Law Teaching and Who, What, Where, When and Why?

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There are five simple questions that offer a focus for the analysis of what law schools try to do and what they are capable of achieving. This orientation has gained increased importance as law schools try to deal with slumping enrollments, develop strategies to attract applicants from a pool decreasing not only in absolute numbers but qualitatively, and respond to criticisms from the bench and bar that the schools are failing to educate their students adequately for their careers as lawyers. Pilfered from journalism the five questions are, who are we teaching, what are we teaching them, in what environment does our teaching take place, at what point in their development are we seeking to teach them, and why are we seeking to educate the students in relation to the specific subject matter.

 

Some of the Criticisms are Legitimate

 

The character of the core law school curriculum and its primary methods is a reflection of the fact that most law professors, particularly those of the traditional tenure-track variety, were extremely successful in their undergraduate and law school careers at engaging in a specific type of analytical subject matter manipulation where they excelled in the oral and written forms of discourse.[1] The ability to perform this task at a high level represented the primary or even the sole criterion for gauging the excellence of performance. Those most skilled in that analytical process received the greatest rewards and recognition for their successful application of the methodology. One result is that in entering academia as members of a law school faculty the most skilled in the application of that methodology have predictably felt endowed by their obvious prowess in that experience with the belief that they could teach well using the same approaches once becoming a law professor and that it represented the most effective educational strategy.

 

The virtually automatic adoption of doing “what worked for you” fails our students on several levels.   One is that it does not take into account the fact that the considerable majority of other law students even in the elite institutions where the emergent law teacher achieved great success did not excel or function on the same levels of quality. These “other” students either do not grasp material in the manner achieved by the typical law professor who ranked among the top five or ten percent of his or her class at the most highly competitive institutions or those students may need or benefit more from other methods of instruction in order to achieve the desired learning. Nor have we sought to test in any solidly empirical manner whether the methods used to teach us in our own law school careers were effective or whether better methods would have achieved even greater success.

 

The Core Methodology Relates Mainly to the Best and the Brightest

 

My premise is that there is no guarantee that earlier academic success based on excelling in test taking of a highly specialized nature such as exists in the essay examination format in law school bears any clear relationship to excellence in teaching, or excellence in the diverse abilities and skills that determine the quality of a lawyer’s performance.   Although I can’t remember who suggested the point to me, it has been argued that the pool of high achieving students admitted to such institutions as Harvard and Yale law schools would learn the material and be able to function ably as lawyers in spite of the teaching they receive. Simply put, driven, highly intelligent, organized self-starters will master the method and materials of almost anything put before them and have the ability to go beyond that material to add their own rich base, with or without the interventions of law teachers.

 

One problem is that such self-motivating and autodidactic students may at best only represent ten to twenty percent of those enrolled in American law schools. Given what appears to be a significant qualitative decline in the credentials of those now entering law schools the volume of extremely highly qualified law students may well be declining rapidly as law school classes shrink, the best and the brightest who previously pursued a law degree enroll in other types of graduate endeavors, and law schools accept applicants they would not have considered for admission as recently as four or five years ago. This has very significant implications for the activity of teaching, the legitimacy of legal education, and for the future of the legal profession—not to mention the effect on the quality of representation received by clients.

 

From the perspective of the quality of law school teaching, if ten to twenty percent of our students essentially don’t need us because they are capable of learning the essence of what we have to teach in the existing format and through the primary methodology, that still leaves eighty or ninety percent of law students who can benefit from our efforts. The problem, however, is that we have designed and implemented the law school curriculum and methodology for the limited number of students who don’t really need us all that much rather than for the vast majority who do. This latter set includes an increasing proportion of law students who need intensive educational interactions with continual feedback and critique along with students who require some form of remedial education due to deficiencies in their earlier education or reduced abilities that put their potential to offer quality service to clients in question.

 

High-Level Analytic Precision Is Vital and Desirable but Unfortunately In Short Supply

 

In writing this brief critique I am in no way demeaning the importance of high-level analytic precision. Of course it is a primary characteristic that we hope all lawyers possess. And of course we know that the quality is not distributed evenly just as no other capability of consequence is found in identical proportions in all humans. But in affirming my enormous respect for the power of intellect and clear and precise thinking I am arguing that the learning achieved by our students should not be measured only by a limited testing methodology, but by different career aims and options and other important variables. Nor are many of the tasks that a good lawyer must do effectively inevitably determined by raw analytical power.

