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Asking the Lost Question: What Is the Purpose of Law School?
Author(s): Bethany Rubin Henderson

Source: Journal of Legal Education , March 2003, Vol. 53, No. 1 (March 2003), pp. 48-79
Published by: Association of American Law Schools
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48
Asking the Lost Question:

What Is the Purpose of Law School?
Bethany Rubin Henderson
Introduction
Law students frequently are critical of both what they learn in law schoo
and how they are being taught. One set of common complaints focuses on t
lack of diversity in courses offered. For example, students object that th
curriculum overemphasizes corporate and private-practice courses to the
detriment of courses focusing on crucial social problems. Many students wh
do not understand why various required courses are mandatory resent bein
forced into them. Another set of concerns focuses on what occurs in the
classroom. Students despair at the lack of faculty guidance on what an

they should be learning. They contend that the classroom environmen
courages them from making meaningful intellectual contributions and
ing in vital intellectual and political discourse. They yearn for regular,
ingful feedback from faculty who are as committed to teaching as they
research. They also object to the standard grading system, in which a
grade is based solely on a final exam, as arbitrary and at best min
reflective of students' intellectual and lawyering capacities. Yet anothe
quent critique is that the issues addressed and the skills taught in law
are far removed from the everyday problems lawyers encounter.
What should be most disturbing to legal educators and the legal profe
however, is the increasingly widespread complaint about the effect of
education on students' perceptions of the law and its role in society. St
arrive at law school full of excitement about the law's capacity to further s
justice. Yet many leave law school disillusioned, perceiving the law as a
neutral instrument and lawyers as persons who wield that instrument with
regard for its impact on society. Students further contend that law sc
institutional and administrative practices, coupled with high tuition, co
ute to this perception. For example, a common protest is that law schoo
students into private law firm practice but at best do not effectively assist
worst impede students' efforts to enter the legal profession in other capaci
Bethany Rubin Henderson is an associate at Quinn Emanuel Urquhart Oliver & Hedges.
I very much appreciate the guidance and encouragement I received from Lani Guinie
Daniel Coquillette. My heartfelt thanks also to my father, a consummate lawyer and law p
sor, Michael Rubin, for his support and input.
Journal of Legal Education, Volume 53, Number 1 (March 2003)

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Asking the Lost Question : What Is the Purpose of Law School ? 49
Students are not the only ones expressing concerns about legal education.
Faculty, law school administrators, and professional organizations also offer
frequent criticisms. The recognition of how wide and deep student concerns
run has spurred some faculty and administrators to turn a critical eye on their
own practices. Their assessments of where legal education is failing students
derive from a belief that student concerns are generally valid and merit a
response. Apprehension about the efficacy of the predominant law school
pedagogies - the Socratic and case methods - has prompted numerous other
critiques. Professional organizations such as the American Bar Association
also periodically query how well law schools prepare students for practice.
Why do these criticisms of legal education matter? Given that law schools
continue to graduate large numbers of new lawyers each year, most of whom
engage in relatively successful legal careers, should we be at all concerned
when we hear complaints about legal education? The answer is an emphatic
yes. There are two reasons. First, what happens in law schools directly contrib-
utes to the much-discussed "crisis" in the legal profession. Yale Law School
dean Anthony T. Kronman aptly describes this crisis as,
in essence, a crisis of morale. It is the product of growing doubts about the

capacity of a lawyer's life to offer fulfillment to the person who takes it up.
Disguised by the material well-being of lawyers, it is a spiritual crisis that
strikes at the heart of their professional pride.1
The criticisms of legal education demonstrate that today's law students doubt
their ability to lead fulfilling lives as lawyers, despite the financial rewards of
private practice. Students' complaints reveal that not only is attending law
school generally unfulfilling, but also that legal education alienates students
from their values and ideals. As law school is students' first systematic intro-
duction to the ideals of professional excellence, its deleterious impact on
students' perceptions of professional norms should greatly concern the legal
profession.
Furthermore, law school is the appropriate forum to inculcate professional
norms and a vision of law as a noble public profession. A fundamental role of
any education is to socialize students into the culture and norms of the
community. The values and norms both implicit and explicit in students' law
school experience greatly affect their perception of the legal profession. As
Kronman says, "It is in the law school classroom that lawyers are introduced to
the culture of the profession and here that their professional self-conception
first takes shape."2 As law teachers encounter prospective lawyers before their
impressions of the legal profession are fully formed, they "have a unique
opportunity to influence the attitude of the nascent lawyer committed to their
1. The Lost Lawyer: Failing Ideals of the Legal Profession 2 (Cambridge, Mass., 1993).
2. Id. at 269.

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50 Journal of Legal Education
classrooms at the embryonic stage of his legal career."3 Law

recognized their socialization capacity; they have served as t
tural and ideological device [s] in the making and shaping o
legal profession" since the late nineteenth century.4 There
are not simply an appropriate avenue through which to inst
culture of the legal profession in its members. They repres
opportunity for the legal profession to pull itself out of its pre
Finding the Source of the Concerns About Legal Education
Typically analysts explain away students' dissatisfaction wi

blaming the actors. One theory blames the students. Rathe
how law school practices mesh with student goals, experienc
some claim the real problem is law students' sense of entitlemen
ethic, and generally whiny attitude. If students were not so spo
prepared, and were willing to work hard, they argue, ther
problems in law schools.
Blaming students for legal education's problems has seve
critically, it does not recognize the real differences between
dents and those of the 1870s, for whom traditional leg
designed. Students in the 1870s were relatively homogeneo
upper-middle-class white Protestant males of approximatel
educated in philosophy, classical studies, and political scien
to be personal lawyers, appellate lawyers, judges, and states
law students are decidedly heterogeneous. They are men an
ages, races, ethnicities, religions, socioeconomic classes, and
grounds. They aspire to (and enter) a wide range of careers
in fact, many attend law school because they believe it
degree, not because they have a strong desire to spend the
sional lives as lawyers. Nevertheless, the blame-the-student a
that what was taught to law students in the 1870s is still app
disregards not only that law students have changed considera
lawyers play different - and many more - roles in the twenty-
they did in the nineteenth. Finally, this argument often deg
critic's perception of his own success in law school: "I learn
way. It worked for me, and it should work for everyone."
A second theory blames law teachers, for a variety of reaso
some claim that the "scholarly culture" in law schools underm
that law is a noble profession. They believe the focus on phi
like legal realism, law and economics, and critical legal the
faculty from their mission of teaching people how to beco
lawyers. In fact, they contend, law teachers' total absorpti
aspects of law causes them to teach law solely as an academ
considered from a contemplative distance rather than from
up-close-and-personal viewpoint.
3. John R. Peden, Goals for Legal Education, 24 J. Legal Educ. 379, 382
4. Robert Granfield, Making Elite Lawyers: Visions of Law at Harvard an
York, 1992).

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Asking the Lost Question: What Is the Purpose of Law School ? 51
Others claim that law teachers nearly uniformly ascribe to an ideology that
excludes emotion from the classroom on the grounds that this is the way to
develop logical and rational thinking. This suppression of emotion drains
intellectual discussions of meaning, alienating students and limiting their
ability to locate their arguments in a broader moral or philosophical frame-
work.5 A third - and similar - claim is that faculty present all materials, includ-
ing contextual ones, only from "a traditional legal perspective, i.e., the legal
structures or principles they involve."*' By so limiting students' ability to
conceptualize the interrelationship of the law and other disciplines, teachers
impress upon students a narrow, value-neutral, and alienating vision of the
law. A fourth claim argues simply that law teachers lack the grounding in
educational and learning theory to instruct their students effectively. The
students' struggle to overcome poor teaching results in disenchantment with
law school and a distancing from the law itself.
Blaming the faculty for legal education's flaws is every bit as inadequate as
blaming students. First, law teachers' academic research and writing are vital
to our legal system. Few practicing lawyers and judges have the time or the
opportunity to reflect on the larger societal impact of their actions. Instead
they turn to the writing of academics for information and commentary.
Second, despite the compliance of many faculty in perpetuating the widely
deplored aspects of legal education, faculty themselves are not the ultimate
source of the problem. Not every law teacher demands the exclusion of
emotions from the classroom or projects a value-neutral conception of the
law. Many, in fact, try hard to provide students a broader, more contextualized
perspective. However, in several ways law teachers are limited in their ability to
have systemic impact on either students or the legal profession. Law school
classes are so large that most faculty rarely develop meaningful relationships
with their students. Additionally, the massive writing requirements of the
tenure process tether the most junior faculty, the ones most willing to explore
alternative pedagogies, to predominantly academic endeavors.
Variations on the blame theme include blaming administrators rather than
teachers, blaming ABA and state bar requirements, and blaming the historical
elitism of the legal profession. These explanations also fall short. Since faculty
typically control many decisions, administrators are often more limited than
teachers in their ability to effect change at law schools. ABA requirements may
indeed place some constraints on law schools, but they certainly do not
prevent the schools from providing students a fulfilling education. Lastly, the
residue of history is no excuse for the shortcomings of today.
5. Angela P. Harris & Maijorie M. Shultz, "A(nother) Critique of Pure Reason": Toward Civic
Virtue in Legal Education, 45 Stan. L. Rev. 1773, 1775-85 (1993). Proponents see this
ideology as derived from the concept of law as a science and reinforced by the legal
profession's ideals of lack of bias, fairness to all, and dispassionate approach to the law. Id. at
1775-79.
6. Steven H. LeLeiko, Legal Education - Some Crucial Frontiers, 23 J. Legal Educ. 502, 507
(1971).

