26 Pages Posted: 16 Aug 2010 Last revised: 3 Jan 2013
Date Written: August 15, 2010
Since the 2007 release of the Carnegie Report on the status of legal education, energy around reform has been tremendous. Indeed, schools of every rank have taken heed of the Report’s finding that while law school teaches students to think like lawyers, it woefully underprepares them to act as such. This essay challenges Carnegie and its conclusion that law school successfully teaches lawyerly thinking. The Report artificially severs an attorney’s thinking from her doing and thus belies the interrelatedness of understanding, experience, evaluating and creating. It defines ‘thinking like a lawyer’ downward to a crisp and detached doctrinal analysis - one that looks more like law-as-puzzle than a serious attempt to solve complex human (or corporate) problems. This narrow view obscures the context and content that lawyers work with and within, and it fails to reflect the more complex take on lawyering that lawyers and lawyering theorists describe. Sophisticated empirical and theoretical accounts of lawyering recognize the recursive nature of knowledge and experience in a way that broadens our understanding of what it means to think like a lawyer.
Through this essay I attempt to fold context and content back in to our notion of lawyerly thinking. And I propose curricular and pedagogical changes that law schools might adopt to better reflect and encourage this richer, fatter, understanding. While it is true that students’ lack of practical training may deny them the ability to write a fantastic brief, legal education’s problems are bigger than that. Law school’s consistent focus on case-method learning may also deny students the opportunity to engage in higher-order thinking about law and policy, about problems and goals, about potential paths, obstructions, and solutions.
Keywords: Legal Education, Carnegie, Lawyering, Problem Solving
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