Innovation in Legal
Education: Ideas for
st
the 21 Century
The Ryerson Symposium
Ryerson University
What can we learn from
the experience south of
the border?
Professor David F. Chavkin
Washington College of Law
American University
What can we learn from
the experience south of
the border?
Professor David F. Chavkin
Washington College of Law
American University
 Teach First Year courses like Civil
Procedure and in our Integrated
Curriculum
 Teach Upper-Level courses like
Health Law and Professional
Responsibility
 Direct the General Practice Clinic
 The General Practice Clinic is the
largest clinic in the United States
with 90-100 students per year.
 Students represent low-income
clients with a wide range of legal
problems.
 Students are the attorneys for clients
under student practice rules.
Five lessons (from the
southern suburbs of Toronto,
Montreal and Vancouver)
1. Teaching students to think
like a lawyer is not enough
Five lessons from the
southern suburbs of Toronto,
Montreal and Vancouver
2. We are doing great damage
to our students starting in
the first year
Five lessons from the
southern suburbs of Toronto,
Montreal and Vancouver
3. Law school needs to be
taught in a more integrated
manner
Five lessons from the
southern suburbs of Toronto,
Montreal and Vancouver
4. Experiential learning is
critical in teaching adults – in
moving from pedagogy to
andragogy
Five lessons from the
southern suburbs of Toronto,
Montreal and Vancouver
5. We need to acknowledge the
global nature of legal
practice
Father Guido Sarducci
The current revolution
in American legal
education
1. Teaching students to
think like a lawyer is
not enough
“[T]he primary purpose of law school is
. . . to teach students to think like
lawyers.”
The face of American legal
education has been the face of
Christopher Columbus Langdell
 Large classes
 Socratic method
 Case analysis
 Good financially
for law schools
It has been the face of
Christopher Columbus Langdell
 The goal was
to teach
students “to
think like a
lawyer”
What is wrong with that
model?
 It works poorly for certain groups
 Minorities
 Women
 But, the biggest problem is that no
one has ever shown that it works
effectively for white men.
What is wrong with that
model?
 It does a lot of damage along the
way.
What is wrong with that
model?
 And, teaching someone to
“think like a lawyer” is not the
same as teaching someone to
“be a lawyer”
The D’Alemberte critique of
traditional legal education
 Former President of
the American Bar
Association (1991-92).
 Former Chair of the
ABA Section of Legal
Education and
Admission to the Bar
(1982-83).
The D’Alemberte critique of
traditional legal education
 Former Dean,
Florida State
University College
of Law
 Former President,
Florida State
University.
The D’Alemberte critique of
traditional legal education
 "Law students are being told by
law professors that 'We don't
teach you to be a lawyer, but to
think like a lawyer', said
D'Alemberte, launching in before
his progressively more uneasy
audience.
The D’Alemberte critique of
traditional legal education
 “'Isn't that a damn strange
statement?' D'Alemberte
continued. 'What would you say
to . . . educators in other fields if
they said, 'We don't teach you to
be a musician, actor, historian,
physicist – but only to think like
one?'"
What/who brought about the current
changes in American legal education?
 Bob MacCrate
 Senior Counsel,
Sullivan and
Cromwell
 Former President,
American Bar
Association
MacCrate Report - 1992
 ABA Task Force on Law Schools and
the Profession: Narrowing the Gap
 Recommended the teaching of
lawyering skills and professional
values in law schools to enhance
professional development
ABA Accreditation Standard
301(a)
(circa 1993)
 “(a) A law school shall maintain an
educational program that prepares
its students for admission to the
bar.”
MacCrate Report Recommendations
 Teaching should develop the concepts
and theories underlying the skills and
values being taught
 There should be an opportunity for
students to perform lawyering tasks
with appropriate feedback and selfevaluation
 There should be reflective evaluation of
the student’s performance by a qualified
assessor
C. Enhancing Professional Development
During the Law School Years
 2. Standard 301(a) regarding a law
school's educational program should be
amended to clarify its reference to
qualifying "graduates for admission to
the bar" by adding: ". . . and to prepare
them to participate effectively in the
legal profession."
C. Enhancing Professional Development
During the Law School Years
 This would affirm that education in
lawyering skills and professional values
is central to the mission of law schools
and recognize the current stature of
skills and values instruction. (Chapter
7.C and Chapter 7.B)
ABA House of Delegates
Resolution - 1994
 “Methods [clinical legal education]
have been developing for teaching
law students skills previously
considered learnable only through
post-graduation experience in
practice.”
The accreditation standards
 This recognition by the House of
Delegates would find form in concrete
changes in the accreditation standards
that govern law schools in the United
States.
American Bar Association
accreditation of law schools
 As of October 2008, a total of 200
institutions were approved by the
American Bar Association.
 Graduation from an ABA-accredited
school is usually required in order for
students to take the bar examination.
ABA Accreditation Standard 301(a)
 (a) A law school shall maintain an
educational program that prepares its
students for admission to the bar and
effective and responsible participation
in the legal profession.
Standard 302. CURRICULUM.
 “(a) A law school shall require that each
student receive
substantialfor
instruction
substantial
opportunities
in: . . . (4)
.
