Crossing the Bar-The Column of the Legal Education Committee

Crossing the Bar--Law Schools and Their Disciples


by Patricia Mell

"Institutions must meet the demands of their time, right or wrong, or they will soon cease to be institutions, for the lack of disciples."1 This statement is just as true in 2000 as it was when made in 1892. For many law schools, the issue continues to be how best to attract and maintain disciples in a competitive and rapidly changing legal market. The problem is acute for a legal academy criticized for its apparent failure to adequately prepare law students to practice law.

The criticism focuses on both the law school curriculum and the pedagogy used to deliver it. Law schools have not ignored the criticism, but in pursuing both an academic tradition and responding to a changed legal environment, they have been pulled in conflicting directions. The curricula of many law schools demonstrate movement away from a strictly doctrinal approach to one that includes courses in specialties, theoretical perspectives, and skills training.2 These changes reflect the law school’s attempt to balance its mission in a legal system itself in transition.

Law schools always have had the training of lawyers as their mission. The disagreement between the academy and its various constituencies lies in the differing views of what that training should be. Should law students study narrow, specialized areas in depth even if they ultimately do not practice in that area? Should practice skills be elevated over doctrine? What should the law school graduate be able to do immediately upon graduation? The battleground of these conflicting views is the law school curriculum.

Two significant analyses of the law school curriculum occurred during the last decade. One analysis was the American Bar Association’s MacCrate Report,3 which voiced serious concerns about teaching methodology and suggested a list of skills and values that all law students should acquire in law school.4 The second analysis was a survey of new course offerings in the upper level curriculum of 83 law schools (hereinafter "the survey"),5 published by the American Association of Law Schools five years after the MacCrate Report in 1997. This article briefly discusses this controversy over the law school’s mission as demonstrated by curriculum modification during the last decade.

The Divergent Views of the Mission of Law Schools

For most of the twentieth century, the legal academy and the practicing bar did not agree upon what type of curriculum best prepared students for the practice of law. Christopher Columbus Langdell, dean of the Harvard Law School in 1870, introduced the case method, or the Socratic method, of teaching to the American law school. As inheritors of Langdell’s methods of teaching law students, traditional legal educators before the 1980s emphasized teaching broad legal doctrine and analysis, not specific specialties or practical skills.

The underlying assumption for this approach was that law graduates would learn practical skills and expertise in specific areas from senior associates and partners in a law firm setting.6 This approach was never the best fit between the needs of the bar and the educational goals of law schools. Emphasizing doctrine to the exclusion of practical skills left the law graduate without a way to use the doctrine.

When the American Bar Association first established its standards for approval of law schools in 1921, it rejected a clinical (apprenticeship) component and mandated a three-year law school without an apprenticeship.7 It was not long before this method met with criticism.8 Periodically, critics both within and without the academy pushed for changes in the pedagogy of law school. The attempts to revise law schools peaked in the late 1960s.9 Despite these challenges, the 1973 revisions to the ABA standards retained the 1921 law school duration and residency requirements.

The divergence between law schools and their disciples increased when schools began to replace upper level doctrinal courses with ones that taught more theoretical perspectives of the law, such as law and economics, law and literature, critical race theory, critical legal theory, feminist jurisprudence, and other courses based on a social science perspective.10 In many respects, the emphasis on theory was a reaction to society’s need to govern individuals in a pluralistic society.11 The pursuit by law faculties of more theoretical perspectives in the curriculum may be viewed as the ultimate inheritance of the Langdellian view of legal education.

In essence, Langdell elevated legal education from a trade to a profession by treating the law as a science to be studied as objective theories.12 If the traditional theories excluded whole segments of the population or failed in the face of modern problems, then, through its academic pursuit, the law would provide new ways of solving "new" problems.

