2015 Fall Symposium: “Revisiting Langdell: Legal Education Reform and the Lawyer’s Craft”

Friday, October 23, 2015

8:45 a.m.

Benson University Center, Room 401

CLE Credits:  4.5 General Hours Approved

Registration is now Closed.
Thank you to all who attended and/or participated.

This event is free and open to the public.

Please direct any questions to Madison Benedict at [email protected].

Description

The Wake Forest Law Review will host its Fall 2015 symposium, “Revisiting Langdell: Legal Education Reform and the Lawyer’s Craft,” on Friday, October 23, 2015 at Wake Forest University. The symposium will begin at 8:45 a.m. in the Benson University Center, room 401.

Embracing the inseparability of legal doctrine and legal practice sheds much light on the lawyer’s craft, on useful law school curriculum reform, and on what the bar might reasonably expect from law schools. Through this unified lens, the Symposium will look beyond Langdell’s “Socratic” method focused on redacted appellate cases and will explore a richer theoretical understanding of legal education and scholarship and the lawyer’s craft. To paraphrase Kant, the Symposium will explore how doctrine without practice is empty, how practice without doctrine is blind, and how, as a correlate of this separate emptiness and blindness, the humanities play a critical role in law and legal education and scholarship.

In such explorations, the Symposium will expand upon a recent article published in the Wake Forest Law Review entitled “Exercising Common Sense, Exorcising Langdell: The Inseparability of Legal Theory, Practice and the Humanities” available for free download here.

Hosts

Schedule

Abstracts

The Humanities in the Law School Curriculum: Courtship and Consummation
Linda H. Edwards

It is popular today to believe that Langdell was opposed to skills instruction in law school. Elsewhere I have come to his defense on this point, arguing that Langdell was a believer and enthusiastic participant in forms of teaching that today we label as skills instruction. But on the subject of the role of the humanities, the case against Langdell is strong. One of the family resemblances among disciplines in the humanities is their rejection of scientific methods as the primary tools for understanding the world. They lean instead toward a critical theory that sees the world as variable according to context, time, language, and culture. They analyze and critique aspects of human society and cultural values. It is this methodological divide that primarily separates the humanities from the natural sciences. And it was with the natural sciences that Langdell was besotted.

But Langdell was dead wrong. Lawyers with a grounding in the humanities are likely to have stronger lawyering skills. They are better able to interpret and construct legal rules; to recognize, use, and defend against foundational frames; to predict a decision-maker’s range of possible responses; and to choose and use effective strategies of persuasion. Yet the humanities have remained marginalized in the law school world. This paper argues for the humanities, using examples drawn from fiction, world religions, and history, with guest appearances by philosophy and rhetoric. It also suggests a reason for the curricular marginalization and offers a suggestion for making the case for the importance of the humanities in legal education. Back to Top.

Hippocrates and Socrates: Professional Obligations to Educate the Next Generation
Deborah J. Merritt

Do professionals have an ethical obligation to educate new members of their profession? The ancient Hippocratic oath recognized such a commitment, requiring all doctors “to give a share of precepts and oral instruction and all the other learning . . . to pupils who have signed the covenant.” Contemporary theories of professionalism likewise stress the duty of each profession to offer effective education to newcomers. In the legal profession, however, our rules of professional conduct pay scant attention to this responsibility. In this article, I draw upon social and economic theories of professionalism to argue that a duty to educate lies at the heart of a profession’s identity. Without fulfilling that responsibility, a profession is unlikely to maintain its exclusive power. I also examine the allocation of this educational responsibility between the academy and practitioners, and explore ways in which the legal profession might revive its commitment to educating excellent professionals. Back to Top.

