Educating Lawyers: Preparation for the Profession of Law.

• Author: Alfieri, Anthony V.
• Position: Book review

EDUCATING LAWYERS: PREPARATION FOR THE PROFESSION OF LAW. By William M. Sullivan, Anne Colby, Judith Welsh Wegner, Lloyd Bond & Lee S. Shulman. San Francisco: John Wiley & Sons, Inc. 2007. Pp. x, 225. $40.

"[T]he challenge of professional preparation for the law [is] linking the interests of educators with the needs of practitioners and the members of the public the profession is pledged to serve--in other words, participating in civic professionalism" (p. 4).

INTRODUCTION

Legal education is against practice. More than a half century after Jerome Frank's call for a clinical-lawyer school, (1) and nearly two decades after the MacCrate Commission's plea for professional development, (2) many American law schools continue to privilege theory over practice in teaching, scholarship, and institutional mission. In teaching, law schools elevate formal knowledge and case-dialogue pedagogy over practical judgment and policy analysis. In scholarship, law schools favor doctrinal synthesis and critique over field-based research on "law in action." And in mission, law schools promote a self-regarding vision of lawyer-guild professionalism, role differentiation, and dyadic adversarial conflict over civic professionalism, role integration, and community-based social justice.

The animus of theory-centered traditions toward practice obscures the interdisciplinary breadth, empirical richness, and moral import of lawyer roles and relationships. The same animus reduces professionalism to a largely aspirational function sounded in tropes to alumni, students, and the bar. The results of this animus reinforce conventional roles and relationships among lawyers, clients, and communities; fortify the socioeconomic inequalities of entrenched civil and criminal justice systems; and preserve the disparate treatment suffered by women and minorities in the legal services marketplace. Acquiescence to role convention and sociolegal inequality diminishes the curricular importance of professional development opportunities and programmatic social justice initiatives. Absent a meaningful commitment to professional development and social justice in the law school curriculum, institutional mission succumbs to the reigning orthodoxies of the adversary system and the ethics of the legal marketplace. (3)

The theory/practice dichotomy in law school teaching, scholarship, and mission relegates clinical-lawyer instruction to the periphery of legal education and consigns clinical faculty to a subordinate caste status differentiated by inferior compensation, limited governance, and segregated space. (4) Despite this academic caste hierarchy, an increasing number of law schools have made progress in integrating clinical-lawyer perspectives into their pedagogies, scholarship, and curricular missions. (5) Indeed, numerous schools at all tiers now embrace policy-oriented, problem-solving methods of pedagogy; recognize interdisciplinary, practice-based scholarship; and incorporate "lawyering" skills courses into the traditional core curriculum. Paradoxically, by carving pedagogies of practice out of positivist norms of neutrality and scientific technique, and individualist norms of liberal legalism, law schools have fashioned a new formalism severed from difference-based identity, context, and community. Pedagogies of practice common to both clinics and skills courses point to the rise of this new formalism in claims of neutral lawyer judgment, technical "lawyering" process values, and client-centered representation indifferent to the other-regarding interests of community building. (6)

This Review examines the theory/practice dichotomy in legal education through the prism of the Carnegie Foundation's (7) Educating Lawyers: Preparation for the Profession of Law. Descriptively, it argues that the Foundation's investigation of law school curricular deficiencies in the areas of clinical-lawyer skills, professionalism, and public service overlooks the relevance of critical pedagogies in teaching students how to deal with difference-based identity and how to build cross-cultural community in diverse, multicultural practice settings differentiated by mutable and immutable characteristics such as class, gender, and race. Prescriptively, it argues that the Foundation's remedial call for the curricular integration of clinical-lawyer practices similarly overlooks the utility of critical pedagogies in teaching students not only how to understand difference, but also how to represent difference-based clients and communities here and abroad.