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Most importantly, all of the blame-theme explanations for

legal education suffer the same fatal flaw. All fail to offer
justification for the existence of law school.7
Asking the Lost Question: What Is the Purpose of Law Scho
Discussion about the shortcomings of legal education is futi

agree why law schools exist.8 Without an understanding of th
school, assessments of schools' practices are hollow. As one
education recognized, "Only when the purpose [of legal educ
fied can determinations be made as to subject-matter and educational meth-
ods."9
Therefore, any discussion of legal education must begin not with what (is
happening in law schools) or who (is doing these things), but why (are we
doing anything at all) . Why does law school exist? What purpose does it serve?
Ascertaining its purpose provides a framework within which to have a mean-
ingful discussion of what law schools should and should not be doing. Law
school's purpose is the measuring stick against which to evaluate not just the
abundant complaints and criticisms that legal education attracts but also the
efficacy and relevance of law schools' practices.
In this paper I propose that the source of legal education's problems is that
law schools' practices, which are based on the way law schools have been
operating for more than 100 years, do not correspond to the purpose of law
school today.10 I first explore the fundamental question: what is the current
purpose of law school? I conclude that the purpose of law school is to teach a
heterogeneous group of people, who come from widely different backgrounds
and with widely differing goals, to think like lawyers. I next explore exactly
what teaching these people to think like lawyers means. After undertaking a
functional analysis of the roles lawyers play in our society, to understand what
it is that lawyers actually do, I conclude that "teaching people to think like
lawyers" is not simply a matter of cultivating nascent skills in logical reasoning,
7. The ABA assessments of legal education, which attempt to focus not on blame but instead on
practices they believe law schools should adopt, share this weakness. For example, although
the MacCrate Report recognizes the need to determine what skills and values lawyers require,
it takes law schools' existence and relevance for granted. Section of Legal Education and
Admissions to the Bar, American Bar Association, Report of the Task Force on Law Schools
and the Profession: Narrowing the Gap, Legal Education and Professional Development -
An Educational Continuum (Chicago, 1992) [hereinafter MacCrate Report].
8. Taking the purpose of education as the foundation for all other discussions about education
is a concept frequently used in discussions of K-12 education. See, e.g., Patricia Albjerg
Graham, Schools: Cacophony About Practice, Silence About Purpose, Daedalus, Fall 1984, at
29.
9. Peden, supra note 3, at 387.

10. My understanding of the source of problems with legal education is not unique. For
example, in 1995 Gary L. Blasi argued that "[o]ur legal education system is predicated on
unstated and generally unexamined assumptions about what lawyers do." What Lawyers
Know: Lawyering Expertise, Cognitive Science, and the Functions of Theory, 45 J. Legal
Educ. 313, 324 (1995). The MacCrate Report also recognizes the importance of basing what
occurs in law school on a comprehensive understanding of what lawyers actually do today.
MacCrate Report, supra note 7, at 7.

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as is commonly assumed, but instead entails helping students develop a broad

range of skills and knowledge.
I then describe today's law schools' practices (which are remarkably consis-
tent across the country) and compare them against law school's current
purpose. My comparison reveals gaps between the current purpose and the
present practices - gaps that coincide with oft-expressed concerns about legal
education. This suggests that bridging the purpose/ practice divide can allevi-
ate much of the dissatisfaction with law school and potentially ameliorate the
crisis in the legal profession. I conclude by offering some preliminary sugges-
tions of ways to align law schools' practices with law school's purpose.
The Current Purpose of Law School
How Do We Determine What the Purpose of Law School Is ?
There are two primary ways to determine an institution's purpose. The first
is to look at what the institution claims to be its purpose. The second is to
consider an institution's current practices in light of its history - why it devel-
oped in the way it did and what historical purposes it served.
Although mission statements are the standard institutional proclamations
of purpose, law school mission statements do not reveal much. Neither the
AALS nor the ABA offers a mission statement for the institution of law
school.11 Many individual schools, however, do have mission stateme

sistency among them might provide insight into the current purpo
institution of law school. But unfortunately law schools appear to treat m
statements as a formality. A recent survey of law school deans revealed
schools' mission statements do not accurately reflect what deans beli
their school's internal strengths, public image, or core values - prim
ments that schools use in making strategic decisions.12 Thus, seek
underlying consistency in mission statements is not a reliable way t
mine the current purpose of law school.
Examining law school's historical development, while somewhat mo
ful, also does not fully elucidate its present purpose. Law schools as
them - schools teaching only law that are part of larger universities
emerge until the 1820s.13 Blackstone gave the first known lecture
common law at Oxford in 1753. 14 It was not until 1779, however, that A
can universities began appointing professors of law. Such a professor
11. The MacCrate Report, supra note 7, does set forth the ABA's vision of the legal
the skills and values new lawyers should seek to acquire, and what legal education
should provide what training. But the report is primarily descriptive and does n
succinct purposive mission statement for law school.
12. See Gordon T. Butler, The Law School Mission Statement: A Survival Guide for th
first Century, 50 J. Legal Educ. 240, 248-53 (2000).
13. For a history of American law schools, see Robert B. Stevens, Law School: Legal E
America from the 1850s to the 1980s 3-34 (Chapel Hill, 1983).
A few stand-alone law schools still exist today. But even the ABA recognizes that " [
of their structure, curriculum, and academic emphasis, [these] schools are virtually
guishable from their university-based counterparts." MacCrate Report, supra note 7
14. Arthur E. Sutherland, The Law at Harvard 2 (Cambridge, Mass., 1967).

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time, was like a professor of philosophy or government; he

department, and his purpose was simply to lecture to the un
nity about interesting legal issues.15 In 1784 the first school to
training lawyers opened its doors. Litchfield, a private, stan
ment, was fundamentally a vocational school. It claimed to b
standard law office apprenticeship because it "taught the law
not merely nor principally as a mechanical business, nor a
loose independent fragments."1*' In practice, however, Litchf
were merely the "natural outgrowth of an office overcrowd
who sought to 'read law'" under a particular lawyer's tutelag
Throughout the 1800s universities absorbed private la
Litchfield for their profit-making capacities.18 Yet university l
mid-nineteenth century bore little resemblance to those o
liberal arts programs included occasional lectures on legal i
the study of law was considered useful not just for prospective
"for men not intending to practice, but who wished to fit them
office."'20 Law departments, however, "were marginal to the
their host universities and often competed for students wit
curriculum.-1 Most law departments had only a couple of fa
was to lecture about the law to large groups of students.22 L
predecessors, university-based law schools in the mid- to l
century "were primarily trade schools."23
The introduction of the case method by Harvard Law Sch
Langdell in 1870 revolutionized law school. Perceiving law
vided a justification for the existence of law schools. ... If
science, then it deserved serious academic study."24 By the 1
embraced both the case method and Langdell's model of
professional law school as the appropriate mechanisms to r
standards and "control the number and, perhaps, the ethn
derivation of new entrants to the bar."25 As Robert Stevens has said, "the
15. Stevens, supra note 13, at 4-5.

16. Id. at 4.
17. Marian C. McKenna, Tapping Reeve and the Litchfield Law School 59-60 (New York, 198
(noting that Reeve, the school's founder, "never made any distinction between his office an
his school").

19. Id. at 35.
20. Sutherland, supra note 14, at 25.

21. Stevens, supra note 13, at 35.
22. Russell L. Weaver, Langdell's Legacy: Living with the Case Method, 36 Vili. L. Rev. 517,
25 (1991). Students' preparatory work for these lectures consisted primarily of reading le
treatises. Id. at 525.

