The Trouble with Categories: What Theory Can Teach Us about the Doctrine-Skills Divide

Abstract

We might not need another article decrying the doctrine/skills dichotomy. That conversation seems increasingly old and tired. But like it or not, in conversations about the urgent need to reform legal education, the dichotomy’s entailments confront us at every turn. Is there something more to be said? Perhaps surprisingly, yes. We teach our students to examine language carefully, to question received categories, and to understand legal questions in light of their history and theory. Yet when we talk about the doctrine/skills divide, we seem to forget our own instruction. This article does not exactly take sides in the typical skills debate. In fact, neither side will be entirely happy with the ideas presented here. But if we are to respond thoughtfully and effectively to calls for reform, everyone — “doctrinal” and “skills” faculty alike — will need to venture outside comfortable territory. To address the crisis in legal education, we need partners, not winners and losers. This article calls on history and metaphor theory to explain why it is so hard to work together across the doctrine/skills divide and why Carnegie’s promise has not been realized. Taking Carnegie’s diagnosis seriously, the article proposes a strategy for building new bridges instead of maintaining old walls.

Keywords: rhetoric, legal education, cognition, legal history, legal writing, clinical law, alternative dispute resolution, negotiation, Carnegie Report