Sonsteng, J O et al. --- "The history and status of legal education" [2009] LegEdDig 7; (2009) 17(1) Legal Education Digest 20

---

The history and status of legal education

J O Sonsteng, D Ward, C Bruce & M Petersen

Legal Stud Research P Series, William Mitchell College of Law, Paper No. 89, 2008, pp 1–93

The law school legal education system seems successful at a glance. The general law school curriculum is a significant source of training in eight of seventeen important legal practice skills: library legal research; knowledge of the substantive law; legal analysis and legal reasoning; sensitivity to professional ethical concerns; computer legal research; knowledge of procedural law, written communication; the ability to diagnose and plan for legal problems; and legal practice management training in technology, computers, and communication skills.

In spite of this evidence, a closer examination of the legal education system reveals that the legal education system does not equip its graduates with the skills to understand and thrive in the practice of law.

In addition, the legal education system does not provide a significant source of training in nine legal practice skill areas: (1) understanding and conducting litigation; (2) drafting legal documents; (3) oral communications; (4) negotiations; (5) fact gathering; (6) counseling; (7) organising and managing legal work; (8) instilling others’ confidence in the students; and (9) providing the ability to obtain and keep clients. Nor does the legal education system provide training in eight important legal practice management skills areas: (1) project and time management; (2) efficiency, planning, resource allocation, and budgeting; (3) interpersonal communications and staff relations; (4) fee arrangements, pricing, and billing; (5) governance, decision-making, and long-range strategic planning; (6) marketing and client development; (7) capitalisation and investment; or (8) human resources, hiring, and support staff.

Before law was taught in schools in the late 1700s, aspiring lawyers received little formal education. In fact, legal training continued to be informal into the twentieth century. Many lawyers were self-taught, while others trained as apprentices and received practical education by working under experienced professionals.

The apprenticeship system worked well as it adapted easily and apprentice labour could fill a number of necessary functions. Despite the benefits, apprentice training was unstructured and uneven. Time was often spent on menial tasks rather than study, and even the best lawyers could not always dedicate adequate time to their apprentices.

The first law schools grew out of specialised law offices that employed several apprentices at one time. Originally, law schools were a supplement to the apprenticeship program, and justified their existence on the ground that they were specially adapted to provide one phase of a student’s multi-phased preparation for lawyering.

Harvard Law School, the first university affiliated law school, was in operation by 1817. The law degree (LLB) was not a post-graduate degree. It was not standard for law schools to require any prior college work. Classes at Harvard generally consisted of students gathered in a hall to listen to a professor lecture on the law.

By 1860, few states required any sort of apprenticeship. Twenty-one law schools had become popular alternatives for law students. The proprietary law schools (those not affiliated with a university) provided a structured and systematic approach to legal education. In addition, they offered students a more significant practice component than university-based law schools. The universities distinguished themselves with a mission to teach theory, history, and philosophy of the law.

The lecture method was predominant in all schools. It demanded little from the students and offered very little practical information about how to apply what had been learned.

Harvard and other law schools struggled to compete with the education provided to law students studying under a practitioner, and they sought to make changes that would further their recruitment efforts.

There were no exams or attendance requirements, and faculty taught part-time while maintaining full-time legal or judicial work. Langdell elevated law to a post-graduate level of study and increased the length of study to three years. He introduced entrance exams, graduation exams, rigorous coursework, and the case method.

Langdell’s case method was considered novel because it replaced textbooks with appellate cases ‘arranged to illustrate the meaning and development of principles of law’.

In addition to the case method, Langdell incorporated Socratic dialogue into classroom discussion.

When the three-year curriculum requirement took effect in 1876, enrolment steadily plummeted from 199 students to a low of 138 in 1882. While this troubled Langdell, and drew much criticism, by 1883 enrolment increased, the faculty expanded, and the new legal education culture finally took hold.

