Legal Education Digest
C D Cunningham and C Alexander
Georgia State University College of Law Legal Studies Research Paper
No. 2011-07, 2011, pp 1-26
On June 29, 2006, the United States Supreme Court issued one of its most important decisions of the past decade in the case of Hamdan v Rumsfeld, holding that detainees at the Guantanamo Bay military prison were entitled to the protections of the Geneva Conventions. That case would never have reached the Supreme Court but for the exemplary professional judgement exercised by Lieutenant Commander Charles Swift, the military lawyer assigned to Hamdan at the prison at Guantanamo Bay, who defied the terms of his appointment, which was limited for the purpose of negotiating a guilty plea.
A year later, in 2007, the highly regarded Carnegie Foundation for the Advancement of Teaching issued a book-length report on American legal education, Educating Lawyers: Preparation for the Profession of Law (hereinafter ‘the Report’). The central message of the Report is that law schools should, and can, do much more to produce lawyers who will exercise the type of professional judgement exemplified by Charles Swift: who readily identified a moral dilemma that implicated his professional ethics, reasoned through conflicting values to choose a course of action, committed himself to that action as ‘the ethical way to do my job’ despite risk to his career, and then effectively implemented the decision.
There have been a number of critiques of American legal education that both laid a foundation for the Carnegie Report and foreshadowed many of its conclusions, but all were from within the legal academy or the profession; the Carnegie Report in contrast offers an independent, outside perspective. One of the co-authors is a distinguished legal educator, but the other four come from other disciplines. Their methodology was to focus on how teaching and learning really happens through classroom observations and interviews with teachers and students at 16 law schools.
The Foundation’s extensive comparative study of various professions leads the authors of the Report to an understanding of ‘professional practice as judgement in action’.
Research in the social sciences has helped identify the components that comprise professional judgement and demonstrates that it is possible to promote the development of such judgement through university-based professional education.
By focusing on the development of professional judgement, the Report is able to insist that knowledge, skill and ethics – and the teaching of them – are inseparable.
The Carnegie Report’s focus on the development of professional judgement draws on insights from the field of moral psychology into how students learn and schools teach ethical decision-making. These insights, which have been applied in other professional schools, provide a useful framework for understanding the development of professional judgement and assessing law schools’ innovations in response to the Carnegie Report.
Moral psychology’s inquiry into ethical and moral decision-making began with Lawrence Kohlberg’s hypothesis that there are stages of moral judgement development over the course of an individual’s life span. Subsequently, James Rest built on Kohlberg’s work in several important ways. First, he created an easily administered assessment instrument, the Defining Issues Test (DIT), that presents ethical dilemmas and then measures the proportion of times an individual selects arguments to resolve the dilemma that appeal to each of three conceptually different moral frameworks.
The Carnegie Report’s call for development of law students’ professional judgement echoes Rest’s first three capacities for moral action: ‘Law school graduates ... need the capacity to recognise the ethical questions their cases raise, even when those questions are obscured by other issues and therefore not particularly salient (Rest’s first capacity). They need wise judgement when values conflict (Rest’s second capacity), as well as the integrity to keep self-interest from clouding their judgement (Rest’s third capacity)’.
Dr Muriel Bebeau, a colleague of Rest, has developed a number of practical applications of Rest’s Four Component Model for professional education. In fact, we have found that becoming familiar with Bebeau’s work has greatly enhanced our understanding of both the critiques and the recommendations found in the Report.
Bebeau’s work indicates that a well designed curriculum can promote each of the four capacities in ways that are connected to professional behaviour.
Bebeau’s work confirms that the capacity to identify issues that require professional judgement requires much more than just a mastery of professional conduct rules (although such knowledge is of course necessary). Equally critical is the ability to engage imaginatively as a situation unfolds, constructing various possible scenarios, often with limited cues and partial information, combined with the ability to foresee realistic cause-consequence chains of events.
There is ample evidence that professionals are sometimes aware of the ethical implications of a situation, yet either fail to act or act in ways inconsistent with that awareness – evidencing a deficiency in Rest’s third moral capacity – prioritising the ethical decision over other interests. Research in moral psychology suggests that for professionals the key to the development of this third capacity is identity formation. Deliberate teaching about professional norms is required, combined with examples of exemplary professionals and a system to promote student self-reflection about their own professional identity formation over the course of their education.
Although the ability to identify ethical issues (the first capacity), to reason to the contextually appropriate decision in the face of conflicting values (the second capacity), and to internalise professional identity to motivate moral commitment (the third capacity), are all necessary to the exercise of professional judgement, actual and effective implementation, the fourth capacity, is also required. Bebeau points out that the professional cannot stop with ‘what is happening’ (the first capacity) and ‘what ought to be done’ (the second capacity), but must always consider questions such as ‘what should I say’ and ‘how should I say it’? Therefore, the teaching strategies developed by Bebeau for addressing the fourth capacity, implementation, require students to develop action plans and even specific dialogue for resolving tough problems.