24. Weaver, supra note 22, at 529.
25. John J. Costonis, The MacCrate Report: Of Loaves, Fishes, and the Future of American Legal
Education, 43 J. Legal Educ. 157, 162 (1993). See Granfield, supra note 4, at 26-33 (detailing
how the elite bar developed an interest in creating and maintaining standards within the
legal profession). Although the implementation of high standards directly contributed to

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Asking the Lost Question : What Is the Purpose of Law School ? 55
concept of providing part of legal training through an institution known as

the law school had become associated with the parallel aspect of institutional-
ization - the urge to raise standards and so make the bar more competent and
more exclusive."26 University law schools' purpose shifted from training gentle-
men, lawyers, and statesmen to establishing and controlling the culture and
ideology of the professional bar. University law schools evolved past the
vocational training of their private competitors as they "sought to ritualize
language, elite traditions, legal consciousness, social characteristics, and po-
litical thought." For the elite lawyers of the late nineteenth and early twentieth
century, then, "law schools were to function as the appropriate transmitter of
established legal culture."27
Nevertheless, until the end of the nineteenth century "the vast majority of
the legal profession . . . still experienced only on-the-job legal education."28
Apprenticeships remained more common than law school attendance, and
law school requirements were minimal.29 In fact, many people who attended
law school did so in addition to, not instead of, serving an apprenticeship.30
Furthermore, men who attended law school had no edge on passing the bar
over those who took the apprenticeship route.31
During the twentieth century, however, law schools pushed out apprentice-
ships as the standard legal education. The transition came largely as a result of
the pressure on the professional bar to raise standards and the growing desire
to curb the exponential increase in the number of lawyers.32 In the 1920s the
ABA and the AALS recommended that all prospective law students complete
two years of college work, and by the end of the 1930s most states had adopted
creating the profession of law, this movement, and the entrenchment of university law
schools in response to it, had a darker side. Under the guise of maintaining high standards by
requiring law school attendance, many minorities who previously could have read in appren-
ticeships to pass the bar were effectively blocked entirely from the practice of law.
27. Granfield, supra note 4, at 27. During Langdell's 25-year deanship, 1870-1895, "institutional-
ized legal training was established as de rigueur for leaders of the profession." Stevens, supra
note 13, at 36.

29. Law schools often accepted students who did not gain admission to their host university's
liberal arts curriculum. Stevens, supra note 13, at 37-38. Graduation from high school, much
less college, was not a standard prerequisite for admission to law school. Id. Law was an
undergraduate degree, and students attended classes for eighteen months to two years. Id. at
36-37. A mandatory three years of law school was not imposed until 1899, and law did not
become a graduate course of study until after World War I. Id.
30. Id. at 25. It was not until the 1890s that a requirement of formal study or apprenticeship was
instituted in the majority of states. Id.
31. Only the few law schools with a diploma privilege, which allowed students to be admitted to
practice upon examination by three of their law school teachers, could offer their students an
immediate practical advantage over an apprenticeship. See id. at 26. During the last decades
of the nineteenth century, oral bar examinations began to give way to written ones. Id. at 25.
32. See id. at 173-216. For an alternative perspective on the impetus for change in the legal
profession, sec Bernard J. Hibbitts, Representing the American Lawyer as Reformer: A
Prospectus (2001) (unpublished manuscript) (discussing the impact of lawyers' perceptions
of themselves as law and social reformers).

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this requirement.33 By the 1960s four years of college and thre

time law school had become the norm.34 The concept of a
which all lawyers require the same skills and knowledge), fi
1878 at the original organizational meeting of the ABA,35
"irrebuttable presumption"; its natural counterpart was uni
which resulted in homogeneity among law schools.30
Clearly the purpose of law school has evolved and change
needs and interests of the public and of the legal professio
school's history does not define its present purpose, it does h
that present purpose. It tells us that, as a result of their his
present-day law schools are the primary gatekeepers for the leg
The vast majority of state bar associations require that pro
earn a law school degree in order to be eligible for state bar
the most common path to becoming a lawyer is to attend law sc
one-tenth of one percent of people who passed the bar exam
did not attend law school.38 Law schools' admissions proces
first hurdle to becoming a lawyer. Through the admissi
schools select who will ultimately be eligible to sit for the b
Furthermore, as a result of the institutionalization of univ
schools, present-day law schools are fundamentally academ
They confer postbaccalaureate degrees, not licenses to pract
closely tied to universities that influence their operations,
budgets. And while ABA and state bar requirements certai
schools' decisions and practices, they do not control them.
33. Stevens, supra note 13, at 172-79. In their attempts to standardize leg
and the AALS made several other recommendations, including lowering
faculty ratios and increasing the number of books held by law school libra
adopted extra requirements in addition to those urged on them by the
Id. at 179-80. The professional bar's move to increase control over legal
successful; during this era, partly in response to the demands of incre
partly in response to the economic climate, the number of unaccredited l
dramatically. Id. at 172-80.
34. Id. at 209.
35. MacCrate Report, supra note 7, at 105-06.

37. The MacCrate Report defines thejudiciary as the gatekeeper of the legal profession. MacCrate
Report, supra note 7, at 114-19. Through its regulatory role thejudiciary does indee
perform a gatekeeping function. But even before prospective lawyers become subject to
judicial regulation, they must be accepted into law school. While thejudiciary, in conjunc
tion with the organized bar, monitors the passage between law school and law practice, law
schools control who gets in the front door of the legal profession.
38. I arrived at this figure by dividing the total number of persons who passed all state bars in a
particular year by the number of those passers who had not gone to law school and then
averaging the numbers across years. I used the statistics provided by the National Conference
of Bar Examiners, at <http://www.ncbex.org/stats/content.htm> (last visited Mar. 27, 2002).
Although this is admittedly a very rough calculation, over the years for which the NCBE
makes statistics readily available, the percentage of non-law-school attendees who passed
bar examination and thus became eligible in some states to practice law averaged well below
.1 percent of all persons eligible to practice law.

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Asking the Lost Question : What Is the Purpose of Laxu School ? 57
Defining the Purpose - What It Means To " Think Like A Lawyer "
The most important thing this historical look has shown us is that the
purpose of law school has evolved in accordance with the needs and interests
of the legal profession and of the public. The purpose of law school in the
1780s was not the same as the purpose of law school in the 1870s, and neither
defines the purpose of law school today. The current purpose emerges from
the unique role law schools now play in lawyers' development. Law schools
encounter prospective lawyers at their most formative stage and offer them
their first formalized introduction to the legal profession. As primarily aca-
demic institutions, law schools are most capable of teaching novices the
cognitive skills lawyering requires. In short, then, given law schools' capacities
and novice lawyers' needs, the purpose of law school can be summed up in the
recognizable phrase: to teach people to think like lawyers. 59
The inquiry into the purpose of law school cannot end with that simple
assertion, however. When we consider whether an institution is meeting its
purpose, our terminology must be precisely delineated.40 Imprecision in de-
fining an institution's purpose allows into the dialog hidden assumptions that
undermine the assessment of institutional practices against that purpose. So
the critical first step to understanding the purpose of law school is to define
what it means to "think like a lawyer." Although this is an oft-stated justifica-
tion for law school, no consensus exists about what "thinking like a lawyer"
means. Furthermore, the concept of thinking like a lawyer is loaded with
notions, accumulated over time, about what a lawyer does. We need to reex-
amine and clearly define what it means to "think like a lawyer" before we can
begin to assess lawyers' practices.
At the most generic level, teaching people to think like a lawyer means
teaching them how to approach situations as a lawyer would. Thinking like a
lawyer involves two elements, one functional and one normative.
39. Several writers have suggested that a second purpose of law school is to produce legal
scholarship. See, e.g., Butler, supra note 12, at 241; Derek Bok, A Flawed System of Law
Practice and Training, 33 J. Legal Educ. 570, 581 (1983). Law schools clearly do perform this
function. Although evaluating this claim in full is beyond the scope of this paper, I will briefly
address it here. I submit that producing legal scholarship is a secondary purpose of law school,
one that should complement, but not supersede, law school's primary purpose of teaching
people to think like lawyers. For this claim I offer two brief justifications. First, law schools do
not hold a monopoly on legal scholarship as they do on training prospective lawyers. Think
tanks, law-related nonprofits, and individual practicing lawyers, for example, contribute
greatly, and regularly, to legal discourse. Second, the time demands of legal scholarship are
intensive. Today's law teachers, who are under immense pressure from tenure requirements
and their peers to produce scholarly publications, find it tempting to, and of ten do, subordi-
nate their teaching responsibilities to their research. As a result, the teaching of students,
clearly a primary purpose of law school, suffers. Thus, while faculty's legal scholarship is
indeed valuable, it should be done in a manner that supports students' education, and
should not be used as an excuse for inadequate teaching.
40. See Deborah Meier, The Power of Their Ideas: Lessons for America from a Small School in
Harlem 161 (Boston, 1995) (discussing the importance of terminological precision in
defining the purpose of education).