The ABA was founded by 100 lawyers from 21 different states on August 21, 1878. At the very onset, in 1878, the ABA directed the newly formed Committee on Legal Education and Admission to the Bar to prepare a plan for establishing uniform requirements. Three years later, the Committee on Legal Education presented three proposed resolutions: (1) implementation of a thorough three-year course of study in all law schools, (2) admission to the bar after having passed an oral and a written examination and receipt of a diploma, (3) authorisation that time spent in law school is equal to time spent in an attorney’s office. All three resolutions were adopted in 1881.

By 1916, the ABA had adopted standard rules for admission to the bar, and educational standards for law schools.

As a result of the ABA’s push for a more uniform legal education requirement, by the end of the 1930s nearly every American law school had adopted the ABA standards.

In the early part of the twentieth century, law schools attempted to address students’ lack of preparation for lawyering by introducing clinical education. Law students at several schools established volunteer, non-credit ‘legal dispensaries’ or legal aid bureaus to provide hands-on opportunities to learn and practice lawyering skills and legal analysis.

In the post-Watergate years, an increased demand for law schools to add legal ethics to the curriculum was realised. The ABA responded by requiring that all law students take a course in professional responsibility.

In 1979, the ABA commissioned Roger Cramton to conduct a study on the state of legal education. The results of the Cramton Report concluded that, at best, legal education was providing students a two-year program with a fairly useless third year.

In the late 1980s, the ABA formed another task force to address concerns with the state of the legal education system. Studies were conducted, and in 1992 the MacCrate Report was published. Much talk followed about implementing the changes recommended by the report, but in the following years, schools reverted to the status quo with very little movement toward reform. In February 2007, the Carnegie Foundation for the Advancement of Teaching issued a report entitled ‘Educating Lawyers’.

The history of the legal education system shows that in spite of criticism and attempts at reform, the system remains similar to that of the late 1800s.

The current legal education system does not focus on effective teaching for the adult learner, does not require curriculum aimed at teaching the basic skills necessary to practice the law, and does not communicate the importance of balancing life with the stresses of a legal career.

The case method of teaching is a one-size-fits-all approach that critics argue is ineffective. Although the method helps prepare students to meet some of the challenges of the legal profession, it only provides a fraction of what is required for graduates to be competent lawyers.

The Socratic method breeds stress through the arbitrary and sometimes ruthless questioning of students about cases and legal principals that are often subtle, minor, and obscure.

Adding to the pressure of classroom culture, the traditional law school model does not provide regular or relevant performance feedback, so students have little opportunity to improve. Prior to law school, many students had outstanding scholastic records and developed a belief system that equates self-worth with achievement. A significant number of law students lose self-confidence and their motivation to learn.

A major obstacle to innovation is a failure to take into account students’ individualised learning styles and capacities. The personal preferences of professors often drive curriculum design. Skills or clinical courses are viewed as an expensive drain on law school budgets as compared to traditional lecture-based courses.

The majority of law schools require students to take a separate first year course in legal research and writing. In most schools these courses are not taught by traditional tenure-track faculty, but by ‘instructors who specialise in teaching legal research and writing’.

The current curriculum does not train students to view the practice of law as both a profession and a business. While law firms and law schools agree that some skills must be learned on the job, competent lawyers — especially those in small firms or solo practice — would benefit from a curriculum that included the fundamentals of how to run a business.

Legal education’s assessment systems are as outdated as the standard curriculum, and are neither effective nor appropriate.

Law school assessment is infrequent, consisting of only one or two exams per semester, which does not provide an adequate opportunity for improvement throughout the duration of a course.

Clinical professors see students at the bottom of their class flourish in clinical settings that allow them to demonstrate communication or persuasion skills.

Multiple-choice exams provide little to no opportunity for students to display what they actually know about a particular topic.

The legal academic community places a higher value on research than on teaching. The publish-or-perish mentality diminishes quality of teaching and offers greater reward and recognition for scholarship than for teaching-related accomplishments.

Because law school professors have limited knowledge of learning theory, they teach without regard to the effectiveness of the method. Without an understanding of why and how students learn, they are unable to help students perform and learn effectively. Traditional scholars, however, resist sacrificing theoretical instruction to practical training because they believe that the practical aspects of legal practice should be left to clerkships and opportunities outside of law school.