For some observers of the academy, however, the pendulum swung too far away from the practical. The intellectual distance of the academy from the practice actually reduced the influence of the academy on society. Harry T. Edwards wrote in 1992 that

Because too few law professors are producing articles or treatises that have direct utility for judges, administrators, legislators, and practitioners, too many important social issues are resolved without the needed input from academic lawyers. The problem is not simply the number of "practical" scholars, but their waning prestige within the academy.13

Law students trained primarily in the academic model, he continued, would well be able to "understand and apply a theoretical framework and therefore think beyond the mundane in assessing the work of the legal profession."14 They would also be unfortunately ill-equipped for the realities of the practice since theory would be of little use if the student did not also understand doctrine.15

While the academy was moving toward theory, the practice was moving away from service toward the practice of law as a business. Law firms in the 1980s began to explode in size. They were becoming less a place where new lawyers could be trained on the job.16 Not surprisingly, criticism for the methods of law schools increased.17 Each constituency voiced dissatisfaction with the preparation of law students and suggested modifications and additions to the law school curriculum that would better prepare the law student to practice law upon graduation.18 As a result of these pressures, legal educators were forced to try to balance the academic pursuit of the law with its practical application.

On the one hand, the purely academic pursuit of theoretical law develops the new theories necessary to deal with the changes in society. Taken to its extreme in law school curriculum however, it may leave the graduating law student with little concept of what the law is supposed to achieve in general or how to practice law in particular. As stated by Professor Alex Johnson Jr., Professor of Law at the University of Virginia Law School,

In legal education we encourage students to explore the relationship between law and other academic disciplines, and then we send them out into the real world unable to practice a kind of law that rarely recognizes law’s relationship to anything but money....The discordant emphases of legal education and actual practice are the root of the dissatisfaction that new lawyers experience.19

On the other hand, law schools should not succumb to the pressure of the bar and law students and merely teach law students how to practice law. Professor Cribbet observed:

If a legal education is designed solely to prepare the student to pass a bar examination, to know the rules (whatever that means) and to learns the tricks of the trade, then law school does not belong in the modern university. These things can be handled outside the academy and with far less of an expenditure of time, money and energy. Such a design would also result in an unlearned bar and in lawyers ill-equipped to serve the needs of a complex, democratic society....To the extent that law schools see themselves in such a narrow role, they are sowing the seed of their own destruction.20

The Practitioner’s View of the Law School’s Mission—The ABA’s MacCrate Report

The most recent statement of the ABA concerning the law school’s mission was the MacCrate Report. Its task force was to "look at public and professional expectations of what lawyers are and ought to be, and what skills and values they need to fulfill those expectations, and how they go about acquiring those skills and values during and after law school."21

The resulting report identified several professional skills and values considered necessary for the competent representation of clients by attorneys.22 The skills identified were problem solving, counseling, negotiation, advising clients about problem resolution options, law office administration skills, and skills involved in recognizing and resolving ethical dilemmas.23 The four fundamental values were providing competent representation; striving to promote justice, fairness, and morality; striving to improve the profession; and professional self-development.24

While the report declined to attack the dominant law school teaching methodology, it did encourage law schools to actively provide courses that would teach fundamental skills and values to those students who planned to go into a "relatively unsupervised practice setting."25 While the MacCrate Report listed the skills and values (SSV) any good lawyer should have, it gave law schools the flexibility to decide how and if they should be taught. Notably, it did not require such training for all law students.26

These skills and values were not presented to law schools as an accreditation mandate. In fact, the drafters of the MacCrate Report stated very clearly that the SSV was not "a mandatory code of rules; a reference point for malpractice litigation; a standard for law school curriculum; a measure for law school accreditation; or a source for bar examinations."27 Consequently, not all law schools accepted the MacCrate recommendations.

One year after the report, an informal poll of clinical teachers at mid-western law schools showed that of the approximately fifty clinical teachers polled, almost half "worked at law schools where there had been no organized discussions of the MacCrate Report and where no discussions were planned."28

Those schools that wanted to pursue the ideals of MacCrate were presented with a practical problem of implementation and focus for their respective curricula. While the skills and values listed in the SSV complemented one another, they represented traditionally divergent theories of legal education—practice versus theory. Law schools with limited resources that wanted to develop skills courses were faced with a resource allocation question. Would the development of skills courses necessarily limit the development of courses in theoretical perspectives or specializations? Would theory courses expose students to the fundamental values of the SSV?

The Law School’s Response through the Curriculum—The AALS Survey

In the 1990s law schools attempted to narrow the gap between their educational goals and the expectations of their disciples by again changing the law school curriculum. Curriculum development at law schools is not uniform and the addition of new courses to law school curricula seems to be directly linked to the MacCrate Report in only two cases, the Litigation and Alternative Dispute Resolution program of Chicago-Kent and the Client Interviewing and Counseling program of the University of Montana School of Law. Despite this, the AALS survey suggests that the number of upper division courses in specialty areas, theoretical perspectives, and skills-training programs at law schools grew significantly after 1992.

