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Saturday, May 01, 2010

Legal Education v. Medical Education

It must be curricular-reform day at Prawfs, as Jeff kicks off with a discussion of Stanford's new model. But the never-ending conversation over how to improve legal education never ends. Reformist eyes often turn to the medical school model of two years of classroom learning, two years of entirely clinical learning (with little or no classroom component), and an apprenticeship of internship/residency. The comparison came up last summer during Jeff's last visit here, when he told the story of his son's first days in medical school.

The med-school model was heralded by a number of practicing lawyers and judges at a recent program at Arizona State's Sandra Day O'Connor College of Law, where several argued that

"law schools should emulate medical schools and transform the third year into clinical rotations, so that students know the nuts and bolts of being a lawyer by the time they graduate. Such changes are needed, they said, at a time when law firms are hiring fewer lawyers, and clients are less willing to pay for young associates to gain on-the-job training with their cases."

Maybe, maybe not. After the jump is a lengthy response to this idea, posted to a listserv, from Alan Jay Weisbard, now retired as a joint-appointed law and medical professor at University of Wisconsin and before that at Cardozo Law School and Albert Einstein College of Medicine. (H/T: My FIU colleague Manuel Gomez). His point is that the med-school model is not the be-all, end-all and simple wholesale importation of the clinical model will not work. I do not have much to add, other than that a doctor friend had previously told me that the non-clinical med-school years largely involved memorization, that students often did not bother going to class, and that there was less intellectual engagement or critical thinking than in law school (his wife is a law prof, so he has seen both sides). I see the value in somewhat-enhanced clinical/externship opportunities. I am less sure about a year of medical "rotations."

Anyway, Prof Weisbard's comments:

As one now retired from a joint appointment in law and medical schools (teaching courses and course segments on bioethics and law to medical students, as well as more conventional courses for law students), and who has served on curriculum committees and task forces in both venues, I fear the approach outlined below reflects a naive and ill-informed view of the education of medical students and of the current ferment in medical curricula and teaching approaches.

As a preface, I find the teaching of law students far more pedagogically effective, and more personally satisfying, than the teaching that occurs in the pre-clinical years at med schools. The focus on rote memorization, and the avoidance of much real engagement with critical thinking skills, in the pre-clinical medical curriculum, terrifies me. Fellow med school teachers typically read off power point slides to their largely sleeping (and ill-attended) classes, and exams are mostly multiple choice, focused on short-term recall of the slides. My efforts to introduce more interactive learning, including some use of socratic style, enlivened some students but met a good deal of resistance from many others, including those who declined to attend class and relied on the semi-official course notes taken by a fellow student and distributed to the entire class. I recognize this is not the main point discussed below, but I think it is a point worth emphasizing in the context of fairly ill-informed cross-professional comparisons.

More to the point of the comparison: the transition from the medical school classroom to independent professional practice is seen and understood as a multi-year progression, encompassing third year and fourth year rotations and an extended period of internship (now typically part of residency) and residency. No one expects a new medical school graduate to have a full set of skills; that is what residency is for. Residents learn on their patients. To put it very mildly, errors are known to happen in the process. Residents, while better paid now than was once the case, are understood to be learning in an apprenticeship model that continues in a clinical setting over an extended period, under continuing academic-type supervision of varying intensity and quality.

A major feature of contemporary discussion concerning medical curriculum after the pre-clinical years is the need to reintroduce a greater degree of academic focus, bringing students back from their clinical duties for advanced classes and a better opportunity to reflect on their clinical experiences in connection with their academic  learning. The trick is getting the right mix and solving the logistical challenges of combining these activities, which often take place in different sites.

I think legal education can learn from medical experience, but to do so effectively, we need a more accurate grasp of the successes and shortcomings of the medical model, a more nuanced approach to the distinctive characters of legal and medical education, and an appreciation of the different institutional and economic foundations of medical and legal practice. The task of spelling all of that out goes beyond what I can aspire to do here, but let me sketch out a couple of thoughts.

The suggestion that we simply replace the third year of law school with a series of clinical rotations in practice settings seems far too simplistic to me. I am not inclined to offer much of a defense of three years of uninterrupted traditional-style classroom experiences as the sole means of training for future lawyers. Of course, that is not really an accurate description of what we do now. We provide classes on research and writing, opportunities for professionally relevant extracurricular activities (moot courts, law reviews, etc.),  a plethora of clinics, occasionally reaching even into the first year,  and various opportunities for for-credit externships. (An increasing number of medical schools are breaching the pre-clinical/clinical divide, providing supervised patient contact from the first year.) And, of course,  law students work, typically in professional settings, during summers and, in many cases, in term-time jobs. Much of this is, of course, a very ad hoc process, which can differ appreciably from student to student. I'm not sure many law schools think about this jumble of activities in any systematic or coherent way; this may be one respect in which medical schools have a more coherent and thought through, and more nearly uniform, approach, that law schools might well consider (although obstacles to far-reaching changes here would be formidable). In addition, curricular thinking in medical schools increasingly focuses on better integration of clinical and academic experiences; this would seem to me to counsel against a series of off-campus legal rotations not somehow moored to an academic setting and advanced classroom work taking advantage of students' clinical experience.

The notion that judges and law firms find recent law graduates unprepared for entry-level positions should not be surprising when measured against the medical situation. To begin, residency directors may well gossip about the relative inadequacy of recent medical graduates (who have completed two, not one, years of clinical rotations) much as legal employers do. Substituting one year of legal rotations in place of the usual mix of third year law school activities will have a mix of plusses and minuses, but is unlikely to result in fully formed independent legal professionals. More significantly, residency programs, while providing important medical services to patients, understand that they are primarily training programs (economic pressures may well be changing this, but that is the stated objective), part of the apprenticeship process. That was, I believe, once part of the understanding of the initial post-graduate years for newly minted law graduates, particularly in well-paying large firms and at least some public and judicial employers. Economic changes  and job mobility (whether or not voluntary) have made a botch of this, and we have not yet adequately reflected on the implications of these changes. Should it really be a surprise, or a reasonable critique of law school education, that big firms cannot make a current profit (in bad economic times) on young associates earning, or at least being paid, $160,000 in their initial year? Would we expect hospitals to make a profit on beginning residents being paid at that level? Who are you kidding? What comparison is being offered here?

My own inclination is that we move the conversation in a different direction, seeking not an off-the-shelf model from another profession to adopt willy nilly, but engaging with more searching examinations of what law schools should be doing, and are capable of doing well, while regarding the early years in legal practice as part of an extended apprenticeship period, focusing on the comparative advantages that employers enjoy in the overall training of inexperienced lawyers. At risk of some oversimplification, I would venture that law schools have the advantage, inter alia,  in raising fundamental questions, providing broad understanding of the legal system and fundamental fields of law, enhancing critical thinking skills, beginning to appreciate the institutional setting in which law operates. Law schools at their best  prepare students for a career in law, not for the first year of practice. Those early years out must be a continued time of learning and understood as such. In a rational world, economics should adjust, and law schools and employers might do well to consider together whether there are practical ways of making that happen (which must also recognize the debt burden associated with contemporary legal education). Public service internships on a large scale might have a useful role to play here, as judicial clerkships for the most talented graduates already do.

To be sure, there are law schools and law schools, law students and law students. Treating the situation as if it were a homogeneous mass, as we perhaps too often do, would be a mistake here, as it is in a number of other contexts. But I will leave that problem for another day.

Posted by Howard Wasserman on May 1, 2010 at 10:20 AM in Howard Wasserman, Teaching Law | Permalink


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