The unscripted reflections in the National Public Radio interview of Lt Commander Charles Swift on his representation of Hamdan illustrate vividly the interconnected dynamics of Rest’s four capacities of ethical sensitivity, moral reasoning, professional identity, and effective implementation.
Swift could have followed orders, ignoring the insights of his ethical sensitivity and moral reasoning, or could have declined to represent Hamdan at all, passing the dilemma on to the next military lawyer assigned to Hamdan. But instead, Swift’s internalised professional identity powerfully motivated him to act on the results of his moral reasoning.
Before the Carnegie Report, the typical approach to ethics and professionalism by American law schools was to require students to take a single course on ‘professional responsibility’ that covered the American Bar Association’s Model Rules of Professional Conduct.
Although courses on the law of lawyering might seem adequate to teach the students’ sensitivity to ethical issues (the first capacity for moral action in Rest’s model), the Report echoes Bebeau’s view that ethical sensitivity cannot be effectively taught using only ‘pre-interpreted’ factual scenarios such as presented in decided cases.
The Report raises an even more serious concern that the ‘law of lawyering’ approach may actually be counterproductive to the formation of the capacity for ethical sensitivity required for professional judgement.
The conventional ‘law of lawyering’ course also failed to engage with the second capacity, moral reasoning. The Report cites several studies showing that students who completed a traditional ethics course did not show significantly more sophisticated moral reasoning, as measured by DIT scores, at the end of the course than at the beginning. The most thorough of these studies, however, indicates that a law school course built around small group discussions of realistic ethical dilemmas that cannot be resolved by legalistic application of the Model Rules can produce very significant increases in DIT scores.
The Report concludes its critique of American law schools’ traditional Model Rules-based ethics courses with a focus on the third and fourth capacities required for moral action: formation of professional identity and competence to implement a moral decision.
Unfortunately, the conventional legal ethics course, by focusing on whether conduct could result in discipline or civil liability, unintentionally appeals primarily to narrow self- interest – the desire to avoid punishment – rather than encourage development of a mature professional identity in which lawyers feel they must act consistently with sound professional judgement because their professional and personal identities have become intertwined.
According to the Report, to build the fourth capacity, teaching and assessment must instead ‘take place in role rather than in the more detached mode that the law-of-lawyering courses typically foster’.
In December 2007, nine months after publication of the Carnegie Report, ‘[b]elieving that this is a critical moment for the future of legal education’, deans and faculty representatives from 10 American law schools gathered in Palo Alto, California, for a meeting convened by the lead author of the Report, William Sullivan, and Associate Dean Lawrence Marshall of Stanford Law School. Out of that meeting three working groups were formed. Eighteen months later, in March 2009, this consortium of law schools – now named the Legal Education Analysis and Reform Network (LEARN) – announced a detailed program of action intended to ‘maintain and enhance the momentum for law schools across the country’ to create a ‘wider array of learning environments’ including simulations and clinical work and to further integrate the teaching of substantive knowledge, legal skills, and professional values.
At the time of the LEARN meeting, Stanford, under the leadership of Dean Larry Kramer, was in the midst of a major reshaping of its upper level curriculum with a strong focus on expanding and deepening clinical teaching.
Stanford has not only added two new clinics and created a dean-level position for ‘Public Interest and Clinical Education,’ but has developed a ‘clinical rotation’ where students take only a clinic during a particular term – with no competing exams or classes.
It is significant that Stanford has chosen to justify its new clinical rotation as modelling medical education in providing a more ‘intensive’ experience that provides ‘a better professional ethics component’ than what is currently offered by most American law schools.
Well-taught, intensive clinical experiences are designed not only to promote the third ethical capacity of Rest’s model – moral commitment – in ways and to a degree not found elsewhere in the law school curriculum, but, as pointed out by the Report, they can also develop the critical fourth capacity – moral implementation.
The effectiveness of traditional law school clinics has been questioned, though, as to the development of ethical sensitivity.
Stanford’s new clinic initiative offers an unusual solution to this critique by offering a parallel course on ethics and professional responsibility exclusively for students enrolled in nine of the law school’s clinics. These students act as the clinics’ collective ethics committee, much in the same way that many law firms have an ethics committee to resolve issues referred by members of the firm. Each week, the course’s teacher, Associate Dean Lawrence Marshall, who is also the co-convenor of the LEARN consortium, presents a real ethical issue that has arisen in the clinics.
Because Marshall draws on a pool of nine clinics for real-life ethical dilemmas, and because he has prepared a set of policy issues as fall-backs, the course exposes students to a broad range of ethical questions, not limited by the haphazard nature of clinical practice, and provides structured guidance for students as they reason to a moral conclusion.
At the November 2007 meeting that founded the LEARN Consortium, the law school at Indiana University (Bloomington) announced that effective in the 2008-2009 academic year it would move the required legal ethics course into the core first year curriculum with the same four credit hours as such venerable subjects as Torts, Contracts and Property. The Carnegie Report’s critique of conventional teaching of legal ethics was explicitly cited as a justification for this innovation.