In spite of its benefits, the tenure system does not encourage change because it offers professional security, regardless of whether change is overdue or implemented. Many skeptics question the benefits of tenure to students in a system where tenured professors are often viewed as untouchables with unquestioned job security.

The concern with integrating technology into the education setting is that it may interfere with teaching rather than enhance it. The use of PowerPoint slides and laptops within the traditional classroom could hinder interactions between students and teacher and may create a passive-learning environment.

As students and professors become increasingly technically sophisticated, distance learning is a more viable option for legal education. Schools remain resistant to the idea of distance learning, however, because of a fear that students will not learn effectively or that it could take longer to develop a distance learning class than a traditional one.

A legal education should be affordable for anyone qualified to be a lawyer. Law school tuition rates increase at about eight per cent per year, more than twice the general inflation rate.

The students who take government or other public interest placements make an average of $35,000 per year. When that income is compared to $85,000 in debt, the financial impact is substantial.

Shortly after the ABA began to regulate legal education and bar acceptance, a number of studies were initiated to analyse the legal education system. The studies examined the effectiveness of legal training, determined lawyers’ preparedness for legal practice upon graduation from law school, and identified where lawyers were actually receiving much of their training.

On February 7, 1913, the Committee on Legal Education requested that the Carnegie Foundation for the Advancement of Teaching review legal education in the United States. In 1921, the foundation funded a study called the Reed Report, which identified three components necessary to prepare students for the practice of law: general education, theoretical knowledge of the law, and practical skills training. To satisfy the requirement of a general education component, the Reed Report called for at least two years of pre-law college training — a proposal the ABA promoted beginning in 1921. This recommendation was widely implemented, and by 1936, 32 states required at least two years of college education before being admitted to law school. Reed’s recommendation regarding practical skills training was not vigorously pursued.

In 1979, the ABA commissioned a committee to examine the status of legal education and provide recommendations for change. Known as the Cramton Report, this report recognised that diversity and experimentation, as opposed to mandated uniformity, offer the most likely path to more effective law school education.

For instance, schools should work toward shaping attitudes, values, and work habits critical to a lawyer’s ability to translate knowledge and relevant skills into adequate professional experience.

Dissatisfied with law schools’ preparation of graduates for the actual practice of law, in 1989, the ABA established a task force to examine a perceived gap between legal education and law practice. The task force, led by Robert MacCrate, published the MacCrate Report in 1992. The report found that while law schools appeared to be committed to practice skills instruction, they needed to affirm their commitment to train students to practice effectively.

Three Surveys: Zemans and Rosenblum, 1975–1976; Garth and Martin, 1991–1992; Minnesota Survey, 1997–1998 and 1999–2000. The three surveys studied 17 skills areas.

Generally, the law school curriculum was credited as a significant source of training in eight of the 17 legal practice skills. Respondents believed that non-law school sources were a significant source of their training for all legal practice areas, even though most believed that law schools were capable of teaching all 17 skills.

In addition to analysing essential lawyering skills, the Minnesota survey addressed the importance of management skills and measured how prepared lawyers felt in those skills upon graduation.

In 2003, David A. Binder and Paul Bergman conducted research and advocated a new approach to law school clinics. Findings showed that ‘60 per cent of these lawyers reported that they received no practice or rehearsal training before taking their first deposition’. Binder and Bergman suggest that when students have increased opportunity to practice those necessary lawyering skills in a systematic way and in different contexts, with frequent feedback and the recurring prospect for self-assessment, they will be better prepared for practice.

Sheldon and Krieger’s research emphasises that skills training courses have a positive influence on the individual’s ability as a lawyer, including competence, dealing with stress, and personal well-being.

The Carnegie Foundation for the Advancement of Teaching examined the way law schools develop legal understanding and professional identity in its February 2007 report entitled Educating Lawyers. The report made five key observations of legal education in the United States and Canada. First, law school provides rapid socialisation in the standards of legal thinking. Second, law schools rely heavily on one way of teaching to accomplish the socialisation process, primarily through the case-dialogue method. Third, the case-dialogue method of teaching has valuable strengths but also unintended consequences. Fourth, the assessment of student learning remains underdeveloped. Fifth, legal education approaches improvement incrementally, not comprehensively.

