The Emperor Has No Clothes, But Does Anyone Really Care?

As some know, I believe that one of the most of significant parts of both the Carnegie Institute for Teaching and Learning's Educating Lawyers and the Clinical Legal Education Association's Best Practices for Legal Education was that law schools do a poor job in cultivating our students to develop a sense of what it means to be a professional, in challenging students to consider their principles and how those will be tested in practice, and finally in reflectively deliberating on an ethical or professional question to reach a decision that reflects practical judgment.

I believe that these findings of two thorough studies of law education are worth heeding for many reasons.  The one that hits home the hardest is the manner in which these reports take empirical studies and their own investigations and link the degree to which a lawyer has developed an ethical compass with how likely they are to be fulfilled (or dysfunction and dissatisfied) in law practice.  For those who think ethics questions to be idealistic pie in the sky concerns, the reports' emphasis on how it affects the quality of a lawyers life and the effectiveness of her practice is worth reconsidering one's views.    For those who wonder how such a link could be drawn, think about it.  Most law students leave law school without much of an idea of how to resolve questions in practice.  The predominant method for many is the "path of least resistance"--do everything that one can argue helps one's client, so long as she won't get sanctioned.   Is it really surprising that research is finding that such lawyers, over time, develop internal dissonance (a fancy phrase for saying they begin not to lie who they are)?   The path of least resistance does not lead to fulfillment.  Knowing one's principles and at least trying to reflectively deliberate on questions and reach a judgment allow the lawyer to respect herself.  Further, the reports pointed how such lapses could explain many of the ills in the legal profession.  Many like to blame stress and the like for that, but what if the seeds of discontent are sown in the way we (don't) prepare students to deal with practic.   I don't know about others, but those questions raise serious concerns for me that lead me to believe it is worth a try to do a better job preparing our students to have a developed internal compass and a method for resolving questions.   

I read a recent ABA Survey and could see what I thought was a trend. We all know that doctrinal courses dominate the curriculum.  But the Survey showed the lawyering skills' courses are making a dent in the curriculum across the country.   The Survey was vague about the extent to which law schools were increasing meaningfully education designed to promote ethical development and professional judgment.  

In search of an indication of what law schools were doing in this area of professional formation, I turned to a review of every U.S. law school's published course offerings, on their respective websites, to gather data to see whether most law schools were indeed ignoring professional formation.   In an article that I have just submitted to journals, and which I have posted on the Social Science Research Network,, I report on the data gathered in my extensive review of law school course offerings.  Although I am sure there are more accurate ways of identifying exactly what law schools are doing, this effort allowed a glimpse on decisions law schools are making.   And that glimpse is not encouraging.  The choice seems to be clear.  Law schools across the country are adding lawyering skills courses.   Conversely, the offerings in professional formation (or even ethics courses, broadly defined) are more meager.

For schools that want to address cultivation of ethical principles and professional judgment, the article cited above gathers examples of curricular efforts of pioneers in this field to provide their students with the opportunity to go into practice prepared not just to know lawyering skills, but to have professional judgment.  The article provides specific teaching methods that would further the goal.   Time will tell whether law schools will realize that they have been ignoring an area that many of us believe is the most important thing we can offer our students.   We will do a great service if we help students acquire the ability to develop a sense of what their principles are, to reconcile those with professional values, and to learn reflective deliberation on ethical and professional questions.  Sure, students will not become experts at doing so in law school. But if we do not equip them with the foundations of maintaining their principles and making deliberate judgments, are they not more prone to take the path of least resistance?

No comments:

Post a Comment