Classical Rhetoric: The Ultimate Training Program for Future Lawyers
Kristen Tiscione

The theory-practice divide we are wrestling with today is due, in large part, to the dissolution of classical rhetoric in the Western world and the success of the case and Socratic methods in law school. As Aristotle conceived it, rhetoric is the art of inventing, arranging, and expressing ideas to influence a particular audience to act in one’s favor. It is the ultimate training program for future lawyers. Rhetoric as the study of persuasion disappeared for a number of reasons, but Peter Ramus, a Renaissance humanist and philosopher, is considered to have dealt it a significant and lasting blow, reducing rhetoric to the study of just the expression of ideas. Then, in the late nineteenth century, American university educators were anxious to legitimize their programs of study by teaching them as a form of science. In that vein, Christopher Langdell, Harvard’s law school dean, replaced practitioner-teachers with scholars and reduced legal education to the study of a fraction of the law—judicial decisions. The goal was to discern enduring principles from which all rules of law theoretically flow, but with little focus on the actual practice of law. The net effect has been to perpetuate a theory/practice hierarchy that dates back to Plato and to deprive our twenty-first century students of adequate training in both theory and practice. Back to Top.

History of American Legal Education & The Current Role of the AALS
Blake D. Morant

Legal education has continually evolved since the founding of the nation. This essay will trace the rich history of American legal education and assess the societal events, such as the Great Recession of 2008, which have served as catalysts for that evolution.

During the earliest days of American legal education, following the birth of the United States, prospective lawyers were trained and mentored by practicing attorneys. This 18th century apprenticeship system gave way in the 19th century to the “case method” of instruction, established by the legendary Christopher Columbus Langdell. While the Langdellian model continues to be used extensively today, American legal education has continued to evolve. The 20th century witnessed the advent of experiential and skills-based instruction, and, starting in the late ‘60s, clinical legal education became de rigueur in law schools throughout the United States. Toward the end of the 20th century, law faculties began placing greater emphasis on communication skills.

Today, we find an acceleration of our industry’s evolution prompted by the manifold challenges facing legal education since the Great Recession of 2008. These challenging times have compelled more creativity regarding pedagogy and curriculum. As a result, dynamic new programs have emerged that produce adroit professionals with the tools to function effectively in the 21st century legal workplace. As innovative new programs continue to mount, American legal education’s evolution becomes more dynamic, promoting critical thinking while becoming more relevant in the complex, global marketplace. Back to Top.

Meeting the ABA’s Mandates for Teaching Professional Skills
Part 1: Pursuing the Most Important Learning Outcomes
Part 2: Creating Competent and Affordable Human Resources
Roy Stuckey

ABA-accredited law schools are required to establish and publish learning outcomes that are designed to achieve the schools’ educational objectives, which must include competence in the professional skills needed for competent and ethical participation as a member of the legal profession.

Law schools must also require students to satisfactorily complete one or more experiential course(s) totaling at least six credit hours. Among other requirements, such courses must provide multiple opportunities for student performances and, with the exception of field placement programs, must include feedback about those performances from faculty.

These requirements were adopted on August 12, 2014. They will be applied to law schools during ABA site inspections during the 2016-2017 academic year. “[C]ompliance will be assessed based upon evaluating the seriousness of the school’s efforts to establish and assess student learning outcomes.”

Among factors to consider in assessing compliance with these Standards are whether a school has demonstrated faculty engagement in the identification of the student learning outcomes it seeks for its graduates; whether the school is working effectively to identify how the school’s curriculum encompasses the identified outcomes, and to integrate teaching and assessment of those outcomes into its curriculum; and whether the school has identified when and how students receive feedback on their development of the identified outcomes.

This article has two parts. The first part explores the required learning outcomes and encourages law schools to be mindful of the most important learning outcomes as they develop their responses to the ABA’s mandates. The second part addresses how law schools can create competent and affordable additional human resources for teaching professional skills and values. Back to Top.

Revisiting Langdell: An Introduction
Harold Lloyd

Christopher Columbus Langdell’s odd ideas have sapped law schools of much life, craft, and intellectual vigor. These odd ideas include: (1) the notion that law is a science consisting of “certain principles or doctrines” (emphasis added) whose “growth is to be traced in the main through a series of cases;” (2) the notion that this legal science is best taught through redacted appellate cases even though Langdell himself believed that the “vast majority [of cases] are useless and worse than useless for any purpose of systematic study;” and (3) the notion that this legal science is best taught by people who have never practiced law. These three principles are counterintuitive and just plain wrong.