The survey asked deans to report courses added to the post first-year curriculum between the academic years of fall 1994 to spring 1997 that "treated new subject matter, combined old subjects in a new way, or significantly changed pedagogy."29 It listed the top 25 areas of curricular growth next to the total number of new courses reported in that subject matter cluster.30 The general results were that law schools were adding an average of five new courses each year to their curriculum.31 This means that in each of the three years surveyed, law schools were changing the upper level curriculum by an average of five percent.32

Although the survey did not refer to the MacCrate report as having any influence on the addition of any new courses, the new course subject matter groupings and the predominance of practical skills courses in them suggest that the legal academy noted MacCrate’s concerns on preparing lawyers with the SSV’s fundamental skills. The largest growth in new classes was in courses dealing with writing, skills training, and law practice. Four skills clusters ranked in the top 15 areas of new course development: the litigation process, lawyering courses, clinics or externships, and dispute resolution skills. Legal writing and nonlegal skills made the second tier of new courses. Combined, these clusters accounted for 307 new courses.33 Notably, none of these clusters appeared in a 1991 pre-MacCrate survey of law school curricula.34

The authors of the survey also noted the proliferation of courses in specialty areas. The connection between concentrations or specialties and adherence to the SSV’s four fundamental values was less obvious, but the authors suggest that allowing students to pursue the in-depth study of a narrow area "might itself have pedagogic value."35 They support this view with a quote from Ronald Cass, dean of Boston University School of Law, who said that "A major field requires you to study in a different way and on a higher level than do general survey courses. You get more out of the subject area."36

Trends in the Curriculum

Virtually all law schools offer some combination of skills courses and specialty programs, but vary widely in format and requirements.37 In clinics, the students represent clients under the supervision of a full-time clinical or other law school professor. In an externship, the student is placed in a government law office and represents clients under the direct supervision of a practicing attorney and general supervision of a law school faculty member.

Students who pursue a concentration are generally required to take a prescribed number of credit hours in a specialty subject. The other requirements may include the publication of an article in the subject matter and the maintenance of a specified grade point average. Many schools will record the completion of a concentration on the student’s transcript. The diversity of these programs negates the perceived conflict between theory and skills in the law school curriculum.

While these additions to the curriculum reflect the needs of the legal community, they present problems of their own. Well-funded law school programs can offer several clinics concurrently.38 Since clinical programs are expensive to operate due to the low number of students who can participate in any one class, most schools must limit their clinical programs to one or two programs.39 It is unlikely that any traditional school could afford to provide a clinical experience to every law student. The same must be said for the development of specialties or concentrations, which law schools like to develop concentrations or specialties to set themselves apart from other law schools.40

According to U.S. News & World Report’s "2001 Annual Guide to America’s Best Graduate Schools," in the April 10, 2000 issue, the most popular concentrations include, dispute resolution, clinical training, environmental law, health law, intellectual property, international law, trial advocacy, and tax law. Some schools have more than one specialty, but even a well-endowed law school cannot present a sufficient number of courses to support every possible specialty. Law schools must choose how to spend their resources.

These changes have not eliminated all of the criticism. There may remain a crucial disconnect between the expectations of law students who take these programs believing they have résumé value and the assessment by many employers that the completion of these programs does not add to a graduating law student’s credentials for hiring purposes.

According to an informal poll of mid-western admissions and career services professionals, law students like to have more practical training and concentrations in specific subject matters. The general consensus of students seems to be that having a critical mass of courses in specific subject matter areas (concentrations) and trial advocacy courses (clinic or otherwise) will make them more marketable in a tight job market.

The MacCrate Report indicated that hiring partners did not generally consider a student’s participation in clinics in making hiring decisions.41 Eight years have passed since that observation. Some evidence suggests that participation in formal, faculty-run skills training programs is now given special consideration in determining an applicant’s attractiveness to a potential employer.

The National Association for Law Placement (NALP) provides a standardized form for all law school career services requests from employers, which law schools send to all employers before the fall interview season. Employers must specifically list any criteria they will consider in hiring, including class rank, law journal experience, moot court/mock trial, technical background, advanced degree other than JD, and foreign language skills.