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58 Journ al of Legal Education
The Functional Component

The functional element defines how lawyers think in terms
do.41 What skills and knowledge lawyers rely on depends u
they perform. If we figure out what lawyers actually do, we
from that understanding to determine what skills and kno
to lawyering.
One standard way of defining what lawyers do is in terms o
serve and the size of the offices in which they practice.
public or private work. They practice solo or work in a large,
private firm, for the government, or for a nonprofit legal se
work as in-house counsel for corporations or other - typ
organizations. Another common way to categorize lawyers is b
they work on. Lawyers' work is either a litigation (trial or
or a transactional practice; it focuses on specific subjects, s
law or admiralty law.
Although such categorizations are interesting, they obscu
about being a lawyer.42 Lawyers in fact perform similar func
who their client or employer is and how much money ei
more, lawyers perform multiple functions regardless of who
who their client is, or what specific area of the law they focu
A better way to understand what lawyers do is to look
lawyers actually perform. If we can define a set of lawyering
examine them to see what types of skills and knowledge t
clusters of skills and knowledge constitute the functional elem
like a lawyer.
Lawyering functions. Lawyers perform a wide range of f

common across the legal profession and can be groupe
categories.
Lawyers are advocates and advisers.4* Lawyers work to secure the best possible
outcomes for the clients they represent or the social causes for which they
advocate. To do this, they provide clients with all necessary information to
make an informed decision about what actions to take and then assist clients
in pursuing their chosen course of action. They help clients assess leg
41. Sec Nancy Schultz, How Do Lawyers Really Think? 42 J. Legal Educ. 57, 57 (1992) (assert
that "we cannot really teach students how lawyers think without teaching them at the sam
time what lawyers do").
42. Furthermore, particularly on law school campuses, the public/private distinction is po
cally charged. Underlying consideration of what legal job to accept is the often unspoke
apprehension that public equals good and private equals selling out. Such value judgmen
contribute to the manner in which client-centric characterizations of lawyers obscure t
functions lawyers actually perform. For further discussion of this, see Robert Granfie
Constructing Professional Boundaries in Law School: Reactions of Students and Implicatio
for Teachers, 4 S. Cal. Rev. L. 8c Women's Stud. 52, 69-74 (1994).
43. Lawyers performing advocacy and advising functions draw on five of the elements
MacCrate Report lists as fundamental lawyering skills: problem solving, legal analysis a
reasoning, legal research, factual investigation, and counseling. See MacCrate Report, su
note 7, at 138-39, 141-72, 176-84.

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Asking the Lost Question : What Is the Purpose of Law School? 59
personal, and financial problems, and assist clients on moral issues.44 They
conduct legal and factual research, and synthesize arguments about possible
interpretations of laws and the application of laws to particular sets of facts, to
present clients with solutions to problems or risk analysis.
One common means by which lawyers advocate for causes or clients is
litigation. Lawyers prosecute criminals, bring civil suits against people or
entities that violate the law or breach private agreements, and defend the
government against challenges to its actions and decisions. They also bring
and defend lawsuits on behalf of private clients or for the purpose of further-
ing a particular social policy. In pursuit of such lawsuits, lawyers make written
and oral arguments in court about the correct interpretations of laws, negoti-
ate with opposing counsel, testify in front of government entities, draft con-
tracts, participate in alternative dispute resolution processes, and lobby gov-
ernment officials. They investigate potential claims both for and against their
clients or cause. They investigate and depose potential witnesses and seek out
evidence. They prepare clients for depositions and trial. They advocate for
interpretations of statutes that support their client's claims. They advocate for
the application of common law in a manner that supports their client's or
cause's interests.
Other common ways in which lawyers advocate for clients or causes inclu
acting as public spokespersons on their behalf, organizing groups of like
minded persons for community and legal action, testifying in front of govern
ment and regulatory bodies on behalf of clients or causes, and negotiatin
contracts and lobbying for legislation favorable to their clients or causes.
Lawyers are makers and implementers of policies and rules. Lawyers draft, desig
and interpret rules and policies for government and for private and nonpro
entities; they make sure those rules and policies are implemented in the w
intended and according to the law. For example, lawyers draft legislation a
corporate policies, consult with interested parties, and negotiate prelimina
and final versions of these documents. They write rules to govern the leg
profession, such as the Federal Rules of Evidence, the Federal Rules of Civ
Procedure, and the Model Rules of Professional Conduct. They craft t
platforms of political parties and represent the interests of the United Sta
and its citizens and corporations in dealing with foreign governments, cit
zens, and corporations. Lawyers also hold senior management and execut
positions in private, public, and nonprofit organizations, in law firms, and
government agencies.45 They act as directors on corporate and nonprofi
boards and frequently serve as elected officials.
Lawyers also employ their specialized knowledge about the law to compl
with the legal rules and processes their clients' or causes' needs demand. F
44. The ABA Model Rule of Professional Conduct 2. 1 explicitly states that "a lawyer may refer n
only to law but to other considerations such as moral, economic, social, and political factor
that may be relevant to the client's situation."
45. The MacCrate Report lists effective "organization and management of legal work" as on
the ten fundamental lawyering skills. MacCrate Report, supra note 7, at 199-202. Althou
lawyers often have need of business skills beyond simply managing legal work or a legal offi
many of the broad skills that the report lists in this category are readily transferable to oth
business environments.

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example, they ensure that contracts and corporate documen

governing laws. They conduct due diligence for mergers an
ensure that all corporate papers are in order. They pros
accordance with the rules of the U.S. Patent and Trademark
meet all procedural rules of litigation in timely fashion an
discovery requests.
Lawyers are adjudicators , negotiators , and mediators. They ad
between parties, write judicial opinions, and preside over jur
passing judgment on a particular matter. Lawyers also help
disputes without litigation46 - for example, by helping them
ments.47 They also serve as both court-appointed and "volu
mediators and arbitrators to assist competing third parties i
putes.
Lawyers are educators. As educators, lawyers instruct others a
system, legal institutions, lawyers' services, the legal profession
pretation of statutory and common law. Lawyers teach othe
specialized legal issues through continuing legal education p
lawyers teach junior lawyers the skills and knowledge necess
law practice. Lawyers teach law students the norms and cult
profession as well as the skills and knowledge necessary to
Lawyers instruct the public about legal issues by speaking at
making public comments via the media and the Internet, vis
of schoolchildren and community groups, writing articles f
and more general audiences, and discussing law-related issues
friends, and colleagues.
Lawyering capacities. What sorts of skills and knowledge must

to perform the lawyering functions described above? Althou
to define what lawyers need to know as knowledge or skill
insufficient; it is the ability to synthesize knowledge and sk
require. There are three definable clusters of knowledge
common and critical to the lawyering functions I've descri
capacity, legal reasoning capacity, and communication capaci
Judgment capacity entails the ability to exercise sound and
ment in light of an "integrated understanding" of the comp
terns, conflicting interests, potentially applicable legal the
matic considerations involved in any given legal issue.49 It i
how to discern existing or potential problems based on (usu
46. The MacCrate Report lists "Litigation and Alternative Dispute Resoluti
fundamental lawyering skill. Id. at 191-98.
47. The MacCrate Report defines negotiation as one of the ten fundamenta
at 139, 185-90.
48. This happens both in formal law school environments and through summer associate
programs, clinical programs, and students' part-time legal work.
49. Blasi, supra note 10, at 326. Systematic surveys of the skills used by practicing lawyers
repeatedly reveal "the importance of a lawyer's ability to integrate factual and legal knowl-
edge and to exercise good judgment in light of that integrated understanding." Id.

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knowledge of facts and familiarity with the relevant legal doctrine; how to
investigate the factual, legal, ethical, and practical aspects of problems, includ-
ing undertaking legal research; how to identify stakeholders and investigate
their interests and needs; and how to locate and call upon potential legal and
nonlegal collaborators.'10 A key component of sound judgment capacity is
being able to use all of this information to craft solutions that recognize and
account for the many - often conflicting - factors and interests. To exercise
sound judgment, lawyers must know how to organize knowledge, both legal
and nonlegal, and recognize in new situations patterns that correspond to
knowledge they already possess. '1
Legal reasoning capacity means being able to identify legal concerns, assess
legal risks, and propose legal solutions based on a comprehensive understand-
ing of relevant legal doctrine. This requires knowledge oflegal doctrines and
the ability to evaluate the applicability of various legal theories in light of
factual and pragmatic factors. '2 It demands familiarity with the substance and
procedures of both traditional legal pathways like litigation and alternative
dispute resolution options like negotiation. It requires the ability to locate,
read, parse, and understand the interpretations and precedential value of
relevant cases as well as the interpretations and applicability of relevant
statutes. Effectively interpreting cases and statutes further requires knowledge
of the historical, political, and judicial contexts in which cases were decided
and statutes were passed. Legal reasoning capacity also entails the ability to
draft, understand, and evaluate legal documents, including contracts, per-
sonal documents such as wills, and corporate documents.
Communication capacity involves the ability to communicate effectively with a
wide variety of audiences for a wide variety of purposes.'3 One element of
communication capacity is the ability to both speak and write persuasive legal,
political, and ideological arguments. This involves knowledge of the structure
of legal arguments, comprehension of the rationale for particular legal re-
gimes, and skill at packaging and presenting arguments to different audi-
ences. For lawyers desiring to make their communication official - to file a
brief with the court, for example, or to establish a corporation in a particular
jurisdiction - it also requires knowledge of the appropriate forms of legal
documentation.11 A second - equally important - element of communication
capacity is basic people skills, including listening, empathy, and sensitivity to
the concerns, interests, needs, and biases of the audience. Good people skills
benefit lawyers instrumentally, by helping them to better understand others'
goals and motivations, as well as affectively, by helping them learn to empa-
50. The ABA's most recent comprehensive review oflegal education, the MacCrate Report, lists
problem-solving skills first among fundamental lawyering skills. MacCrate Report, supra note
7, at 141-51.
51. Blasi, supra note 10, at 318-19.