 

It has been my experience that many students in courses involving the use of methods and material such as negotiation, strategy, counseling, dispute resolution, trial advocacy and other subject matters relating directly to the quality of law practice are able to match or surpass the performance quality achieved by students who excel in the traditional course formats. This raises a core question of whether the traditional methods and primary subject matters we concentrate on in American legal education adequately educate those aspiring to become lawyers responsible for representing a diverse range of clients across a wide spectrum of forms of law practice or whether we are preparing law students for something that is only a single element of what they will spend their lives doing in the legal profession.

 

How Should We Educate Students for the Complex Multiverse of Law Practice

 

In regard to our teaching there is no empirical proof that any connection exists between the teaching methods used and the substance of what is taught in American law schools and the quality of service, understanding of the law, and the ethical behavior of law schools’ graduates.   Our justification of the quality of our teaching and the importance of the subject matters we advance in our classes is based on assumption, tradition and anecdotal examples. We have no real idea of whether the legal curriculum is effective or whether we consistently provide a quality education through the content offered and methods used. Nor is it likely there will be an honest internal critique of the system. Since law faculty are the exclusive judges of their own performance and of the wisdom of the curricular structure and content with which they function, any assessment that does occur is likely to be self-interested and idiosyncratic rather than rigorous and objective.

 

At the heart of such issues is the extent of law schools’ responsibility concerning the educating of students whose career aims are directed toward becoming lawyers. If law schools are to be evaluated on the basis of how well they fulfill their obligations, fairness demands that those obligations be defined clearly and substantively. It is also only fair to note the limits not only about what law schools ought to do within the present structure but to be honest about the limits on what they are capable of doing given resources, student capabilities, timing of the educational input and the ability of our graduates to buffer the force of the institutions, economics and other dynamics of law practice that are in play after students graduate and enter the legal profession.

 

The Primary Problem Most Likely Lies with Lawyers, Judges, Clients and Economics  Rather than Law Schools

 

There are ways to begin the process of assessing whether legal education is being done well in terms of curriculum, method or content. We can, for example, begin by looking at the situation as one in which we perform a kind of “reverse engineering” thought experiment. We can begin by assuming that law schools are capable and also responsible for educating their students in ways that significantly increase the probability that they will be lawyers who render quality service to clients, behave ethically and in a principled way, and who honor their obligations to advance the interests of justice in the key institutions. In my own practice experience [and it is substantial and diverse] I have encountered far more bad lawyering than I would hope if the problem were as simple as one of inadequate education.

 

In this assessment “experiment” we can follow two tangents. Along one tangent we can evaluate the quality of lawyers in terms of considerations such as how well they represent clients, the extent to which lawyers can be said to be “ethical” professionals and whether lawyers—as practitioners and judges—ensure that the institutions of the justice system and the rule of law are operating fairly and with a significant degree of qualitative efficiency. The other tangent would begin by setting forth reasonable ideals of quality, ethics, professionalism and institutional behavior based on what society has a legitimate interest in relative to the profession.

 

If we assess the quality of our teaching in reference to the quality of the legal profession based on service to clients and improvement of the institutions of justice I feel comfortable stating that the quality of legal services provided too many clients is sub-standard and the inefficiency and continuing injustices produced by our key institutions remains relatively extreme. This is due to a variety of factors that to some extent includes inadequate education on the part of law schools. But the rising tide of criticisms directed at law schools about graduates who are not ready to step into law practice as fully functioning professionals in many ways simply offer a scapegoat.

 

In the midst of the discussion about law schools’ duty to better educate their students in preparing them to enter the practice of law it is my position that a substantial proportion of the lack of quality and professionalism in the legal profession has little or nothing to do with education but relates to considerations of time and economic pressures spread across the demands of providing service to a multiplicity of clients as well as the continual pressure on many lawyers to find enough paying clients to keep their practices afloat. The lack of quality and professionalism also involves institutional pressures to conform to the assembly line processes and expectations of important parts of the legal system as well as one’s employers. This includes the criminal “justice” machinery and many civil disputes and transactions. These problems are exacerbated by laziness, unprofessionalism and incompetence.[2]

 

We Are Already Teaching Skills But Are They the Right Ones and Is Anyone Listening

 

Lost in many of the discussions about producing supposedly practice ready graduates through curriculum reforms requiring such things as 6-15 hours of skills related courses is that the numerous criticisms of law schools for failing to produce practice ready graduates are occurring in a context where, for quite some time, a significant proportion of law students have already taken courses with practice components that satisfy the concept. Given the continuing criticism from the bench and bar apparently those courses are insufficient to make students practice ready.