The use of concentrations as criteria for hiring is less certain.42 Most employers participating in a Michigan State University--Detroit College of Law series of focus group discussions indicated that the study of a specific substantive area was not a significant factor in the hiring decision. Far more important to the employer was the student’s ability to write well. In this respect, law schools may need to market concentrations and theoretical perspectives courses differently to employers. Employers uniformly appreciate students who are able to do both traditional library and computerized research well and who communicate well both orally and in writing. These are precisely the skills that students learn in concentrations and specialty coursework, particularly if the course(s) are taught in a seminar or other small group setting.43

Law schools will continue to develop courses and programs that "meet the demands of their time."44 An increase in skills training courses has occurred. The proliferation of these courses answered the stated need of the bar for fundamental skills training. The development of specialty courses allows students to study a specific area in great detail, exposing them to material that will develop the fundamental values of all lawyers. Changes in curriculum develop slowly, however, it would appear that law schools are taking steps to narrow the gap between the academy and the rest of the profession.

Footnotes

1. Edward J. Phelps, Methods of Legal Education, 1 Yale Law Journal 139, 143 (1892). The statement was made at a symposium on legal education. In 1892, the Socratic method of teaching law students was still fairly new. Some professors and practitioners remained skeptical of the benefits of this method.

2. A "doctrinal" curriculum would be restricted to courses in the black letter law of contracts, criminal law, corporations, etc.

3. American Bar Association Section on Legal Education and Admissions to the Bar, Legal Education and Professional Development—An Educational Continuum, report of the task force on law schools and the profession: narrowing the gap (1992) (hereafter "MacCrate Report").

4. Id.

5. Deborah Jones Merritt and Jennifer Cihon, New Course Offerings in the Upper Level Curriculum: Report of an AALS Survey, 47 Journal of Legal Education 525 (Number 4, December 1997).

6. John S. Elson, The Regulation of Legal Education: The Potential for Implementing the MacCrate Report’s Recommendations for Curricular Reform, 1 Clinical L Rev 363, 370 (1994).

7. Elihu Root, Report of the Special Committee to the Section of Legal Educators and Admissions to the Bar of the American Bar Association, 1921 ABA Sec Legal Educ & Admissions to the Bar.

8. Jerome Frank first advocated the development of a "clinical lawyer school" in 1933 as a criticism of the Langdellian approach. Jerome Frank, Why Not a Clinical Lawyer School?, 81 U PA L Rev 907 (1933).

9. For instance, Charles J. Meyers, chairman of the Committee on Curriculum of the American Association of Law Schools stated that legal education was "too rigid, too uniform, too narrow, too repetitive, or too long. Meyers, Report of the Chairman of the Committee on Curriculum, 1968 Assn Am L Sch, Part 1, 2, at 8. See also, Herbert L. Parker and Thomas Erlich, New Directions in Legal Education, 1972, and Derek C. Bok, A Different Way of Looking at the World, 20 Harv L Rev Sch Bul, Mar-Apr 1969.

10. In 1991, the most common new courses were feminist theory, critical race theory, or critical legal studies. Fourteen schools had also added courses on law and economics. The survey, supra. See Taunya Lovell Banks, Twenty Most Common New Courses Added over the Past Three Years, AALS Newsl, Apr. 1992.

11. See generally, M. Kelman, A Guide to Critical Legal Studies (1987); R. M. Unger, the critical legal studies movement (1986).

12. See generally, W. Burlette Carter, Reconstructing Langdell, 32 GA L Rev 1 (1997).

13. Harry T. Edwards, The Growing Disjunction Between Legal Education and the Legal Profession, 91 Mich L Rev 34 (1992).

14. Id. at 39

15. Id.

16. These courses reflect what has been charitably called a growing orientation toward academic theory,...but offers little or no law. Almost concomitantly however, the practice of law has marched in a totally different direction—toward commercialization...student reported that the law practice ha[d] become more like a trade than a profession, with an emphasis on money and profit rather than on service ad justice. Alex M. Johnson, Jr., Think Like a Lawyer, Work Like a Machine: The Dissonance between Law School and Law Practice, 64 S Cal L Rev 1231 (1991).

