, strongly interdisciplinary curriculum will prepare UC Irvine School of Law graduates not only to think like a lawyer but also to actually practice law."  UCI's website also includes a key quote from the Carnegie report: "Most law schools give only casual attention to teaching students how to use legal thinking in the complexity of actual law practice.  Unlike other professional education, most notably medical school, legal education typically pays relatively little attention to direct training in professional practice.  The result is to prolong and reinforce the habits of thinking like a student rather than an apprentice practitioner, conveying the impression that lawyers are more like competitive scholars than attorneys engaged with the problems of clients." 

You can also read the executive summary of the Carnegie report here, but the highlights are: 

(1) Lawyers are best taught through a curriculum that integrates the three pillars of doctrine, skills, and professional identity, rather than having a curriculum that focuses on doctrine, and treats the other pillars as "add ons." 

Ideally, these three pillars (or "apprenticeships") can be integrated in the same course. For example, rather than having a course called "Torts" that focuses on doctrine, a separate course called "Factual Investigation" that focuses on a skill that any torts lawyer needs, and a course on "Professional Responsibility" that covers ethical dilemmas facing such lawyers, these things can all be included in one course, even if not all are covered in depth. One might call such a course "The Torts Process," which happens to be the name of a well-established course book from Aspen (Henderson et al) that uses this approach, and which I use to teach 1L Torts.

(2) The combination lecture/Socratic method is far overused, as is the Langdellian approach of learning the law through the dissection of appellate opinions. These problems are particularly pronounced after the first year.

(3) Law schools are far behind other educational institutions in how they assess student learning, and the extent to which they provide feedback that improves learning outcomes. 

(4) Problems 1-3 are all related.