 

For example, many law schools already require all students to take six or more hours of Legal Writing. Yet a major complaint from lawyers and judges is that graduates can’t write professionally. Similarly, numerous other courses include writing elements and paper requirements. Still, we hear that law graduates can’t write well. In addition, courses in ADR, trial and pre-trial skills, transactions, legal profession and clinics, along with wider use of simulation and problem solving methods in traditional law courses have proliferated. Yet rather than softening criticism we experience a rising sense of discord about the lack of practice ready graduates. Numerous law schools have even hired tutors to assist troubled students in their law courses as well as to assist with preparation for the bar exam.

 

My point is that there is an incredible amount of confusion and sub-textual agendas flying around here on the issue of what ought to be done during law school and what can be done with a realistic hope for the desired learning outcomes. The reality of the situation is that there are far more limits to what can be taught or learned during law school than we appear to understand. Many law courses relating to professional skills are by and large already in existence for a wide variety of students but apparently aren’t working all that well from the [self-serving] perspectives of lawyers and judges who—if we take their statements to the logical conclusion—were themselves not educated effectively or adequately and therefore presumably lack the same skills they are lamenting as missing among new graduates. We even ask, who are these ill-educated and ill-prepared people [if we accept the logic of their critiques of legal education] who are nonetheless apparently quite successful in their own legal careers to be criticizing recent law graduates who have been exposed to considerably more skills, experiential and writing instruction than past generations of law graduates.

 

Irony aside, identifying what is going on, what is realistically doable, and understanding honest solutions is not easy. As we have seen with mandated courses in professionalism and legal ethics assuming we can solve significant problems simply by adding a law school course in that area does not resolve critical concerns. I feel entirely comfortable with the conclusion that the mandated study of ethics and the legal profession has not produced more ethical lawyers. It has spawned an ethics industry, created law teaching positions, expensive textbooks, and allowed law students to pass a national ethics examination that students resent but that makes a great deal of money for the testing organization and those who author the materials students rely on in preparing for the exam. BUT all this does nothing to make lawyers more ethical because whether we talk about the effects of institutional power as described by Jacques Ellul in The Technological Society or Hermann Hesse’s Beneath the Wheel, the simple fact is that the power and operational conditions of the professional milieu determines our behavior to a degree that overwhelms educational rhetoric.

 

In conclusion, it is worthwhile considering whether law schools are largely already doing that which is possible. OR maybe law teachers whether engaged in traditional courses, skills courses using simulation methodologies, clinics, externships and legal writing courses aren’t as effective as they like to think. OR—and this is one of my favorites–maybe the complex and diverse reality of law practice transcends most of what can be done in law school. OR maybe lawyers and judges just need a scapegoat to blame for their own deficiencies and hypocrisy. OR, and this is a serious issue, maybe quite a few people being admitted to law schools aren’t that smart and lack the intellectual ability to do what really good lawyers have to do, along with the fact that quite a few lack the intense self-discipline and strong work habits required to be a good to exceptional lawyer. On this issue connected with the constant complaint about law graduates’ writing inadequacy I have always been convinced that writing and clarity of thought are closely linked. If someone can’t think with precision that person can’t communicate with precision whether in writing or orally.

 

[1] On various issues related to educational themes, see, David Barnhizer, “The Purposes and Methods of American Legal Education”, 36 Journal of the Legal Profession 1 (2012).

 

 

[2] See, e.g., Barnhizer, David R., “Golem, ‘Gollum’, Gone: The Lost Honor of the Legal Profession” (January 3, 2011). Cleveland-Marshall Legal Studies Paper No. 11-203. Available at SSRN: http://ssrn.com/abstract=1734412. See also, David Barnhizer, Abandoning an Unethical System of Legal Ethics, 2012 Michigan St. L. Rev. 271; David Barnhizer, “Profession Deleted: Using Market and Liability Forces to Regulate the Very Ordinary Business of Law Practice for Profit,” 17 Georgetown J. of Legal Ethics (2004); “Princes of Darkness and Angels of Light: The Soul of the American Lawyer,” 14 Notre Dame Journal of Law, Ethics & Public Policy 371 (2000).

 

 

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