Additionally, Educating Lawyers discusses seven recommendations. Law schools should: (1) offer an integrated three-part curriculum: teaching of legal doctrine and analysis, introduction to the several facets of practice, and exploration and assumption of the identity consonant with the fundamental purposes of the legal profession; (2) join lawyering professionalism and legal analysis from the start; (3) make better use of the second and third years of law school; (4) support faculty to work across the curriculum; (5) design the program so that students and faculty weave together disparate kinds of knowledge and skill; (6) recognise a common purpose; and (7) work together within and across institutions.

It is important for professional education programs to acknowledge and accommodate multiple learning styles. A system catering to one type of learner can limit a profession by allowing only a small percentage of students who happen to excel best under the predominant learning method to enter the job market successfully.

Traditional law school instruction focuses almost exclusively on the lecture-based method of teaching and a timed-essay format of testing. Only a small segment of students are able to achieve high academic success within this system. Often discouraged from entering the profession is a segment of students who may be better suited to certain aspects of lawyering, such as client interaction, trial advocacy, mediation, and negotiation, skills that remain untapped and academically unrecognised at many law schools.

Learner-centred education focuses on the pre-existing knowledge, skills, beliefs, and experiences students bring to the classroom. Teachers in learner-centred environments engage students to discover their pre-existing knowledge and use that information to initiate discussions of the students’ differences in the context of education.

Knowledge-centred classrooms emphasise the importance of establishing a baseline of knowledge before moving on to complex problem solving. The teacher must ascertain what the students do and do not know before the teacher can determine what must be taught. Law professors must strike a balance among requiring students to learn information, understand theory, and apply general concepts to real-life problems.

Assessment-centred environments continuously provide opportunities for students to identify what they do and do not know and opportunities to achieve greater understanding. Teachers in assessment-centred classrooms provide feedback throughout the course, particularly at the conclusion of each concept.

An optimal learning environment must be learner-centred, knowledge-centred, and assessment-centred. The combination will differ based on the course material, the professor, and the students. No single method works for everyone and no single combination works for all classrooms. Traditional law classes benefit students who prefer lectures and individual assignments rather than those who achieve best through active class involvement and cooperative learning. To address the learning needs of a full spectrum of learning styles, a professor should make use of sketches, plots, schematics, diagrams, and physical demonstrations for visual learners, as well as oral explanations of readings and collaborative dialogue for verbal learners. A law school professor can create opportunities for active student participation that will benefit students who learn best by trial-and-error or working with others. A professor may offer a mixture of sequential steps for learners who prefer linear, orderly learning, in small, incremental steps and global lesson plans for students who are ‘holistic’ and ‘learn in large leaps’. The goal of a revitalised legal education system is not to replace traditional teaching practices, but to augment the existing system with a combination of teaching techniques, which meets the needs of a broader segment of students.

In a respectful environment, teachers and students ‘participate in a dialogue, explore ideas, and solve problems creatively’. Students must be willing to confront challenging tasks with no intimidation or humiliation, which may cause withdrawal from participation and learning.

A cooperative learning environment can improve student participation, preparation for class, and skill development. Successful educators agree that high expectations for all students, perhaps higher than they would credit themselves with being able to achieve, can have a dramatic impact on their performance. Teachers also need to clearly communicate their expectations to the students, and when possible, demonstrate their expectations through concrete examples of past student work they find exemplary.

‘Elements of a supportive environment include teachers’ attitudes, student-faculty contact, and role-model and mentor relationships’. A supportive environment enhances students’ learning, willingness to take risks, and their openness to offering and considering a variety of perspectives.

Simulations, externships, and live-client clinics add value to a student’s learning experience and, although it may be educationally and economically difficult, these teaching techniques should be incorporated into the law school curriculum.

Reflective teaching and learning are essential to education. To be effective and grow as a teacher or student, an individual must reflect on the experience.

