Kleefeld, J C --- "Rethinking 'Like a Lawyer': An Incrementalist's Proposal for First-year Curriculum Reform" [2004] LegEdDig 6; (2004) 12(3) Legal Education Digest 8
Rethinking ‘Like a Lawyer’: An Incrementalist’s Proposal for First-year Curriculum Reform
[2004] LegEdDig 6; (2004) 12(3) Legal Education Digest 8
53 J Legal Educ 2, 2003, pp 254–266
Law education, like the common law itself, develops incrementally. Thus the notion that law’s rationality makes it amenable to scientific inquiry — the so-called Langdellian revolution in which law is seen as a science, the library its laboratory, case study its method — took some three quarters of a century to become the dominant form of legal pedagogy in Canada. But the dominant mode of teaching students how to ‘think like a lawyer’, particularly in the first year of law school, is still the study of common law doctrine and the manipulation of rules within those doctrines.
This is unsatisfactory for producing either first-rate practitioners or legal scholars. As our law schools enter the twenty-first century, as new conceptions of law and lawyering emerge, we need a first-year course that, in an integrated fashion, aims to instil a culture of professional competence and ethics while at the same time laying the foundation for reflective and critical thinking about law. The author does not subscribe to the dichotomous view that lawyerly and scholarly competencies are vying concepts; both are important, and the development of one influences and informs the development of the other.
Education for Canadian lawyers follows a fairly typical path. After completing a first degree in a discipline other than law and scoring well on the LSAT, a student completes three years of formal training in an accredited school. The law school curriculum is also fairly typical. The first year is taken up with year-long courses in core subjects — contracts, torts, property, criminal law — perhaps supplemented by ‘perspectives’, mini courses designed to impart a sense of some of the traditional or non-traditional viewpoints on law.
Students craving practical experience may, in some law schools, be able to get it as early as the first year. After the first year, the curriculum typically follows a cornerstone/capstone pattern. Cornerstone subjects, such as trusts, administrative law and corporate law, provide foundational knowledge, both for the specialist who wants to mine the field in depth and for the generalist who wants to survey it. Upper-year students can also apply to compete in moots that aim to integrate doctrinal learning with skills in written and oral advocacy.
As rich a repast as this is, it is less than completely filling. Yet it is often only later that the desire for more knowledge arises, along with the realisation that one’s learning, though acquired at an excellent school, was inexplicably deficient.
The key problem, identified by various educators, is that there is little or no systematic attempt to integrate practical, ethical, or philosophical perspectives into the curriculum. Thus the cornerstone/capstone metaphor is apt only if there is an overall architecture or design uniting the constituent parts of the pedagogical edifice. But a law school’s faculty — both its teachers and its students — are for the most part left to their own devices outside the core doctrinal requirements, which does not necessarily lead to a well-rounded program for professional or scholarly competence.
In many law schools there is little in the way of required curriculum after the first year, and while courses in professional responsibility and dispute resolution are now almost universally available, whether one elects to take them may be as much a function of the time they are offered and how full one’s schedule is with important courses. The problem is most acute in the second year, when students feel pressure to load up on subjects that they believe, often rightly, will appeal to prospective employers holding articling interviews between the second and third year. The dearth of systematic efforts to integrate doctrine, philosophy and practice is not the only thing wrong with law school education.
Legal educators are not unaware of the problems. Numerous and varied are the solutions they have put forth. One is strengthening the bar admission program and the articling experience. Much has been done in the bar admission area, especially in terms of building basic lawyering skills. That means, among other things, conducting a mock client interview; drafting a will and a contract and closing a house sale, all based on hypothetical fact patterns, and representing a plaintiff or a defendant in a simulated personal injury trial. Performance is assessed by experienced lawyer teachers, helping to set minimum practice standards. Another solution is to pick a theme, say dispute resolution, and incorporate it into first-year courses. A more sophisticated variation is to have a theme or culture pervading the curriculum, from first to third year.
The author’s proposal is less ambitious and more generic, suited, perhaps, to the law schools still in the process of rethinking or reforming themselves: that a first-year subject should be introduced which might be entitled The Concept and Practice of Law. Its content should fall under three broad subject categories: philosophy of law and jurisprudence; history and development of the justice system and the legal profession; and law practice.
For students with a philosophy degree or a liberal arts education with exposure to philosophy, that is no great shortfall. But students come to law with varied backgrounds and it behoves us to see that they all acquire some understanding of how law has been conceived by its most prominent theorists.
The second component or category of study is the history and development of the justice system and the legal profession. The historical approach is also important because one of a profession’s defining features is its claim to autonomy in matters involving its members’ expertise, a claim traditionally based on a mandate to provide services in the public interest.
The third component of the program, law practice, is unabashedly skills based. At some point most lawyers find themselves having to draft a contract, whether they want to or not. Why not learn something about it while studying the first-year course in contracts, when the requirements for contractual validity are fresh in mind? Other basic lawyering skills that cut across diverse practice areas are client counselling, fact gathering, and dispute resolution. These skills can and do form the subject of advanced study in their own rights for those who take them. However, what a first-year practice-oriented program component would aspire to achieve is an exposure to crucial skills and a taste for the advanced courses the student might want to take in the upper years.
We are still left with the problem of how to fit all this into the existing program. The kind of course envisaged is more resource intensive than usual, particularly in the law practice component. While not wanting to minimise the challenges in implementing it, they can be met in part through careful restructuring. If the will exists, law schools could begin to implement the general kind of course proposed here by realigning existing resources rather than requiring an infusion of new ones. In the long run, much further thought will have to be given to the basic model of delivering legal education, including consideration of whether a three-year program is really enough to provide the education and training needed to meet the increasing demands of the legal profession.
The intersecting aspects of the course components will provide a unifying theme: what is the meaning, scope and nature of the legal profession and how are these core elements to be reflected in practice? Emphasising such a theme could go a long way to minimising the risk of law students getting the worst of two worlds: not learning the practical requirements of legal work and not obtaining sufficient tools in jurisprudence or legal theory, in the ethical and historical traditions of the profession, or in any kind of deep conceptual analysis of law’s role in society. This incrementalist proposal represents the challenge for continuing to teach law students what it means to ‘think like a lawyer’.