Fundamental Dimensions of Law and Legal Education: Perspectives on Curriculum Reform, Mercer Law School's Woodruff Curriculum, and ... "perspectives" - Mark L. Jones

• Citation: Vol. 63 No. 3
• Publication year: 2012

Fundamental Dimensions of Law and Legal Education: Perspectives on Curriculum Reform, Mercer Law School's Woodruff Curriculum, and . . . "Perspectives"

by Mark L. Jones*

The curriculum decisions law schools argue about are more important than we are willing to admit. They are about the meaning of our life's work through our responsibility for the work and lives of our students. They are about how our story will be told, in other words, when it is told truthfully. So, I suggest in conclusion something you probably do not want to hear-I do not want to hear it either-and that is that we are not only entitled to get upset about curriculum matters, we are also obligated to do so. In thirteenth century France, the battle for control of the curriculum of the University of Paris was understood to be a

* Professor of Law, Mercer University, Walter F. George School of Law. Oxford University (M.A.); The University of Michigan Law School (LL.M.).

I am deeply indebted to my colleagues Dick Creswell and Jack Sammons for their very helpful substantive and editing suggestions during the drafting of this Article and earlier documents from which it grew, for their encouragement and support during the curriculum review process that led to its focus on "perspectives," and for teaching me so much about legal education over the years. I am also deeply indebted to my colleague Dean Gary Simson for conceiving this curriculum symposium project and for being such a conscientious, patient, and thorough editor. Even though none of them will agree with everything I say, this Article would be much poorer without their vital contributions to its development.

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struggle for the souls of students. Perhaps they perceived its importance correctly.¹

This Article is the third in a series of articles that are intended to address in depth my central concerns about the law school curriculum and associated professionalism issues.² This larger project, which I have entitled "Fundamental Dimensions of Law and Legal Education,"³ seeks to make the case for the liberalization of U.S. legal education,⁴ although perhaps the term reliberalization would be more accurate given the emphasis upon a broad education for lawyers during the first phase in the history of U.S. legal education.⁵ Whereas the two prior articles are essentially descriptive-the first being conceptual⁶ and the second historical in nature⁷-the present article is essentially normative. Like the first article, and unlike the second, it does not purport to be based on extensive research of the relevant literature, but is rather an extended essay on a curricular philosophy that has been maturing over many years.

1. Jack L. Sammons, Traditionalists, Technicians, and Legal Education, 38 Gonz. L. Rev. 237, 250 (2002-2003) (footnote omitted).

2. For the prior two articles, see Mark L. Jones, Fundamental Dimensions of Law and Legal Education: A Theoretical Framework, 26 Okla. City U. L. Rev. 547 (2001) [hereinafter Jones, Theoretical Framework]; Mark L. Jones, Fundamental Dimensions of Law and Legal Education: An Historical Framework-A History of U.S. Legal Education Phase I: From the Founding of the Republic Until the 1860s, 39 J. Marshall L. Rev. 1041 (2006) [hereinafter Jones, Historical Framework Phase I].

3. The larger project also envisages one or two coursebooks.

4. The present Article, and indeed the entire project, is animated by the same spirit that animated the pioneering work of a distinguished alumnus of Mercer Law School sixty years ago. See Brainerd Currie, The Materials of Law Study, 3 J. Legal Educ. 331 (1951); 8 J. Legal Educ. 1 (1955).

5. See generally Jones, Historical Framework Phase I, supra note 2.

6. Thus, within the framework of the overall project, the first article puts the educational issues with which I am concerned into a broader theoretical perspective, and lays the project's conceptual foundation, by developing a taxonomic schema for thinking about law, lawyering, and legal education, and by developing an additional theoretical framework for curricular evaluation and comparison that draws upon this schema. The schema and its six sets of "fundamental dimensions of law," which I term the substantive, structural, practical, social, cultural, and transnational dimensions of law, are discussed further infra Part I.A. See generally Jones, Theoretical Framework, supra note 2.

