The Emperor Has No Clothes, But Does Anyone Really Care? How Law Schools are Failing to Develop Students' Professional Identity and Practical Judgment
56 Pages Posted: 25 Mar 2014 Last revised: 2 Dec 2019
Date Written: May 21, 2015
This article addresses a growing imbalance in law school curricula and will be the first to document, through the author’s independent research, the degree to which schools are ignoring a call to cultivate students' professional formation and ethical decision-making. Two influential studies, one by the Carnegie Institute for the Advancement of Teaching and Learning in Educating Lawyers (Carnegie Report), and the other by the Clinical Legal Education Association in Best Practices for Legal Education (Best Practices Report), agreed on two deficiencies in legal education. One was the lack of lawyering skills course through which students could develop skills be the ready to practice once they leave school. The other, more pervasive critique, was that law schools were failing completely to cultivate students' professional formation and judgment. A recent ABA Survey of Law School Curricula showed a significant increase in skills and experiential courses. The survey was unclear on curricular efforts in law schools to address professional formation and sound judgment. By independently reviewing the published course offerings of every U.S. law school and tabulating data, the author demonstrates through that his findings show that most law schools are ignoring the recommendation to focus on students' professional formation and judgment. Since originally posting this article on SSRN, the author is in the process of gathering data through a survey of law schools to determine the extent to which law schools are employing educational methods designed to cultivate professional identity formation -- or what the Carnegie Report calls the "Third Apprenticeship." The other development is that the original author's colleague and Co-Director of Regent University School of Law's Center for Ethical Formation and Legal Education Reform is assisting with the development of a survey instrument to determine data on teaching professional identity and will revised the article to reflect the findings of that empirical data. The results of the survey and the ultimate findings of this article will be presented at Regent Law Review's Symposium on Cultivating Professional Identity schedule for October 4, 2014. The Symposium's papers and proceedings will be included in the Regent Law Review's Symposium Issue (Spring 2015).
Comparing law schools' response to the recommendation on skills with their lack of response to the recommendations on professional formation shows a clear lack of commitment in most law schools to addressing a deficiency that has significant implications. Both 2007 reports, through empirical studies and investigation, that the degree to which students learn what it means for them to be profession (and not some abstract concept of professionalism in general) has a direct link to the likelihood of effectiveness and satisfaction in practice. The article addresses the reasons that may be causing law schools' inertia, particularly the perception that teaching in this area is too difficult. The last third of the article provides concrete curricular efforts and teaching methods already employed in some law schools. In addition, the article examines methods from other professional schools and suggests specific methods to adapt these to law schools -- teaching methods that have not yet been used, but which should work as well in law school as they do, say, in medical school. Therefore, this article not only provides original data showing that a significant inadequacy in legal education is going unaddressed in most schools, along with clear recommendations for those schools that decide to implement professional formation on how to do so.
Keywords: Legal Education, Ethics, Emotional Intelligence, Practical Judgment, Phronesis, Carnegie Report, Best Practices for Legal Education, Professional Identity
JEL Classification: I20; I21; I29; K00; K10; K29; K39; K49
Suggested Citation: Suggested Citation