52. This aspect oí 'judgment capacity incorporates three of the MacCrate Report's fundamental
lawyering skills - legal reasoning and analysis, legal research, and factual investigation.
MacCrate Report, supra note 7, at 138-39, 151-72.
53. See id. at 172-76.
54. Sec id. at 174-75.

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thize with others, and thus better understand how other

tions, construct values, and perceive society at large.55
The Normative Component

In addition to the functional element, there is a norma
thinking like a lawyer. It defines how lawyers think an
professional norms. Like other professions, the legal pro
values, culture, and ideology that inform its members' th
actions. In the legal profession these norms enjoy parti
They are enshrined in codes of professional responsibility
lawyer must pass a character examination, typically in th
sional responsibility exam, to ensure that he is familiar
norms and able to comply with them. Violating a profess
lawyer to discipline; blatant violations can result in evicti
sion. Consequently, lawyers always approach situations ag
of the legal profession's culture and norms.
Another aspect of the normative component is recogn
social responsibility being a lawyer entails. As David Barn
"inextricably tied to social action and the application of p
responsibilities do not end with their duty to a particular cl
a duty to society at large to uphold the rule of law
application. This duty stems from their unique position
implementation and application of laws. Law is an inheren
sion; every application of the law involves an interpretati
and norms of our society should be.
The normative component of thinking like a lawyer en
most a comprehensive understanding of the role of lawyers,
our society. It demands knowledge of and facility with the r
responsibility, including comprehension of why they exis
they serve. It includes being able to identify, recognize
potential breaches of professional norms and values.57 I
ability to work effectively within the confines of professio
address problems and resolve legal issues.
In conclusion, there are four elements to thinking like

capacity, legal reasoning capacity, communication capacit
sion of professional norms and responsibilities. Each of t
both knowledge and skills aspects. Now the purpose of law
clearly stated: to teach prospective lawyers the knowledg
to exercise sound judgment, develop sound legal reasonin
55. Carrie Menkel-Meadow, Narrowing the Gap by Narrowing the Field: W

MacCrate Report - Oí Skills, Legal Science and Being a Human Being
619-20 (1994).
56. Freedom to Do What? Institutional Neutrality, Academic Freedom, and Academic Responsi-
bility, 43 J. Legal Educ. 346, 350 (1993).
57. See MacCrate Report, supra note 7, at 140, 203-07 (listing "recognizing and resolving ethical
dilemmas" as one of the ten fundamental lawyering functions).

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nicate effectively, and function at all times in accordance with professional

norms and responsibilities.
Law Schools' Current Practices
How does what is actually happening in law schools today compare

what the purpose of law school suggests we should expect to see occur
The two aspects of law schools' practices with direct impact on the teach
students to think like lawyers are pedagogy - what occurs in faculty-st
interactions both in and outside of the classroom - and curriculum - course
content, diversity of course selection, and required courses.58 In this sect

examine law schools' current pedagogical and curricular practices. I f
present the expectations raised by the purpose of law school, as I have def
it. Then I review law schools' current practices, pointing out where the school
are meeting expectations and where they are failing to do so.
Before I begin, it is important to note that few empirical studies have b
done on law school practices. Much of the evidence for what law sch
actually do is anecdotal, but the anecdotal observations are remarkably con
tent. Although individual law schools will vary to some degree, my compo
picture of a law school should be recognizable to nearly every law student
indicative of most students' experiences.
Pedagogy
Expectation
The four components of thinking like a lawyer - Judgment, legal reason-
ing, communication, and comprehension of professional norms - demand a
highly interactive pedagogy. Because those elements are abstract and com-
plex, students cannot learn how to think like lawyers simply by reading a
casebook or listening to a lecture about what lawyers do. They need to actively
grapple with identifying and evaluating complex legal problems, practice
communicating to a wide variety of audiences, and receive extensive feedback
on their efforts. So we should expect to see assignments and classroom
exercises challenging students to develop their judgment, legal reasoning,
and communications skills. We should expect to find reading assignments
that provide students the necessary background in the role of law and lawyers
in our society, and in legal doctrine and how it developed. We should also
expect to witness classroom activities and assignments that challenge students
to ground their identification and resolution of complex legal problems in
both historical and pragmatic contexts.
58. A third practice at many law schools is extracurricular activities. Law schools often expect
students to develop judgment capacity and communication capacity through participating in
extracurricular activities such as journals, moot court teams, and law societies. However, the
availability of extracurricular activities, as well as their intensity, depth, and preparatory
value, varies greatly. Students have limited access to extracurricular activities; only a relatively
small percentage of students, for example, have the opportunity to serve on a law journal or
law review. Thus, extracurriculars are an insufficient mechanism for law schools to rely on to
achieve their purpose. Furthermore, the very term extracurricular implies that law schools view
such activities as additional to, rather than a fundamental part of, students' law school
experiences.

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64 Journal of Legal Educa tion
Since using these pedagogies requires a significant faculty co

should expect to find law teachers expending a significant p
time on preparing lessons, interacting with students, and offerin
both students' abilities and their grasp of historical, contextua
materials.
Since the mechanisms used to assess students' performance also should

reflect the components of thinking like a lawyer, we should expect to observe
students being tested on their ability to exercise and defend their judgments,
on their capacity to understand and work with legal doctrines and different
sources of law, on their facility at communicating both orally and in writing
with a number of audiences, and on their capability to recognize and effec-
tively handle situations that raise issues of professional responsibility.
Reality
Faculty-student interaction and classroom activities. Do law schools meet

such expectations of faculty-student interaction and classroom activities? Yes
and no. Although some practices contribute to the engaged, interactive class-
room environment that thinking like a lawyer demands, most law schools'
current practices detract from their ability to provide such an environment.
Furthermore, although classroom instruction effectively prepares students to
analyze and distinguish cases, often this is accomplished at the expense of
instruction in other necessary lawyering capacities.
The standard law school class is large, limiting in-class opportunities for
meaningful faculty-student interaction. First-year classes almost uniformly are
taught in large sections. Upper-level seminars, while becoming more com-
mon, are still not the norm. Large classes, ranging in size from 50 to more
than 200, frequently keep students and faculty from getting to know each
other well. Nevertheless, students' success in securing such elite positions as
clerkships and fellowships is heavily dependent on faculty recommendations.
The predictable result is that the louder, more confident students jockey for
the teacher's attention; the less loquacious or less self-assured students end up
participating less, meaning they have fewer institutionalized opportunities to
interact with their teachers and classmates.59 Large classes also protect unpre-
pared students: the larger the class, the less likely any one student will be
called on. Furthermore, since teachers are unable to monitor student activity
in large classes, students can - and often do - cut class, come to class unpre-
pared, or disengage from the classroom discussion for an extended time,
without concern for immediate repercussions. Consequently, few law students
actually experience the active in-class engagement that the purpose of law
school demands.
The Langdellian case method remains the predominant pedagogy at Am

can law schools, particularly in first-year classes: students read judicial
59. Studies showing that women, on average, participate less frequently in class and perfor
well academically in law school than men raise the concern that this classroom dynamic
disproportionately negative impact on women. See Sarah Berger et al., "Hey! There's
Here!!" 73 N.Y.U. L. Rev. 1022 (1998) (summarizing and analyzing five studies of gen
differentiated performance, participation, and interest in law school).