Kolb describes a four phase learning cycle which includes: first, experience that involves learning by doing and being involved; second, reflective observation and thinking about the experience while analysing the new information and making sense of it; third, coming to a conclusion, new idea, or concept based on the first two phases; and fourth, application of the new experience, information, and concepts in fresh situations, which results in active experimentation.

The learning cycle suggests that even advanced practice-based forms of teaching and learning are not in themselves sufficient. Merely doing something is not enough, reflecting on the doing and testing out the reflection must follow for learning to be effective. Reflection can be in the form of a log, diary, portfolio, journal, or even a video diary.

Reflective practitioners are adult learners who engage in a professional activity, and reflect on their strengths, weaknesses, and areas for development. Students also should be encouraged to use situations, tutorials, or placements to reflect on what they have learned.

Learning theorists agree that adult students need specific feedback in order to stay motivated. Too often law schools use negative reinforcement that is useful only in changing bad behaviour rather than providing positive reinforcement.

Professors can require students to write short, ungraded essays throughout the semester, initiate group and class discussion regarding assigned problems, require peer review of student work, or collect journals or self-critiques such as those mentioned above. In order to be most useful to the student, feedback must be given in a timely fashion. Feedback delivered too early can be confusing and feedback given too late can slow a learner’s motivation.

Electronic or virtual textbooks are portable, take little space for multiple volumes and give instant accessibility and enhanced search ability. This format could break down barriers for some readers accustomed to computer screen format.

Laptop-friendly classrooms and wireless law school campuses are now an expectation. Following this trend, law schools could eventually be transformed into a dual physical-and-virtual environment where hundreds of students view lectures and multimedia presentations over the Internet at their own pace and in time increments that are conducive to a variety of lifestyles. Virtual classes will not replace on-campus learning, but can be used to supplement classes taught in a more traditional format.

Some video classrooms extend beyond video conferencing into actual digital communities where participants can cooperate, share, and learn across any distance. Teachers on a digital network engage students in activities that allow them to interact with classmates at different sites and partner with other participants to practice new skills.

The Center for Computer-Assisted Legal Instruction (CALI) is a non-profit consortium of law schools that provides legal education resources over the Internet. CALI started a legal education technology project that helps instructors record their lectures digitally and post them on the Internet so that students can review their notes or catch up on missed classes electronically. Podcasts allow students to download lectures as MP3 files, making iPods a popular education tool.

Video games allow players to step into new personas and explore alternatives so they can try to solve problems they have not mastered, receive immediate feedback on the consequences, and try again. The ability to explore immediately makes games more engaging than textbooks or lectures because it allows students to perform before reaching a level of competency. Since games keep things ‘pleasantly frustrating,’ players are motivated to improve their performance.

Blind Justice is a board game which uses actual cases. Players acting as a lawyer or juror draw cards and, based on the directions, must convince the other players to find in their favor. Verdict II is a board game ‘designed to teach eight basic grounds on which a witness statement might be inadmissible’.

There are also a series of Objection games that simulate a trial, where the player responds to various evidentiary objections by the opposing attorney. In the game In the First Degree, the player assumes the role of a prosecutor who interviews witnesses and decides which evidence to present.

Critics of simulated teaching tools point to some disadvantages. For instance, simulations incorporate hidden assumptions that may not entirely reflect reality and student players realise that the exercise is not authentic. Additional critiques include cost, the logical path computer programs must follow, and possible detraction from social interaction and social skill building.

For more than 20 years students at William Mitchell College of Law in St. Paul, Minnesota, have had the opportunity to take part in a complex simulation-based course called Legal Practicum.

Students taking Legal Practicum practice law in two-person law firms under faculty supervision. Simulated cases, problems, and clients are presented to each law firm during the semester. Student lawyers must handle a variety of integrated substantive and procedural law exercises in numerous areas. Each student law firm is involved in proceedings that include a jury trial, oral arguments, motion arguments, mediation, arbitration, negotiations, and settlement conferences. Students interview clients, investigate facts, conduct depositions, prepare pleadings and motions, draft documents, and prepare research memos and briefs.

Legal Practicum has undergone a thorough bi-annual evaluation process since its inception in the mid-1980s. Student evaluations demonstrate the course’s effectiveness.