7. The second article builds upon the conceptual foundation laid in the first article. It is one of several envisaged articles that are intended to put the educational issues with which I am concerned into a broader historical perspective, and to lay the project's historical foundation, by tracing the historical development of U.S. legal education since the founding of the Republic until the present day, and by considering how the six sets of fundamental dimensions of law have in fact been treated in the curriculum of studies during the several different phases in this historical development. See generally Jones, Historical Framework Phase I, supra note 2.

2012] LAW AND LEGAL EDUCATION 977

My original plan for this normative component of the project had been to address subject matter and courses dealing with the cultural dimensions of law (that is, the historical, jurisprudential, and comparative dimensions of law) and the transnational dimensions of law. Although these have been my constant central concern in the project, I decided to address subject matter and courses dealing with the social dimensions of law as well.⁸ Thus, I focus on subject matter and courses that are commonly regarded as providing "perspectives" on law and lawyering.⁹

This somewhat modified focus of the present Article has been occasioned by the process of curricular review in which Mercer Law School engaged for the past three years, culminating in the adoption by the faculty of several reforms to Mercer's "Woodruff Curriculum" in the spring of 2011. More specifically, it has been occasioned by my own involvement in a spirited and passionate debate regarding a proposal to eliminate the curricular requirement that students take at least one perspectives course from a slate of such courses in a Perspectives Block. As amended, the proposal resulted in replacing the requirement with a "strong recommendation" that students take such a course.

This Article maintains that students should take at least one perspectives course during their law school career. It is written with passion and deep conviction by someone who has been teaching law for over thirty years and whose passion and conviction about the importance of"perspectives" has only grown stronger over the years, even in the face of skepticism and opposition.¹⁰ The Article also puts into a broader context not only the particular issue of "perspectives," but curriculum

8. The nature of the social, cultural, and transnational dimensions of law is addressed further infra Part I.A.

9. More precisely, then, I focus on subject matter and courses that address the social and cultural dimensions as well as some of the transnational dimensions. I will address subject matter and courses dealing with all of the transnational dimensions collectively, including those that are not commonly regarded as providing "perspectives" on law and lawyering, in a future article. Courses currently in the Perspectives Block at Mercer illustrate the type of subject matter addressed. They include: American Legal History; Bioethics and the Law; Comparative Law; European Union Law; Fundamental Perspectives on Law; Gender and the Law; International Law; Jurisprudence; Law and Economics; Law and Religion; Law, Genetics, and Neuroscience; and Race, Racism, and American Law. Course Descriptions: Perspective Courses, Mercer Law, http://www2.law.mercer.edu/cour ses/index.cfm?blockid=6 (last visited Feb. 28, 2012).

10. My hope is that it will assist those in the legal academy who wish to defend an existing perspectives course requirement in the face of a proposal to eliminate it or to introduce such a requirement where none had existed before, or at least to support a "strong recommendation" that students take such a course.

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issues and curriculum reform in general, and it explains how Mercer's Woodruff Curriculum fits into this broader context.

As the epigraph suggests, curriculum issues are important. Struggles over curriculum issues are struggles for the souls of our students. More than that-in fact because of that-they are also struggles for the soul of the legal profession and the society it serves. These related struggles are part of the continuing conversation about what it means to live under the Rule of Law and about how best to secure the values involved in so living. That conversation is a dialogue involving all branches of the profession, and the formative law school curriculum is at its foundation.

I am in complete agreement with the view that the primary mission ofa law school is to prepare students for legal practice, although I would also recognize a secondary mission of preparing them for positions of civic and political leadership. For far too long (ever since the "Langdel-lian Revolution" that began in the 1870s), and despite its great strength in developing the cognitive analytical skills of "thinking like a lawyer," American legal education has lagged behind professional education in other fields, such as medicine, in its failure to place sufficient emphasis upon the practical dimensions of the discipline. In this respect it has also lagged behind legal education in other developed countries, such as Britain and the countries on the European continent. That began to change in the second part of the twentieth century, with the growth of the clinical movement for example.¹¹ Significant additional impetus was provided by the MacCrate Commission Report in 1992¹² and the ABA Professionalism Committee Report in 1996.¹³ The adoption of the...