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sions, usually appellate ones, and the teacher questions them about the facts,
principles, and theories behind those decisions. The goal is to teach students
how to analyze a case in order to ascertain the doctrinal and theoretical
justifications for its holding, and thus to comprehend the case's precedential
value and its applicability to different fact patterns. The case method is quite
successful at doing that, but it does not offer students the historical and
contextual grounding lawyers require, nor does it engage students in practic-
ing skills other than analyzing and reasoning from cases.
Law teachers regularly use some version of the Socratic method in conjunc-
tion with the case method. They pose questions to students that challenge
students' assumptions and interpretations, often leading them down the
wrong path intentionally to demonstrate the fallacy of a line of reasoning. The
goal of the Socratic method is to hone students' reasoning skills through
active engagement with the teacher - or observation of another student's
active engagement. Traditionally teachers called on students with no warning.
Nowadays, more commonly, they inform certain students in advance that they
will be called on, or they mix cold-calling with requests for volunteers. Also
common is allowing a student to pass if the student is called on without
warning and is unprepared. A 1996 survey of law faculty revealed that over 90
percent use the Socratic method in first-year and upper-level large classes tor
an average of 53 percent of class time. Sixty-seven percent use the Socratic
method in seminars, and 54 percent use it in "skills courses," although it is not
the primary way faculty and students interact in small-class settings/'0
Lecture is also a dominant law school pedagogy: 94 percent of faculty
lecture in upper-level courses, 82 percent in seminars, and 86 percent in skills
courses, for anywhere from one-fifth to one-third of class time.(il
Pedagogies other than lecture or Socratic dialog are far less common. In
large first-year and upper-level courses, less than one-third of faculty use
alternative pedagogies, and they do so for less than 10 percent of class time.'12
In sum, there is little open conversation in class among faculty and stu-
dents, and thus little feedback to students, except for those few who are called
upon or who volunteer to participate. Combined with large class sizes, which
ensure that a student will be called on at most a few times during a semester,
the result is an abundance of passive learning. Students generally receive
information from books, lectures, or observation of another student in Socratic
dialog rather than construct knowledge and develop skills through active
engagement.
Faculty emphasis on teaching. Law schools generally fail to meet expecta-

tions about teaching. They neither offer incentives for good teaching nor
even define it. The only consistent feedback on their teaching that law
60. Steven I. Friedland, How We Teach: A Survey of Teaching Techniques in American Law
Schools, 20 Seattle U. L. Rev. 1, 27 (1996). Law teachers who used the Socratic method did so
lor only 26 percent of the time in seminars and only 12 percent of the time in skills courses.
61. Id.
62. Id. (noting that 62 percent of faculty use small groups in upper-level classes, but on
percent of the time).

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teachers receive comes from end-of-term student evaluations

law schools offer little, if any, teaching support to their facult
encourage faculty to focus primarily on scholarship - resear
and publishing - and they create, through the tenure proc
disincentive for faculty to expend more than minimal energ
decisions on hiring, promotion, tenure, and salary, scholarsh
est factor; significant publications more than make up for
teaching.114
Little pedagogical direction is available even for interested faculty, despite
the fact that law teachers typically have had little exposure to learning theory.
Few schools provide teaching workshops, much less require that their faculty
attend. Although there are some postgraduate programs designed to help law
faculty develop their teaching abilities, only a few people attend them. For
example, only a very small minority of law professors attend the annual three-
day AALS Workshop for New Law Teachers or the periodic Conference on
New Ideas for Experienced Teachers.65 Consequently, faculty tend to model
their teaching styles on their own professors and mentors, replicating in
today's classes the teaching methods of earlier generations.06
Assignments. Law schools demonstrate mixed success in meeting the ex-

pectation of reading assignments that provide students with a foundation in
the role of law and lawyers in our society, and in legal doctrine and how it
developed.
Law schools still rely primarily on casebooks - introduced by Langdell in
the late nineteenth century - for reading assignments. Like their predeces-
sors, modern casebooks consist almost entirely of appellate opinions even
though most legal disputes never appear in court and many courts of limited
jurisdiction do not rigidly follow precedent. The focus on appellate opinions
obscures the fact that lawyers' role in shaping cases is just as important as
precedent, if not more so, to a judge's decision. Unlike the earlier casebooks,
which contained nothing but judicial decisions, modern ones do include
selections from law review articles, directive questions, limited commentary,
and occasional historical and political background materials.67 Such material
does help to put judicial decisions in context, but in most casebooks it is
heavily edited and relatively sparse. Furthermore, the most substantive com-
mentary offers theoretical perspectives on cases' doctrinal value and theoreti-
63. The validity of" course evaluations as a barometer of teaching ability is questionable. Typically
students fill out the evaluations during the last few minutes of one of the last classes of the
semester, before they take finals or receive grades. Consequently, when students fill out
course evaluations, they are not in the best position to assess the teacher's effectiveness.
64. See John D. Copeland & John W. Murryjr., (Petting Tossed from the Ivory Tower: The Legal
Implications of Evaluating Faculty Performance, 61 Mo. L. Rev. 233, 241 (1996).
66. Alt hough 90 percent of law school faculty say they choose their teaching techniques because
they believe they are most effective, 59 percent also admit that being comfortable with a
technique is important to their pedagogical choice, and 32 percent explicitly believe that
learning a technique in law school affects this choice. Friedland, supra note 60, at 31.
67. Weaver, supra note 22, at 566-72.

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Asking the Lost Question: What Is the Purpose of Lata School ? 67
cal justifications for or criticisms of judges' decisions. Rarely does any com-
mentary give students a broad contextual background for judicial decisions or
any insight into lawyers' actions.68 Furthermore, students frequently read only
the cases and skip the other materials, confident that class discussion will
almost certainly revolve around the facts and principles of cases, not the
casebook's selected theoretical commentary.
In many courses, to be sure, casebooks are not the sole source of reading
material. It is becoming increasingly common for teachers to put together
reading packets containing law review articles, newspaper articles, and other
commentary on cases and legal doctrines. Such packets are a good step toward
giving students the kind of contextualized understanding that thinking like a
lawyer demands and that casebooks lack. But the very fact that these materials
are supplemental to a casebook lends them an implicit air of inferiority;
students may think that if the materials were truly important, the casebook
editors would have seen fit to include them. A teacher can, of course, amelio-
rate this message of inferiority by giving the packet materials at least equal
airtime in class or by not assigning a casebook at all. However, given the
prominence of casebooks in law classrooms and the emphasis placed on them,
particularly during the first year, students may feel shortchanged when teach-
ers focus on reading packets instead.
Assessments. Law schools generally fail to meet expectations regarding

assessments. Because of the low level of student-faculty interaction, feedback
and assessments typically come through grades - usually based on one exami-
nation at the end of the semester. Modern law school exams still resemble the
exams Langdell gave in the 1870s. The two most common types of questions
call for rule application and issue spotting.6-' Occasionally a teacher require
or allows a paper instead of an exam, but it is rare that speaking in class counts
toward students' grades or that there is more than one graded assignment
Students typically do not get their exams or papers back, or receive any written
or oral comments about their work. Although students usually can ask to se
their exam or paper after receiving their grade, they typically will find few, if
any, marks on the pages. Large classes contribute to this situation; teachers
have to grade so many exams or papers that they can spend only limited tim
on each one. For the most part, assessment of law students neither tests the
on the many-faceted capacities they will require as lawyers nor gives them
significant feedback on their performance.
Curriculum
Expectation
The four components of thinking like a lawyer necessitate that the curricu-
lum include a broad range of content. To be able to identify, investigate, and
68. Even when such materials are available, many law teachers only examine them in class from
"a traditional legal perspective, i.e. the legal structures or principles they involve." LeLeiko,
supra note 6, at 507. This narrow approach limits students' ability to gain a contextualized
understanding of a body of doctrine and how it relates to other legal doctrines, to other
disciplines, and to societal concerns. Weaver, supra note 22, at 570-71.
69. Weaver, supra note 22, at 577. Policy questions are becoming more common as well. Id.

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resolve legal problems, students must have a basic understan

law and statutory legal doctrine, including both the eleme
doctrines and the historical, political, ideological, and prag
on doctrinal development. To effectively act in accordance w
norms, students must have basic knowledge of the role of la
our society, the rules of professional conduct, and the reason
They must also have opportunities to practice judgment, leg
communications skills.
In a course catalog we should expect to see, at a minimum, courses on le

doctrine, doctrinal evolution, and legal history and philosophy; courses
professional responsibility and lawyers' roles in society; and courses empha
ing skills development.70 Furthermore, we should expect to find that t
required courses provide students the background historical, contextual,
doctrinal knowledge, and the understanding of the professional legal cultu
that they need to exercise sound judgment, legal reasoning, and commun
tions skills when approaching legal problems.
Reality
Course selection. Law schools do a reasonably good job of providing

