Legal Ed's Futures: No. 4

How interesting for a symposium, and a virtual one at that, to be christened with calls to action.  But thanks to Mike Madison for encouraging us not just to expound, the usual focal point of symposia, but to act, for we in legal education should be ready for action.  There is much to be done.  I am reminded that here in North Carolina, our largest public university has adopted the mantra of “think and do,” a legacy of one of North Carolina State University’s most illustrious graduates, the former Governor James B. Hunt, Jr., known for his dedication to public education as the great equalizer.

With the guideposts of a call to action and a local educational focus on thinking and doing, I note that we as legal educators have spent much time recently thinking and expounding about our enterprise.  Indeed, the cottage industry that has arisen over the critique of legal education has spawned a robust debate over the focus and value of law school while contributing to a literature that need not be recited or repeated here.  Suffice it to say that the critics and supporters of what we do as legal educators are many and varied, bringing a passion to our work that informs the thinking about what we do, what we should do and how we should do it. 

This conversation of course is not limited to individual administrators, teachers, scholars and popular commentators (and even one President of the United States) but has attracted the attention and resources of the ABA (no fewer than 4 presidential activities devoted to legal education in less than a decade), AALS (at least one major study and public relations campaigns), LSAC (more frequent testing opportunities and greater data sharing), NCBE (participation in debates if not arguments over the causes of bar passage declines), and NALP (surveys to populate major studies on trends in employment).  As we undertake this virtual symposium some 150 years since the basics of our current system of legal education were implemented by Christopher Columbus Langdell, there is no shortage of expounding. 

 

What there may be, however, is a shortage of action, or at least action resulting in more fundamental change.  While even a quick perusal of viewbooks and websites and the dreaded “lawporn” that descends upon USN&WR voters each fall reveals much discussion of action masquerading as innovation in legal education, it is unclear that we collectively are undertaking little more than what Professor Madison might characterize as silos in action.  Much of that action refers to innovation through a new clinic or a new program that may offer a version of something new but does not really get to the fundamental aspects of teaching and learning and preparing students to practice.  The 1L year looks pretty much like it did when I started law school almost 40 years ago, let alone when my dad started law school almost 70 years ago or my grandfather almost 100 years ago.  Torts, Contracts, Civil Procedure and the rest taught in large sections with some legal writing thrown in remain the constant.  2L offers some opportunity for practical experiences with a few credits for clinical classes or moot court and 3L continues as an amalgam of electives while looking for a job.   

This aversion to serious action addressing the critiques of contemporary legal education that are bandied about is understandable if not lamentable.  For example, the dreaded bar exam, our profession’s barrier to membership, is stuck in the past with testing by and grading of antiquated essays and multiple choice questions rather than modern testing devices assessing capability to serve clients.  And isn’t that ultimately the rub?  Are we preparing lawyers capable of serving clients or are we educating for something else?   

This conundrum reflects the technological advancements of the information age over the past generation whereby legal information now is readily available to the masses, no longer limited to the confines of law libraries.  This trend means that law schools must do more than transfer “the law” from one generation of teachers to another generation of students aspiring to be lawyers.  Our task as legal educators now must be different, teaching use of the law, or what may be characterized as judgment.  Not all agree, of course, and so goes the conundrum, well described by Jerry Organ’s first post in this symposium.

Assuming that at least some of us adopt the perspective that our job as law teachers is changing due to this fundamental generational shift, then a call to action is apt.  But action to what?  Surely this action cannot mean doing more of the same, by just adding that extra clinic or another institute.  Rather our direction must be guided by more fundamental adjustments in our curriculum so that we can affect positively the preparation of our students to be lawyers and not just knowers of “the law.” To accomplish this task, we must act in ways that will accelerate our students’ professional maturation.  We must have them work not like the law students we were bellowing our newly learned rules of law but rather like the lawyers they wish to become. 

At Elon University School of Law, where I have served as dean since 2014, we have undertaken to do just that.  Our guiding principle is to address the prominent critiques of legal education as being too disconnected from the practice of law, too expensive and too long.  So we decided to think and do – we thought about those critiques and then we acted. 

Over the past four years, we have changed our curriculum to accelerate professional development through a logical progression of learning that requires each student first to observe, then to simulate, and finally to complete a full time residency-in-practice in a law office or judge’s chambers for academic credit.  This highly experiential curriculum, fully compliant with ABA standards, is accomplished in two and one half years, allowing us to reduce per student average debt by some 20%.  Having graduated the first class in this new curriculum last December, Elon Law stands in response to Professor Madison’s call to action.  We know we are not alone and are encouraged by efforts of some other law schools to alter traditional ways of preparing lawyers and thereby prove it is possible not just to think but also to do.  

In posts following, I will share the process by which we came to amend our curriculum, how we are assessing it, and what other activities remain to round out Elon Law’s efforts to act – to think and do so that we offer a contemporary path to our students’ preparation for a life at the bar. 

Luke Bierman (Elon)