As the pressure on legal education and new JD’s from the fallout of the worst financial crisis in the modern era continues, there are efforts underway to transform the nature of American legal education. As I have suggested elsewhere in some depth, the goal of this effort is the death of the autonomous law school as an academic institution in favor of what can, at best, be referred to as “training.”
Thus, the recent ABA Task Force Report on the Future Legal Education calls for a substantial weakening of tenure, and by implication, academic freedom. (Notably, the words academic freedom do not appear in the Report, as if the members of the Task Force are unaware of its centrality to the success of the law school. There were efforts to bring this problem to their attention, both by me and the AAUP.)
Now a prominent former dean and university president, Harry Arthurs, has laid out a critique of the effort to enforce a new pedagogical regime on the law school environment. You can watch Dean Arthurs present his views here at a recent conference on the future of law school hosted by the University of Alberta and read the paper upon which the talk is based here.
As he makes clear the fundamental goal of the law school, which is firmly situated in an academic environment, is to pursue knowledge. It is not a substitute for “training” lawyers whether under the guise of producing “practice ready” graduates or steeping students in so-called “experiential learning.”
While it makes sense to have a certain amount of hands-on activity available for students in law school (I, for example, use mock negotiations and drafting a part of my securities law and corporate finance classes) it is impossible to replicate in the law school setting the process of skills building needed in daily practice of law.
Law schools, fundamentally “knowledge communities” as explained by Dean Arthurs, are not cut out for this task and should not be forced cookie cutter-like into a mold shaped by external market forces. The tension this effort creates is brought home sharply in the final moments of the talk when Dean Arthurs has an interesting exchange with an individual who it appears is the new dean of another Canadian law school.
In Dean Arthur’s words, “law schools should play a leading role in the creation and transformation of legal knowledge, legal practice, and the legal system — a role that requires them to provide their students with a large and liberal understanding of law that will prepare them for a variety of legal and non-legal careers.”
Although Dean Arthurs is Canadian and was dean of Osgoode Hall, one of Canada’s leading law schools, and later president of York University where Osgoode resides, it is clear that the pressure from Canadian law societies on law schools is identical to the pressure being exerted by the ABA to cut the cost of law school at the expense of its academic mission.
It becomes equally clear after listening to this elegant and thoughtful presentation how utterly incoherent the reform agenda is. Thus, his views, echoed in part recently by the faculty at Yale Law School, are well worth considering.