doctrinal knowledge and exposure. The curriculum consists mainly of doctri-
nal or "substantive" courses. According to a 1997 survey of new courses that
law schools added between 1994 and 1997, over two-thirds of the new courses
addressed substantive areas of the law. Less than one-third focused on lawyer-
ing skills, legal institutions in context, or the role(s) lawyers play in society.71
Although doctrinal courses are typically heavily corporate-focused, courses
addressing issues of social justice are becoming more common. The 1997
survey revealed that a majority of new doctrinal courses introduced in the mid-
1990s addressed topics related to social justice, such as family law, human
rights law, environmental law, healthcare law, constitutional law, criminal law,
discrimination law, and labor and employment law.72
Law schools do much less well, however, at instruction in the other skills
and knowledge lawyering requires. In fact, the ABA's most recent assessment
of legal education, the MacCrate Report, concludes that "relatively few law
students have exposure to the full range of professional skills offerings."73
70. Many of these content areas can, and should, be covered in one well-designed course. Thus,
even schools with limited faculty resources can offer students the necessary curriculum.
71. Deborah Jones Merritt & Jennifer Cihon, New Course Offerings in the Upper-Level Curricu-
lum: Report of an AALS Survey, 47 J. Legal Educ. 524, 537 (1997). The survey asked schools
to identify courses with writing or skills elements. Responding administrators designated just
over 40 percent of courses as having some sort of writing or skills element, but it is unclear
from both the survey questions and the results what these elements are or how comprehen-
sive they are. Id. at 534-35.
72. Id. at 537. The survey found, however, that only 8.2 percent of all new courses were attributed
primarily to student requests. Id. at 533. It also found that nearly two-thirds of courses added
in response to student demand are taught by adjuncts and non-tenure-track faculty, while
slightly less than two-thirds of other new courses were taught by tenure-track faculty. Id. at
534. These figures indicate that law schools place low value on meeting student interests.
73. MacCrate Report, supa note 7, at 240. The report further found that "clinical programs are
generally available to only 30 percent of law students at schools where live client clinics are
offered" and that "professional skills training occupies only nine (9%) percent of the total
instructional time available to law schools." Id.

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For example, although all law schools require students to take a course on
professional responsibility, typically worth two credits, there is little systematic
effort to inculcate a sense of professional responsibility among students. The
course usually employs the case method to instruct students on the rules
tested on the ethics portion of the bar exam, instead of challenging students
to actively explore the complex ethical issues lawyers regularly confront in
practice.74 It typically focuses not on "the social responsibilities of the lawyer or
the profession, but rather the legal responsibility of the individual practitioner
vis-à-vis his clients and the ethical considerations he 'ought' to take into
account in properly exercising his private role as an attorney."7"1 Tenured faculty
generally decline to teach the professional responsibility courses, leaving
instruction on lawyers' public roles to outside lecturers and junior faculty.™
Furthermore, the rule orientation of the case method ensures that legal ethics
and professional norms are rarely discussed systematically in doctrinal courses.77
The resulting message is that comprehending lawyers' public responsibilities
is not a complex and real concern that merits much of students' attention.
Skills are also shortchanged in the law school curriculum. The two ways in
which standard curricula do directly address skills - legal writing programs
and clinical programs - demonstrate law schools' general disregard for skills
training.
Legal writing courses emerged in the middle of the twentieth century in
response to calls for more egalitarian legal education focused on professional
skills.78 However, as writing programs matured, competing purposes, compet-
ing conceptions of how to implement programs, limited resources and the
unwillingness of most full-time faculty to supervise student writing have lim-
74. Philip G. Kissam, Lurching Towards the Millenium: The Law School, the Research Univer-
sity, and the Professional Reforms of Legal Education, 60 Ohio St. L. J. 1965, 2004-05 (1999).
Out of 31 new professional responsibility courses added at law schools between 1994 and
1997, only one-third explored ethical issues encountered in particular types of practice and
less than 50 percent included a writing or skills component despite the fact that " [p] rofessional
responsibility requires close examination of law practice." Merritt & Gihon, supra note 71, at
559.
75. James P. Rowles, Toward Balancing the Goals of Legal Education, 31 1. Legal Educ. 375, 386
(1981).
76. MacCrate Report, supra note 7, at 246. The fact that full-time tenure-track faculty regularly
shun professional responsibility courses helps create the impression that such courses are less
important than doctrinal ones. Id. The MacGrate Report recognizes this problem and
recommends that "law schools should assign primary responsibility for instruction in profes-
sional skills and values to permanent, full-time faculty . . . Id. at 245.
77. Kissam, supra note 74, at 2003-05.
78. Id. at 1986. Advocates of legal writing saw an opportunity for students to use writing "as an
experience-based learning process to acquire legal knowledge and a variety of skills." Id. at
1987. Initially, in response to these demands, writing programs were "designed to provide
writing opportunities that would be different from the writing of examinations, would
involve much individualized feedback from more experienced writers and would entail
much rewriting, especially of memorandums that attempt to resolve client problems." Id. at
1986.

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ited their efficacy and value.79 Today most law schools addres
through one required first-year writing course"0 and perhaps
required seminar paper or research paper. Writing typically
rately from doctrinal subjects, signaling "that legal writing is
and independent from legal analysis" and that "the only rele
writing' is as a finished product.""1 Writing supervisors tend not
faculty.82 Instead, upper-class students, recent graduates, and adju
ing faculty commonly instruct a tutorial group of ten to twenty
use of the library and legal research and supervise limited writing
on artificial problems. The additional fact that writing courses
less academic credit than doctrinal courses signals that writin
important than understanding doctrine.**
Clinical legal education became common in law schools begi
1960s. The general purpose of clinical education is to introdu
the factual, procedural, ethical, and human complexities of pr
ing dealing with clients, working with other attorneys, navigatin
tions, and discerning legal problems from complicated and inco
Students work in legal aid clinics and represent actual clients,
gent persons, under the guidance of a clinical instructor who
lawyer.
79. Id. at 1986-87. For example. Harvard Law School requires that all students complete a term
paper (commonly called the third-year paper) by the end of their third year. The course
catalog encourages students to start this paper during their second year, work on it over the
course of at least a year, and spend one-quarter of their time working on it in the semester in
which they receive credit for it. Yet the average third-year paper earns students only one or
two credits out of the 52 second- and third-year credits required to graduate, far less than
one-quarter of the total required credit hours. This disjunction between the amount of time
suggested and the minimal credits received often discourages extensive, advance work on
papers, particularly as students are faced with a course load of 10 to 15 credit hours per term.
80. Often the course combines writing with legal research, further limiting the time focused on
writing skills.
81. Kissam, supra note 74, at 1989 (noting that first-year students, at whom most legal writing
courses are aimed, are least capable of independently perceiving how to use legal writing "to
acquire and generate substantive and procedural legal knowledge"). Other skills courses
suffer this same fate. "What is perhaps most problematic about legal methods courses is that
the novice student often concludes that these methodological skills are somehow discrete
because they are taught in a doctrinal vacuum." Linda Levine & Kurt M. Saunders, Learning
to Think Like a Lawyer, 29 U.S.F. L. Rev. 121, 132 (1994).
82. The Merritt and Cihon survey found that tenure-track faculty teach 56.1 percent of new-
writing or skills courses and are "as likely to teach new writing or skills courses as other new
courses." Merritt & Cihon, supra note 70, at 535. But the definition of writing or skills courses
is unclear. The survey appears to count any and all courses which the responding administra-
tor indicated had some unspecified amount of writing or skills elements as a writing or skills
course. See id. at 534-35.
83. Kissam, supra note 74, at 1990. Law schools' persistence in grading student writing accor
to a traditional academic grading scale creates tension in the relationship betwee
student and the writing mentor and greatly increases the amount of work for the instru
Id. át 1991. This tension diminishes the incentive for collaborative work, constructive and
sympathetic rather than negative feedback, and repeated revisions of the same document. Id.
at 1991-92.
84. Kissam, supra note 74, at 1993-97.

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Asking the Lost Question: What Is the Purpose of Laxo School? 71
Although clinical education can introduce students to complexities the

case method only hints at, law schools resist clinical education and have
affirmatively limited its growth and its impact.'sr' First, schools typically keep
clinical education "separate, even invisible, from the rest of legal education as
a matter of curriculum, space, and time, thereby preventing contamination of
the university law school's basic concepts and structures. "Sh Clinical courses
are reserved for upper-level students and sometimes restricted to third-years.
Many clinics operate off campus, or on the periphery, often in dingy, utilitar-
ian quarters.
Second, law schools tacitly and subtly suggest that clinical education has a
second-class status in the academy. For example, while most doctrinal classes
focus on corporate and institutional legal problems, most clinics serve indi-
gent clients who are experiencing legal problems in their personal lives. The
disconnect between classroom lessons and clinical work, coupled with the
predominance of classroom studies, signals to students that the lessons learned
in the clinic are less important than those learned in the classroom. Clinical
work typically earns fewer academic credits than traditional courses, even
when students spend more hours on clinical work than on classroom work.
Lastly, most law schools reserve the benefits of tenure for classroom faculty,
again indicating that clinical teachers do not merit equal status.*7
Required courses. The required curriculum in most law schools does not
provide students the background knowledge of history, sociopolitical context,
doctrine, and the professional culture that they need in order to exercise
sound judgment, legal reasoning, and communications skills when approach-
ing legal problems. It usually consists solely of a smattering of first-year
doctrinal courses - typically torts, property, criminal law, civil procedure,
constitutional law, and contracts - plus token courses in professional responsi-
bility and legal research and writing. Many schools also recommend that
students take additional doctrinal courses such as corporations, tax, and
accounting.
In short, many of law schools' current practices are holdovers from the
nineteenth centuiy that fail to achieve the twenty-first-century purpose of law
school - to teach a heterogeneous group of students how to think like lawyers.
Bridging the Purpose-Practice Divide

It is plain that many of law schools' current practices not only fail to support
but in fact actually undermine law school's current purpose. To be truly useful
for the twenty-first century, then, law schools must free themselves of the
shackles of the outmoded nineteenth-century practices that have become so
85. Id. at 1997.
86. Id. See also Levine & Saunders, supra note 80, at 130 ("Although clinics have been a majo
innovation to the standard law school curriculum, they remain ancillary to the case method
and doctrinal course work.").
87. Id. at 1997-98.