The Review is divided into two parts. Part I explores the Carnegie Foundation's assessment of law schools in preparing students through contemporary case dialogue and in integrating alternative-practice pedagogies. Part II analyzes the ramifications of the Foundation's report for the application of alternative curricular frameworks, particularly critical pedagogies grounded in difference-based identity and community. These frameworks are briefly sketched in a study of the West Coconut Grove Historic Black Church project at the University of Miami Law School's Community Economic Development and Design ("CEDAD") Clinic. The case study demonstrates both the difficulty and the necessity of developing theory/practice pedagogies effective in dealing with difference-based identity in the context of representing communities of color.

1. (MIS)EDUCATING LAWYERS: THE CARNEGIE FOUNDATION CRITIQUE

   The Carnegie Foundation's critique offers an abridged cultural and social history of legal education predicated on the vision of law as a "public profession" and of lawyers as agents charged with "important public responsibilities" (p. 1). The critique gleans this sociocultural history from a cross-section of sixteen law schools of varying tiers surveyed during the 1999-2000 academic year. The Foundation views the preparation of lawyers in law school as "the crucial portal to the practice of law" (p. 1), illuminating "the daily practices of teaching and learning through which future legal professionals are formed" (pp. 1-2).

   To better understand legal education and its implications for the profession, the Foundation focuses on "how learning occurs" in law and in other professions such as medicine (pp. 2, 192-94). Focusing on how law school "forms minds and shapes identities," it links the common aim of all professional education to the cultivation of specialized knowledge and professional identity (p. 2). Next it highlights the "modes of teaching and learning" that law schools use to accomplish that common aim (p. 3). Two modes of teaching and learning stand central to this analysis--the classroom experience of Socratic case dialogue (8) and the clinical experience of lawyer apprenticeship. (9) Both modes of pedagogy contribute to the development of legal understanding and the formation of professional identity. (10) Yet, both produce different and often inconsonant sets of legal skills and professional norms. That dissonance, echoed throughout the law school experience, challenges the Foundation to search the history of legal education for means of pedagogical reconciliation and curricular integration.

   1. The Evolution of Case-Dialogue Pedagogy

      The Carnegie Foundation traces the current dissonance in the professional enterprise of legal education to the evolution of the modern law school as a contested, hybrid institution (pp. 4-5, 78-82). This evolution displays a historic tension between the conventions of the practitioner community and the canons of the modern research university. From the practitioner community, law schools derive traditions of craft, judgment, and public responsibility. From the research university, law schools deduce ideals of knowledge, reason, and truth--academic ideals that emphasize objective, quantitative measurement and formal knowledge abstracted from the daily context of practice (p. 5). Akin to philosophical positivism, this widely adopted academic epistemology heralds the value of importing "scientifically generated" forms of knowledge as "technical instruments for managing events in more rational ways" (p. 5). Legal positivists grasp "law as an instrument of rational policymaking--a set of rules and techniques rather than a craft of interpretation and adaptation embedded in the common law" (p. 5). This institutional seizure of scientific methodology and technical rationality, the Foundation shows, "undermined the academic legitimacy of practical knowledge" in legal education (p. 5).

      To the Carnegie Foundation, the waning legitimacy of practical knowledge under positivist legal theory stemmed from a failure to blend academic and practitioner traditions of legal training in "reciprocal enrichment." (11) That failure breached the legal profession's "contract with society" (p. 21). Repairing this breach and restoring public trust requires academic/practitioner goal integration, a reappraisal of signature pedagogies, and a recovery of professionalism (pp. 21-33). For the Foundation, the opportunity to transform legal education springs from the potential union of innovative practice pedagogies, professional norms, and case-dialogue traditions (pp. 33-43).

      The predominance of case-dialogue pedagogy in law schools signals the triumph of formal knowledge and scientific rationality in legal analysis (pp. 5-7). Marked by the ascendance of university-housed academic specialists, (12) the rise of an abstract jurisprudence of "general ideas and principles" in American law produced a new legal scholarship of doctrinal synthesis and a new method of training in legal knowledge "separate from learning to practice" (pp. 5-6). The new scholarship assimilated the model of formal, scientific discourse, engrafting it on constitutional, statutory, and common law materials (pp. 5-7). Assimilation resulted in the shifting of academic research norms away from practice contexts toward an emulation of the arts-and-sciences disciplines...