First, the law has much uncertainty (or we wouldn’t need lawyers), and it also grows through sources other than appellate cases such as statutes and agency rules. Second, mainly reading redacted cases is not only questionable if the “vast majority [of cases] are useless and worse than useless for any purpose of systematic study.” It can also be highly inefficient and can further fail to explore the practical side of law. Third, the notion that practice renders one less fit to teach law is not just odd. It also reduces the intellectual vigor, challenge, and humanity of law school. As to intellectual rigor and challenge, those who have practiced law know that it is much more challenging to craft a solid, enforceable, complex contract than merely to memorize rules and concepts that make such a contract possible. As to the humanity of the law, it is hard to see how relying primarily on redacted appellate cases can convey any deep understanding of that humanity. Redacted appellate cases are stripped in multiple ways of much of the life of the law. They exclude everything outside the record, everything outside the scope of the opinion, and everything falling further prey to Langdellian redaction.

Taking a brighter view of the future, this symposium will explore how we can continue moving from these odd Langdellian notions toward the more intellectually vigorous and life-affirming law schools that markets, morals, and humanity demand. This involves not only exploring the relations between theory and practice, rejecting the notion that practice taints scholarship, and embracing the opposite notion that deeper scholarship requires practice. It also involves embracing the necessary role of the humanities in good legal education. Back to Top.

The Scholarly Impact of Experiential Teaching: Reading, Writing, and Communication Policy
Mary Beth Beazley

Conventional wisdom says that those who teach experiential learning courses don’t have much to contribute to traditional legal scholarship. Many law schools, for example, have created “clinical” legal writing faculty positions that are incompatible with typical scholarly expectations. In setting up these “non-scholarship” positions, law schools are depriving legal writing faculty of the chance to produce scholarship; more importantly, they are depriving the legal profession and the public of the benefits of that scholarship.

The teaching of legal writing is a challenging discipline, and many legal writing faculty have responded to these challenges (and to their outsider status) by learning about pedagogy and andragogy and by creating scholarship about the theory and practice of legal writing. In doing so, they have already made compelling contributions to many genres; more importantly, they have outfitted themselves to contribute in new ways.

In deepening the knowledge needed to be effective teachers of legal writing, legal writing faculty have developed expertise not only in law, but also in reading, writing, and rhetoric. This knowledge makes them uniquely qualified to write about the intersection of reading, writing, and law, and that intersection is an important one. Governments enact law by the act of writing, and they communicate that law to the governed via the written word. The governed perceive that law – or are supposed to perceive it – by the act of reading. Accordingly, when governments decide how they are going to communicate the laws that they enact, the signs they put up, and the forms they require people to fill out, they are making policy decisions.

Legal writing faculty that choose to study communication policy can generate practical, useful, and far-reaching scholarship that draws on a variety of disciplines, from the behavioral theories that explore why people choose to read some paragraphs and ignore others, to hard-science observations like the eye-tracking studies that record how we read digital and paper documents.

When law schools create legal writing faculty positions that require – and thus encourage – scholarship, they are allowing the profession and the public to benefit from the knowledge developed by legal writing faculty as they author scholarship that can have wide-ranging effects on the access that citizens have to their rights and their opportunities. Back to Top.

In Defense of Practical, Clinical, and Experiential Legal Scholarship
Christine Coughlin

Scholarship is deeply engrained in the university experience and plays a pivotal role in professional status and personal security in legal education. Scholarship is a high priority at nearly every accredited law school. In fact, even with recent reforms in legal education, faculty research and scholarship continues to be integral to ABA accreditation. Moreover, similar to graduate school faculty in nearly every field of study, a law professor’s hiring, promotion, tenure, and compensation largely depend a professor’s scholarship.