Building on Indiana’s strong tradition in social science approaches to the study of law, the course begins with an accurate, systematic, and factually rich introduction to the structure and substance of the modern legal profession’. Distinctive to this overview of the legal profession is careful analysis of a variety of specific practice settings – eg, family law, criminal defence, personal injury, large law firm, in-house counsel, prosecution, public interest – using carefully edited ethnographies, with an exploration of ‘the ethical problems that can predominate’ in each form of practice’.
Each student is assigned to a ‘Practice Group’, a unit of six or seven students who are assigned to several group projects during the course of the semester which culminate in formal presentations to the entire class.
The first project requires each group to distil from a series of readings up to three attributes of a successful young lawyer and to propose ways that those attributes could be acquired or fostered during law school. Each student is required to reflect critically about both the student’s own role within the group and the performance of other group members.
A variety of different topics is assigned for the second and third group projects. Common to all of the third group projects is the presentation of a detailed hypothetical problem which requires students to identify ethical issues and propose an appropriate course of action; all of these projects are ‘imbedded in a practice environment that students have just learned about’.
The final group project involves interviewing a practising lawyer and preparing a group report to the class on that lawyer’s professional development and experience in handling challenging problems of professional judgement. These interviews are then reinforced by ‘Practice Forums’ in which lawyers who represent the various practice areas studied in the course appear as guest speakers to the entire class.
In the academic year following the introduction of Indiana’s first year course, two other American law schools added required courses on the legal profession to their first year curriculum. The new law school at the University of California at Irvine – intended to be ‘the first top-tier American law school founded in more than 50 years’ – requires all first year students to take two credits of ‘Legal Profession’ in both the first and second semesters. This course, like the class at Indiana, not only teaches legal ethics but also provides instruction on the economics and sociology of the legal profession. The law school at the University of Minnesota has added a required course on ‘Practice and Professionalism’ to the second semester of the first year, but the course differs from both the courses at Indiana and Irvine in that it does not take the place of an upper-level required course in legal ethics and incorporates a number of simulation exercises.
Probably the most ambitious educational innovation that has been implemented in the United States since the publication of the Carnegie Report is taking place at a law school that is not a member of the LEARN consortium. In March 2008 the Washington and Lee University School of Law – more than 150 years old and ranked by US News & World Report among the top 30 law schools in the USA announced that it was ‘embarking on a dramatic revision of its law school curriculum, entirely reinventing the third year to make it a year of professional development through simulated and actual practice experiences’.
The new third year consists of two 12-week semesters consisting of 14 credit hours each. Each semester begins with a two-credit course that takes up the entire first two weeks, immersing students in practice-intensive training in both transactional and dispute resolution skills. The remaining 10 weeks of each semester consist of two five-credit experiential courses – practicums, clinics or externships – plus one credit for a professionalism program that extends over both semesters (for a total of two credits) and one credit for ‘law-related service’ such as working on student-edited law reviews, moot court, community service or pro bono representation.
Although students will have already taken a course in professional responsibility during their second year, the third year professionalism program (currently taught by Dean Smolla) continues to ‘develop ethical judgement in context and in action’ by presenting students ‘with simulated practice conundrums in which ethical judgement must be exercised in simulated, real-world environments.
In the announcement of the new program, Washington & Lee insisted that any course subject typically taken in the third year of a traditional law school curriculum can be offered ‘through a practicum course with no fall off in breadth of coverage or intellectual depth or rigor’. And indeed 19 of the practicums listed in the catalogue appear to correspond with traditional subject matter topics.
Nonetheless, the school appears to be making a serious effort to teach both practical skills and professional judgement while also providing subject matter coverage. The advanced family law practicum, for example, is described as involving seven different simulated lawyering activities and thus in the process ‘emphasises the art of lawyering ... and explore[s] the roles and relationships between attorneys and clients – and between attorneys, senior partners, judges, and opposing counsel’.
By embedding ethical issues in realistic and complex fact patterns, set in a variety of subject-matter courses, these practicums offer great potential for developing sophisticated ethical sensitivity, described by Bebeau as ‘the ability to engage imaginatively as a situation unfolds, constructing various possible scenarios, often with limited cues and partial information, combined with the ability to foresee realistic cause-consequence chains of events’.
Enthusiasm for the new program among current students is high. The innovation also apparently appeals to prospective students. Applications to the law school are up by 33 per cent, a ‘remarkable’ increase that Dean Smolla attributes entirely to the new third-year curriculum.
The Carnegie Report powerfully makes the case that Llewellyn’s promise to develop the judgement that Brandeis considered to be ‘the whole training of the lawyer’ has not been fulfilled in contemporary American legal education. But the serious reception the Report has received among legal educators, and the concrete innovations already taking place in response to its critique, give hope that the vision of Brandeis and the promise of Llewellyn may both begin to be more fully realised as the 21st century enters its second decade.