.
.
professional
skills
generally
instruction in
regarded as necessary for effective and
professional skills
responsible participation in the legal
profession . . . .”
Standard 302(b). A law school
shall offer substantial
opportunities for:
 (1) live-client or other real-life practice
live-client
appropriately
experiences, appropriately supervised
supervised
and designed to encourage reflection by
students
on their experiences and on the
encourage
values and
responsibilities of the legal
reflection
profession, and the development of
one's ability to assess his or her
performance and level of competence;
How do we get there?
 Clearly, not through the Socratic
method!
Payne v. Cave (1789)
 "Mr. Freiberg, will you state the facts in the case of
Payne v. Cave?"
 “This case deals with an auction for a wormtub. The
defendant was the highest bidder, bidding 40 pounds
for the tub. But before the auctioneer's hammer came
down, the bidder revoked his bid. The next day, they
resell it to the same guy, and he buys it for 30 pounds.
The seller sues the buyer for the difference between
the first bid (40 pounds) and the second bid (30
pounds). If the seller wins, the damages are 10
pounds.”
What is a wormtub (anyway)?
What changes do we want to create
in our students?
Goals of Legal
Education
 We want to produce lawyers
with the skills to be effective.
 We want to produce lawyers
with the values to be
responsible.
Why shouldn’t we leave the
teaching of skills and values to
post-graduation
work/apprenticeships/articles?
 1. Law schools are committed to the
education of students above other
interests.
 2. Law schools employ individuals skilled
in teaching.
 3. Law schools employ teachers who are
good role models.
quality alternative to articles
 The Carnegie
Foundation
Report (2007)
The three apprenticeships of
legal education
The three apprenticeships of
legal education
The three apprenticeships of
legal education
“The potential of clinical-legal education for bringing
together the multiple aspects of legal knowledge, skill, and
purpose has long been noted.”
2. We are doing great
damage to our students
starting in the first
year
First, do no harm
 We should respect our own
Hippocratic oath (to first do no
harm) and we should
acknowledge the tremendous
harm that we do to law students
in law school.
Depression among law students and
lawyers
45%
40%
35%
30%
25%
20%
15%
10%
5%
0%
40%
32%
10%
9%
PreLaw
17.90%
19%
9%
9%
9%
9%
1st Year
3rd Year
2 Yrs
PostGrad
0-78 Yrs of
Practice
Lawyers
General Population Maximum
Psychological Distress
(Source: Beck 1995-96)
30%
30%
25%
20% 18%
15%
10%
5%
0%
27%
21%
16%
10%
11%
2.27%
7%
Male Lawyers
Female Lawyers
Global Distress
Depression
Interpersonal Sensitivity
Obsessive-Compulsiveness
General
Population
Anxiety
Paranoid Ideation
Social Isolation & Alienation
Hostility
3. Law school needs to be
taught in a more
integrated manner
Clients do not enter a law
office with the nature of
their legal problem stamped
on their forehead!
Contracts
Torts
Revisions to the first year
curriculum
 Integration of first-year
curriculum to show
connections between what
were distinct courses
4. Experiential learning
is critical in teaching
adults – in moving from
pedagogy to andragogy
Andragogy, not pedagogy
 Pedagogy refers to the art and
science of educating children.
 Andragogy refers to the art and
science of helping adults learn.
Adults learn differently
from children
 We should be basing our instruction
on principles of andragogy, not
pedagogy.
Adults learn differently
from children
 Adults learn best through
discovery learning, through
grappling with ambiguous
problems in which they can own
their experience and draw theory
from practice.
Confucius (551-479 BCE)
 I hear and I forget.
 I see and I
remember.
 I do and I
understand.
Aristotle “Nicomachean Ethics”
Book 2 Ch. 1, 350 B.C.
 “Moral virtue
comes about as a
result of habit. . . .
For the things we
have to learn
before we can do
them, we learn by
doing them.”
The Correspondence of Justice
Oliver Wendell Holmes and Sir
Frederick Pollock (1926)
 “We learn how to behave as lawyers,
soldiers, merchants, or what not by
being them. Life, not the parson,
teaches conduct.”
David Kolb Definition of
Learning
 “Learning is the process whereby
knowledge is created through the
transformation of experience.”
 The “Best
Practices”
Report (2007)
Experiential learning model of
Kurt Lewin as described by David
Kolb (1984)
We often diminish the importance
of
experiential
learning
by
using it interchangeably with
the term “skills training”
 The term “skills” training ignores the
(greater) importance of “values”
training.
 Even within the term “experiential
learning,” not all experiences are equally
valuable to adult learning.
4 GEORGETOWN JOURNAL OF LEGAL ETHICS 537 (1991)
Expansion of experiential
learning
 Integration of experiential
components in substantive
courses
 Integration of drafting and
simulation exercises into existing
courses
 Expansion of clinical opportunities
5. We need to acknowledge
the global nature of
legal practice
Globalization of the
curriculum
 Expansion of international law
courses in the upper-level curriculum
 Integration of international law issues
into existing courses (intellectual
property, health law, criminal law)
Globalization of the
curriculum
 Creation of partnerships with other
institutions
 Expansion of summer programs