Law professors, however, are different than many of their university faculty counterparts in graduate programs such as economics, literature, history, mathematics, and philosophy. These professors are generally training their students for lives in academia; similar to the ones they lead.

Law professors are arguably more similar to medical school professors in that when they look out at their students they see women and men who, by and large, will practice in their respective fields. Unlike medical school professors, who generally actively practice medicine, the law professor has chosen a professional life that is different from the professional life that most of her students will lead after they graduate. Thus, unlike medical school professors, law professors have a unique responsibility to equip students with tools that they may not practice on a daily basis.

Ironically, however, the expectation is that law professors will engage in faculty research and produce scholarship that is purely theoretical in nature, similar to the other types of graduate school faculty. While practical, clinical, and experiential legal scholarship does exist, it is underrepresented and makes up only a small portion of law faculty research. Further, it is generally considered to be at the bottom of academic prestige.

Broadening the definition of legal scholarship to allow for quality scholarship that deals with practical, clinical and/or experiential learning will better serve the educational needs of law students, increase social utility, and improve legal practices. It may also have a direct utility for judges, administrators, legislators, and practitioners.

This is not to say there is no need for purely theoretical scholarship. Theoretical scholarship is important and should be continued. In fact, any piece of practical, clinical or experiential scholarship should include extensive theory as theory is an important component of quality scholarship. However, given the changes in legal education and the practice of law, a broader view of legal scholarship—that includes the theoretical underpinnings of the topic — could bridge the gap between the legal academy and the larger professional world by exploring what clients, students, lawyers, and judges deal with on a daily basis and “how lawyers must confront issues of justice implicated by class, gender, race, and other systemic biases.” Back to Top.

“Gaming” Legal Scholarship: Overcoming Bias in Article Selection
Michael Higdon

Every year, law review editors around the country are forced to select which authors, out of the hundreds who annually submit articles, to extend offers of publication. For law review editors, these are stressful times given 1) the short time frame they have for reading and assessing this ever growing number of submissions and 2) the fear that a poor selection on their part could potentially embarrass both themselves and their law schools. Although legal scholars sometimes forget about article selection from the perspective of the hurried, stressed law review editor, everyone in the academy should be somewhat concerned about the current process. After all, numerous studies have shown that, when people are asked to make decisions quickly and under stressful conditions, their decision-making is more likely to be influenced by implicit bias.

On some level, most legal scholars are aware of and begrudgingly accept this phenomenon. In fact, most legal scholars today, when assessing their likelihood of getting a “good” placement, must take into account not only the substance of the piece they are submitting, but the proxies law review editors typically employ to help ascertain “quality”—such proxies include the author’s institution, her alma mater, her publication history, her subject matter, and her overall “fame” within the legal academy. And, to the extent they can, authors actively use those proxies when marketing their articles in hopes of gaining a higher placement.

It is the position of this Article that, although such proxies may be useful in determining the potential virtue of an article under consideration, blind adherence to those attributes alone can result in publications that fail to represent both the breadth of the excellent legal scholarship that currently exists and also the diversity of individuals contributing to that discourse. Thus, recognizing that student-edited journals are here to stay, this Article offers suggestions on how student editors can continue to discharge the weighty jobs they have been given yet, at the same time, minimize the potential for implicit bias in article selection. To make that point, this Article discusses the social science literature on the role implicit bias plays in decision-making with the goal of applying that literature to law review selection. And, indeed, by looking at the current understanding of law review selection, including 1) what studies have revealed about the proxies law review editors rely on in assessing quality and 2) the corresponding marketing techniques law professors use in an attempt to gain higher placements, we see that much bias already exists in our discipline—and this bias has the potential to adversely affect an array of legal scholars: scholars from less prestigious schools, scholars who hold less prestigious titles, scholars who engage in more practical scholarship, scholars who write on less politically popular subjects, and even those scholars who happen to be female or a racial minority. By pointing out these dangers and offering suggestions on ways in which law review editors might attempt to neutralize such bias, this Article hopes journals might improve the degree to which their publications reflect the rich diversity that exists in the legal academy. Back to Top.

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