Misconception about Carnegie's Recommendation for Law School Reform

I'm not quite sure how, but I have heard discussions (at conferences) and seen written pieces (in journal articles, legal publishers' marketing literature, etc)  concerning the Carnegie Institute for the Advancement of Teaching and Learning's Report, Educating Lawyers, to know that many hold a misconception about what it recommends.  The misconception is that the Report somehow wants law schools to teach more lawyering skills and professional values as separate endeavors apart from addressing the subject matter in doctrinal courses (e.g., Torts, Property, Civil Procedure, Contracts).   However, that's not what the Report says. 

      Carnegie identifies the three apprenticeships to which law schools should strive:  (1) "intellectual or cognitive"; (2) “forms of expert practice shared by practitioners”; and (3) “ethical standards, social roles, and responsibilities that mark the professional.”   (P. 28)   The Report acknowledges that law schools have devoted most of their efforts to the first apprenticeship, developing analytical thinking through the case dialogue method.   After an exhaustive analysis of the case-dialogue method and acknowledgment that it helps law students in the cognitive realm, he Report observes:    "Beginning students’ legal education almost entirely at one end of the pedagogical continuum (i.e., cognitive) is simply not the best start for introducing students to the full scope and demands of the law.” (P. 82)

Thus, the Report recommends that law schools, from first year to third year, in doctrinal courses--as supplemented by clinical courses, internships, and externships--teach in a way that integrates the three apprenticeships into the class.   To accomplish that goal, law teachers will have to cut down on the degree to which they rely exclusively on the case-dialogue method.  Carnegie cites research from pedagogical experts showing that applying a concept by doing it after reading and talking about it will allow students to learn more deeply.  (P. 100)  

Another way to view the misconception about the Report is to say, as many do, that the Report calls for emphasis on "skills" training, as if it is an isolated area of a student's formation.  The misconception fails to see the Report's emphasis on integrating practice-oriented training  as a way to enhance learning.   Moreover, that process of separating skills from legal content and analysis has perhaps been the basis on which those resisting the reforms have formed the view that the recommendation will somehow reduce the quality of thought in the classroom.  It's easier to criticize a method by characterizing it as somehow mundane or purely rote work.  If one has to acknowledge that the method actually calls the teacher to instruct in a sophisticated combination of analysis blended with a practice-oriented exercise illustrating how the topic applies in practice--and thus to think more thoroughly about the intersection of theory and practice, one has a harder time criticizing the method.  A critic can still say the method is unsound.   This critic would have the problem, however, that educational research resoundingly supports the Carnegie recommendation. The report is calling for a method accepted in the educational field as a superior way to help students learn.  If the critic can show how law is somehow so unique that an exception ought to exist, and students should learn content in one course and not have it reinforced by practice-based scenarios, then we need to see the argument.

  

      Fairly stated, the Report calls on schools to integrate the three apprenticeships:   "[T]he three aspects of legal apprenticeship [should] be linked so seamlessly that each contributes to the strength of the other” (P. 191)   Yes, students would learn more of the craft of lawyering in classes traditionally devoted to the study of content of a body of law.  Carnegie recognizes, moreover, the superiority of having students learn the craft in this way (e.g., through simulated practice reinforcing legal concepts), rather than having to rely exclusively on clinical and lawyering courses to do so.  (P. 119) 

I     In short, Carnegie recommends an integrated method of teaching doctrinal courses in which "forms of practice shared by practitioners" enhance students' learning of the various subjects they learn in law school.  The added benefit, of course, is that students are, even as they learn an area of the law, at the same time learning how lawyers apply that law in practice.

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I     Those who dissent from the Carnegie Report's recommendations should at least be fair.  Characterize the recommendation as it is set forth in Educating Lawyers.  At least then the debate can focus on the substance of the recommendation. 

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