This next post comes to us from a new blogger on the Best Practice’s Website, Benjamin Madison, a Professor of Law at Regent University School of Law:
In The Bramble Bush (1930) Karl Llewellyn observed: “It is not easy to turn human beings into lawyers. Neither is it safe. For a mere legal machine is a social danger. Indeed, a mere legal machine is not even a good lawyer. It lacks insight and judgment.” Over seventy-five years later, two studies—Best Practices for Legal Education and the Carnegie Institute for the Advancement of Teaching and Learning’s report, Educating Lawyers—reached remarkably similar findings. Both studies concluded that law schools’ preoccupation with the analytical side of lawyering has produced a growing number of “legal machines.” The recent studies do not label modern law graduates “legal machines.” However, their description of the modern graduate—analytically sharp, but jaded and indifferent about values—sure sounds like the same type of lawyer Llewellyn feared.
Llewellyn goes on in The Bramble Bush to explain how the last two years of law school should be used to return students’ “common sense” and to “bring [their] ethics out from ether.” He apparently assumed that, by studying more specialized areas, students would naturally move away from strict logic to a blend of legal reasoning and social concerns. Llewellyn did not explain how law professors should cultivate this transformation. And the question of how to do so, though at times raised previously as an issue in for instance the ABA’s McCrate Report, has not been thoroughly addressed until the publication of the two 2007 reports. The Carnegie Institute in Educating Lawyers and the Clinical Legal Education Association’s in Best Practices for Legal Education comprehensively examined and surveyed law schools, students, lawyers, and judges about the state of legal education. The reports echo each other in many respects, particularly on the need to cultivate in law students the need to develop as whole persons.
Unfortunately, the reports conclude, law schools are failing in this goal—and have been failing for some time. Educating Lawyers and Best Practices describe empirical studies describing interviews with law students when they entered school, at regular intervals thereafter, and finally when the same students graduate. These studies reflect that most law students enter law school with ideals, passion, and goals aimed at helping others. These values, however, are steadily excised as the student progresses through law school. The primary reason students’ ideals, values, and passion are lost, the reports note, has to do with law schools’ exaggerated emphasis on legal analysis. The prevalent method of emphasizing logic and dismissing students’ concerns about justice and principles as, at best, less significant and, at worst, irrelevant to legal analysis leads law students to an obvious conclusion—they should value legal analysis as their “key” to success and abandon their ideals and values as naïve dreams. The reports explicitly recognize that an educational approach that produces such results—intentional or not—damages students, sometimes irretrievably, and clearly affects the manner in which they practice law. To be sure, the reports do not urge schools to dispense with legal reasoning. They do, however, encourage law schools to balance the emphasis on logic and analysis with a recognition that formation of a professional identity will be as important in law school as developing analytical and lawyering skills.
Indeed, perhaps the boldest of the proposals is Carnegie’s recommendation that law schools spend one-third of the law school experience helping students explore their values and how those values will translate into the way they practice law. Developing a “professional identity” is Carnegie’s term for the process that would then take place as law students (a) develop a sensitivity to the profession’s values and to their own values and (b) engage, in the law school setting, situations that will test their adherence to the values to which they aspire. Their professors can foster students’ efforts to form a professional identity by presenting the students with practical legal scenarios that raise a conflict in values, and then by encouraging students to explore and resolve the value conflict. Reflection, it seems, is a key to the process of forming a professional identity. Without such encouragement, many students will go into practice with a vague sense of “what a lawyer should be.” Conversely, with intentional cultivation of students’ values and identity, a student can decide “what kind of lawyer the student wants to be.” In short, the process of cultivating a professional identity will lead students to emerge from law school not only with a sense of the profession’s values and their own values, but also with an awareness of the situations that will tempt them to compromise their values.
As Mary Lynch observed in her 10/21/12 blog, organizations such as Educating Tomorrow’s Lawyers (headed in part by William Sullivan, the lead author of Carnegie’s Educating Lawyers) are helping law schools and professors engage the process of encouraging students to develop a professional identity. Moreover, we are now seeing more teaching materials designed to allow professors to integrate teaching methods that address professional identity formation into their courses. Anyone interested in this development in legal education should contact Educating Tomorrow’s Lawyers and consider joining that consortium or, at the least, discussing with professors in the member schools how one can begin the process of helping students maintain their values and ideals, even as they learn to think like lawyers.
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