17. Warren Burger, The Role of the Law Schools in the Teaching of Legal Ethics and Professional Responsibility, 29 Cleve St L Rev 361 (1981); Sandra Day O’Connor, Legal Education and Responsibility, 53 Fordham L Rev 659 (1985).

18. In 1979, the American Bar Association, Section of Legal Education and Admissions to the Bar, issued the Crampton Report, entitled Report and Recommendations of the Task Force on Lawyer Competency: The Role of the Law Schools (1979). In 1980, the Association of American Law Schools—American Bar Association published Guidelines for Clinical Legal Education.

19. Johnson, supra at 1251.

20. John E. Cribbet, The Changeless, Ever-changing University: The Role of the Law School, 26 Ariz L Rev 241, 256 (1984). Professor Cribbet was chancellor emeritus and Corcoran Professor of Law at the University of Illinois College of Law. He was president of the AALS in 1979.

21. American Bar Association Press Release (August 9, 1992).

22. American Bar Association, Section of Legal Education and Admissions to the Bar, Task Force of Law Schools and the Profession: Narrowing the Gap—Statement of Fundamental Lawyering Skills and Professional Values. The Statement of Professional Skills and Values was published as a prospectus for distribution to law students.

23. Id., at 138-41.

24. Id.

25. Id.

26. Id.

27. SSV, at 2.

28. Peter A. Joy, The MacCrate Report: Moving Toward Integrated Learning Experiences, 1 Clinical L Rev 401 (1994).

29. The survey, supra at 525. In the survey, respondents were asked whether the course included legal writing, simulations, or other legal skills components. Eighty-three schools, or 46.4 percent of the law schools responded to the survey.

30. Id. at 537. The results were reported in Table 2 of the survey.

31. Id. at 528.

32. Id.

33. Id. at 565.

34. Id. at 566. An interesting observation of the survey was that Midwestern and mid-continent law schools tended to be more innovative, on average, than schools in the Northeast. Midwest and mid-continent schools added more new courses per student and per curriculum size than did their counterparts in other areas of the country.

35. Id. at 569.

36. Darlene Ricker, On Track, Student Law, Mar. 1993, at 36, 40.

37. See generally, ABA Guide to Law Schools, supra.

38. Georgetown University offers twelve clinical programs in a variety of subject matter areas. Georgetown University, Law Center Clinical Program (visited May 24, 2000), www.law.georgetown.edu/clinics/index.html

39. See generally, The Official American Bar Association Guide to Approved Law Schools (1999). This guide uses a series of factors that students can use to compare law schools. Four of the items used to compare schools deal specifically with clinical/practice skills oriented offerings. The guide lists the number of positions available in simulation courses, the number of positions available in faculty supervised clinics and number of students involved in field placements, and the number of students participating in moot court or trial competitions for every law school.

40. The guide does not specifically refer to concentrations or specialties, however, the U.S. News and World Report, 2001 Annual Guide to America’s Best Graduate Schools, April 10, 2000, listed dispute resolution, taxation, international law, health law, environmental law, intellectual property, and trial advocacy as the most popular specialties. Michigan State University--Detroit College of Law has concentration programs in Taxation, International Law and the Law and Social Work Program that prepares student for practice in the family court system. The Law College is considering the development of a concentration in trial advocacy.

41. Supra, at pp 6-7.

42. Michigan State University@Detroit College of Law conducted a series of focus group discussions in three cities (Detroit, East Lansing, and Grand Rapids). The invitees were partners of major law firms, judges, and business leaders. They were asked to identify the skill set they wanted to see in newly hired law graduates.

43. The survey, at 569, n 148.

44. Edward J. Phelps, Methods of Legal Education, 1 Yale Law Journal 139, 143 (1892).

*Special thanks to Kristine Lapinski, library research assistant, for her assistance with this project.



Patricia Mell
Patricia Mell is Associate Dean for Academic Affairs and Professor of Law at the Michigan State University--Detroit College of Law. She is a member of the Professional Development and Opportunities Committee of the Open Justice Commission of the State Bar of Michigan and a member of the Legal Education Committee of the State Bar of Michigan. She received her J.D. from Case Western Reserve University Law School and graduated with honors from Wellesley College. She teaches criminal law, small business enterprises, and white collar crime.


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