Legal Education and Professional Skills: Myths and Misconceptions About Theory and Practice
43 Pages Posted: 16 May 2014
Date Written: December 2013
Current critiques of legal education push law schools toward seemingly contradictory goals: (1) provide more practical training to a greater number of students; and (2) lower operational costs. This article addresses those who have a sincere desire to meet both goals. Although it offers a proposal for restructuring legal education, its primary focuses is on the mental and psychological barriers — the mistakes in thinking — that prevent law faculties from engaging in substantial. At the deepest level is a basic myth: that professional education can meaningfully separate theory from practice. This myth divides legal education into a series of dichotomies, viewing the traditional case method approach of instruction in legal education as teaching “doctrine” and lumps together all other kinds of instruction — legal writing, simulations, clinics, and externships — as teaching “skills.” It divides responsibility for the law school curriculum between “us” and “them,” significantly outsourcing lawyering skills instruction to adjunct professors or assigning it to faculty members in job statuses that give them less power and authority within faculty governance structures.
This article challenges the basic myth by showing that what is traditionally thought of as “doctrinal” instruction regularly sacrifices breadth of doctrinal knowledge in favor of a particular kind of skills training: the ability to analyze appellate cases, to extract and synthesize their underlying principles, and to apply these principles to new situations. Conversely, what is traditionally thought of as “skills” instruction relies — like the Socratic method — on exposing the analytic frameworks that professional experts deploy as they identify client interests, analyze facts, negotiate, advocate, and problem-solve. Once we blur the sharp distinction between “doctrinal” and “skills” instruction, the need becomes clear to restructure legal education to expose students in law school to a much wider array of analytical skills that come into play in the lawyering process. The breakdown between theory and practice also erodes the justification for an “outsourcing” model of legal education and suggests the need for greater collaboration between the academy and the practicing bar in developing a more balanced model of legal education. The article concludes with some concrete suggestions for how legal education could be restructured to respond to these concerns by redeploying existing resources at law schools and realigning the partnerships between the legal academy and the practicing bar.
Keywords: Skills instruction, doctrinal instruction, legal education, law school, curriculum, professional skills, casebook method, pedagogy, practitioners, simulations, clinics, externships, internships, professional values, substantive law, facts, transactional planning
JEL Classification: K00, K4, K3
Suggested Citation: Suggested Citation