Un-apologizing for Context and Experience in Legal Education

• Publication year: 2022

45 Creighton L. Rev. 853. UN-APOLOGIZING FOR CONTEXT AND EXPERIENCE IN LEGAL EDUCATION

UN-APOLOGIZING FOR CONTEXT AND EXPERIENCE IN LEGAL EDUCATION

John McKay(fn*)

Most law schools give only casual attention to teaching students how to use legal thinking in the complexity of actual law practice. . . The result is to prolong and reinforce the habits of thinking like a student rather than an apprentice practitioner, conveying the impression that lawyers are more like competitive scholars than attorneys engaged with the problems of clients.

-Carnegie Report on Legal Education(fn1)

"Go forth and set the world on fire."

-St. Ignatius Loyola, Founder of the Jesuits

I. INTRODUCTION

This Essay accompanies the Fifth Annual Symposium at Creigh-ton University School of Law addressing the rapidly changing legal profession and our not-so-rapidly changing legal education and law school pedagogy. The Symposium's focus on the changing practice of law provides an opportunity to reconsider the woefully incomplete effort by law schools to respond to the challenge of the Carnegie Report and its many preceding critics. Rather than merely pile on, however, this Essay suggests that Jesuit law schools in particular might have something to offer their colleagues-an experiential teaching style grounded in centuries old pedagogy inspired by the founder of the Jesuits, Ignatius Loyola.

The core criticism of legal education states that law students are not prepared for the ethical and competent practice of law upon graduation; therefore, law schools are being judged on how rapidly they expand clinics, externship opportunities, and otherwise allow practicum based models to intrude upon doctrinal and case method courses. These modifications in the legal instructional model remain deficient in addressing the true challenge facing law schools-the inability to train lawyers who know the law (or how to find it), who understand their clients, who are motivated to seek justice, and who are willing to sacrifice selfish interests in the pursuit of a greater good for others. This Essay unapologetically suggests that the core pedagogy of Catholic Jesuit education, with its faith-filled focus on context, experience, and reflection, holds a key to fill the emptiness of today's legal education.

This Essay first examines the unmet challenge in legal education to bring relevance to both its curriculum and its pedagogy. Next, the Essay describes the practical application of the Ignatian Pedagogical Paradigm, long used in Jesuit high schools and universities, to the law school classroom, focusing on context, experience, and reflection. Finally, this Essay concludes with a brief examination of the need for the unapologetic role of faith and justice in all legal teaching.

II. LEGAL EDUCATION AND THE STRUGGLE FOR CONTEXT, EXPERIENCE, AND REFLECTION

The 2007 release of the Carnegie Report marks only the most recent assault on the relevancy and effectiveness of a law degree for prospective students. Many commentators have skewered both the report and the perceived failure of law schools to respond in meaningful ways.(fn2)

More recent events, spurred in part by the huge drop in legal jobs caused by the economic recession beginning in 2008,(fn3) indicate that relevancy based attacks on the efficacy of legal instruction and the value of a law degree will not be subsiding any time soon. Underscoring this problem in a manner understood by lawyers, students have commenced potential class action litigation against twelve law schools in state and federal courts claiming these schools inflated their graduate employment data.(fn4) These and many other law schools have faced blistering criticism from the New York Times and other commentators, alleging in effect that law schools have misled students about the value of their law degrees and their prospects for employment. Declaring legal education to be "in crisis," the New York Times editorialized on November 26, 2011:

In American law schools, the choice is not between teaching legal theory or practice; the task is to teach useful legal ideas and skills in more effective ways. The case method has been the foundation of legal education for 140 years. Its premise was that students would learn legal reasoning by studying appellate rulings. That approach treated law as a form of science and as a source of truth. That vision was dated by the 1920s. It was a relic by the 1960s. Law is now regarded as a means rather than an end, a tool for solving problems. In reforming themselves, law schools have the chance to help rein-vigorate the legal profession and rebuild public confidence in what lawyers can provide.(fn5)

Prospective law students may be catching on to this, with applications to law schools for the fall of 2012 dropping a precipitous fifteen percent.(fn6)

Questioning law schools, specifically the value of legal scholarship, may yet become a national sport. Law schools, from the content of their legal instruction to the law reviews that publish articles and essays like this one, are decried as "ivory towers" and worse. In addressing the Fourth Circuit Judicial Conference in June 2011, United States Supreme Court Chief Justice John Roberts described the impact of law review articles on the highest court of the land:

Pick up a copy of any law review that you see, and the first article is likely to be, you know, the influence of Immanuel Kant on evidentiary approaches in 18th century Bulgaria. I'm sure it was of great interest to the academic that wrote it, but it isn't of much use to the bar.(fn7)

Not all of the pressure is on law school management and the universities that own them. Students face unprecedented pressure to secure high paying jobs in order to service the unprecedented debt that many now carry. When combined with the paucity of jobs for legal employment, the law student with discerning perspective might well question the decision to enroll in law school in the first place. Others will be forced to abandon or delay the kind of work that may have inspired them to enter law school, a place where it might be said the idealistic young student is entrusted to the care of institutions that then proceed to crush the idealism from them like a squashed grape. Foregoing public interest work upon graduation, for example, may be entirely necessary to service enormous student loan payments-and forget about starting a family or purchasing a home.

These criticisms of our law schools, beginning most recently with the Carnegie Report, make the case for a reassessment of the basic structure of legal education. Not that these critiques have gone entirely unnoticed; many law schools have acted to increase clinical opportunities and externships, with some revising the core first year curriculum to include electives.(fn8) No amount of new clinics, extern-ships, or tinkering with the curriculum, however, addresses the core criticism that law schools fail to prepare law students to be capable, or better yet, outstanding lawyers dedicated to selflessly pursuing justice. While admirable, these programs do not change the prevailing Socratic dialogue marked by the lecturing professor teaching appellate cases and questioning students on their knowledge of the facts, law, and holding of the court.

Where might law schools turn to seek inspiration and a proven alternative to our apparently flawed pedagogy? The next section of this Essay suggests that one answer may lie within the centuries old teaching tradition of the Jesuits.

III. THE IGNATIAN PEDAGOGICAL PARADIGM AND LEGAL EDUCATION

Jesuit high schools, colleges, and universities throughout the United States and the world at their core subscribe to a teaching model known as the "Ignatian Pedagogical Paradigm."(fn9) This Ignatian Pedagogy, grounded in the Spiritual Exercises of St. Ignatius Loyola, combines a vision of the human being and a three step methodological core of context, experience, and reflection. Two additional components cement its effectiveness as a valuable and effective teaching tool: a requirement that students take action and that students engage in evaluati...