Thursday, February 23, 2012

Misunderstanding Legal Education Reform: Peter J. Kalis

Yesterday, this blog posted some remarks by Peter J. Kalis.  Unfortunately, Mr. Kalis does not understand what legal education reform is about.

He states: "As to legal education, there are several reasons why a traditional law school education is advantageous. It thoroughly equips students with the concepts underlying all aspects of our legal system, teaches them how to speak with confidence about those ideas and how to express them and integrate them in spoken and written English—all of which is of enormous foundational value. You can learn skills later, but if those skills are unhinged from the conceptual understanding, they render you, to borrow a phrase, 'a mason and not an architect.'”  He concludes, "As for those critics who wish to transform legal education into a trade school, they are seriously mistaken."

Legal education reform is not advocating teaching legal skills unhinged from conceptual understanding.  The main reason for this is because you can't.  The first step in teaching law is to teach doctrine (conceptual understanding).  This is what is done in "traditional legal education."  What the legal education reformers want to add to this is applying that doctrine to facts--problem solving.  In other words, let's not just learn doctrine, but also the ability to use that doctrine.

Which is better: To learn the statutes of frauds then move on to something else, or to learn the statute of frauds and apply it to a factual situation?  When a student has to apply the law to facts, he remembers and understands the law better.  He will also be able to use that law to solve clients' problems when he gets into practice.

In an advanced skills course or clinic, a student must have conceptual understanding.  You can't handle a case in a clinic without developing conceptual understanding.  You can't draft a contract in a drafting course without having conceptual understanding.  You can't draft interrogatories without having conceptual understanding.  As I have advocated before let's have a class that combines products liability and discovery.  Let's teach the students products liability, then have them apply that doctrine through discovery.

The legal education reform movement is not advocating turning law school into a trade school.  Is a medical school a trade school because the students treat patients?  Is an architectural school a trade school because the students actually design buildings?  I don't want to go to a doctor who just learned chemistry and human anatomy; should law be any different?

(Scott Fruehwald)

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I suspect that only those professors who've never taught both "doctrine" and "skills" or have never "practiced" law beyond a judge's elbow or insulated in a law office library think traditional law school education has a value anything close to its current cost in time and money. When the teaching of legal rules is integrated with guidance in practical application, the learning of both is vastly improved. Law schools are moving in the right direction--except as to cost--but the halting, agonizingly slow pace is both silly and sad.

Posted by: Andy Starkis | Feb 24, 2012 6:45:02 AM

In fairness, having been to architecture school, I still couldn't design a building. It's an incredibly interesting and useful thing to study, but it's no more practical than law school is. In fact, to be licensed, you have to essentially apprentice, then take a series of exams that make the bar exam look like a joke.

In general, however, I think your point is interesting! I'm in the midst of designing a course to teach law students how to take exams, and it does make you reflect on what's being taught, and not taught, in law school! (It's at, if you're interested.)

Posted by: Alison Monahan | Feb 23, 2012 6:58:51 PM

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