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entrenched as to be nearly invisible. This is easier said than

reasons why law schools operate as they do, and any attempt
schools' practices must take account of them. Therefore, befor
changes to law schools' practices, we must first understand the ob
path - the reasons law schools are the way they are today.
Obstacles to Change
Law schools' practices are based on tradition, not on a regula

and reassessment of the needs of the public, students, and th
sion. That these practices persist is largely due to a combina
tional inertia and financial disincentives for change.
The entrenchment of the case method is a prime example. Ev
of challenges from the legal profession itself, like the AALS
Committee's 1944 effort to "isolate legal skills and so to articu
ales underlying legal education," the case method has not falle
The few law schools that undertook broad experiments w
pedagogies during the twentieth century inevitably returned to it
case method remains omnipresent; it is the primary pedagogy at v
American law school, including all of the elite schools.89
The case method reigns supreme in spite of suffering near
criticism since its inception and in spite of "the fact that Lan
tion for developing and using [it] - his belief that law is a scie
reduced to fundamental rules through scientific analysis - h
been repudiated."90 What explains the case method's persiste
recognized severance from its theoretical moorings?
There are several reasons for the method's continued suprem
case method's central role in justifying law schools and profe
bar has entrenched its position. Law schools have made significant
the last century to distinguish themselves from trade schools.91 T
of law as a science, a justifiable branch of academic study, wa
schools' ability to make that distinction. The case method tr
training into an academic pursuit and law into a profession. La
still blindly cling to the misperception that it is the case met
them intellectual and professional credibility. This is a classi
institutional inertia.
Second, the case method makes financial sense. It allows for a "low-cost,
high-return law school."9'2 It made it possible for law schools to be financially

90. Id. at 545-46. Even emerging pedagogical techniques, such as the problem method, tend to
be "consistent with Langdell's basic assumptions about how law should be taught." 1(1. at 543.
In other words, like the case method, emerging pedagogies approach law as a science best
studied through books and best understood by reference to precedent.
91. Id. at 529. Advocates of apprenticeship viewed law as a craft that could best be learned by
doing, rather than by listening to lectures about it. Id.
92. Costonis, supra note 25, at 161.

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Asking the Lost Question : What Is the Purpose of Law School? 73
feasible at a time when they were trying to differentiate themselves from both
the impersonal, passive learning of lectures and the personal but nondoctrinal
instruction of apprenticeships.93 Today the case method still enables
semipersonalized instruction of large numbers of law students at a relatively
low cost, and at a relatively high student-faculty ratio.94
Institutional inertia and financial disincentives also explain the persistence
of other practices that no longer support law school's current purpose. For
example, law schools themselves face significant financial and structural disin-
centives to change their practices. Instruction requiring greater faculty-
student interaction would compel faculty to spend much more time on
teaching than they do now. A much higher faculty-student ratio is necessary to
preserve the faculty's ability to spend time on research - an activity that brings
great acclaim to the host law school - and at the same time to encourage and
facilitate more time-intensive pedagogies. Hiring more teachers is costly, as is
the less desirable alternative of shrinking the student body.95 Furthermore,
unless all law schools act in concert, a school that places greater emphasis on
teaching ability in tenure decisions may not be able to attract many of the
productive scholars whose star power brings acclaim, alumni donations, and
students. This may explain why elite law schools stress scholarship "as the most
important element in almost everything they do," relegating teaching to
secondary status.96 Even law schools' physical infrastructures pose a constraint
on changing practices. Classrooms designed for large, Socratic, case-method
classes are not easily adaptable to smaller, more intimate groups or to experi-
ential learning. Remodeling would be costly.
In addition to institutional inertia and financial disincentives, structural
disincentives - influences built into the fabric of law schools' behavior - also
constrain law schools' willingness and ability to change their practices. Two
particular are worth mentioning here because of their broad-ranging impa
First, the ABA tacitly approves the standard practices in today's law schools via
its accreditation requirements. Although the ABA requirements do not a
dress pedagogy or curriculum directly, they indirectly influence these de
sions. For example, the ABA now requires accredited law schools to have
93. Id. The case method was such a cost-effective way to educate large numbers of students tha
the late nineteenth and early twentieth centuries law schools were actually profitab
Stevens, supra note 13, at 63.
94. Certainly many law faculty do believe that the case method is "the proper way to teach law
and adequately serves law schools' fundamental educational goals of teaching students ho
to analyze cases critically and think like lawyers. Weaver, supra note 22, at 544. The issu
however, is not whether the case method has, or at any time had, intrinsic pedagogica
value - I would argue that it does - but whether it should continue as the primary method
teaching today's heterogeneous students the cognitive skills that today's lawyers require. W
cannot begin to consider whether or not the case method should remain until we understan
the purposes law schools need it to serve today. Since there has been no such systemat
exploration, we can best understand teachers' admiration of the case method as located in it
historical role and purpose, rather than its present role and purpose.
95. Frank R. Strong, The Pedagogic Training of a Law Faculty, J. Legal Educ. 226, 232-33 ( 1 973
These financial disincentives are often magnified for public universities, in which the size
the student body typically determines and justifies the size of the budget.
96. Butler, supra note 12, at 266.

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student/faculty ratio no greater than twenty to one.97 Despite

of adjunct and part-time faculty, the ABA does not include them
that ratio. Most full-time faculty spend only ten to twelve hours
classroom. This combination of a low faculty-student ratio and
law professors actually spend teaching contributes to large c
minimal attention to pedagog)7. Second, law schools are part o
and standard university tenure processes frequently emphas
over teaching ability.
Suggestions
Despite these obstacles, change is indeed both possible and critical. Unless
law schools do adapt, they may soon find they have outlived their usefulness.
But attempts to bridge the gulf between law school's purpose and law schools'
practices must recognize the influences of institutional inertia and both
financial and structural disincentives. Change will incur significant costs, both
financial and personal, as law schools reconstruct themselves to better achieve
their current purpose. Given these constraints, change must be incremental
and evolutionary.
Following are several suggestions of ways to begin bridging the purpose-
practice divide. These are not meant to be a complete list of the changes law
schools should undertake, nor are they meant to limit the scope of options
readers might imagine. Instead they offer a starting point, an example of the
way creative thinking within the purpose-practice framework can help resolve
the problems of legal education and, perhaps, ameliorate the crisis in the
legal profession as well.
Make sure law students have sufficient foundation in legal institutions, the
role of law, and the role of lawyers. As the discussion of lawyering functions
and capacities made apparent, a solid grounding in the history, operation,
and impact of legal institutions, in the role of law, and in the role of lawyers is
necessary for all lawyers. Students must acquire this foundation either before
or during law school. It is critical not only to understanding legal doctrine and
the legal profession, but also to choosing a career path in the law. Following
are a few ways law schools can make sure their students are properly versed in
these foundational topics.
Require a prelaw curriculum. Medical schools in the United States require a

premed curriculum; all applicants must take a certain set of courses before
they are eligible to apply for and attend medical school.98 There is no compa-
rable requirement for law students. Requiring a prelaw curriculum would
relieve law schools of some of the financial burden of ensuring that students
have adequate foundation in areas such as the role of law in our society, legal
97. Section of Legal Education and Admissions to the Bar, American Bar Association, Standards
for Approval of Law Schools, Interpretation 402-2 (providing that the ABA may accredit,
under certain circumstances, law schools with a student/faculty ratio up to 30-to-l).
98. See Ronald H. Fishbein, Origins of Premedicai Education, 76 Acad. Med. 425, 426 (2001).

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Asking the Lost Question: What Is the Purpose of Law School f 75
philosophy and legal history, and communication and analytical skills. Like
the premed curriculum, a prelaw curriculum would need to be tailored to the
types of instruction general colleges and universities can, and already do,
provide. It should not, however, be so extensive as to prohibit students from
majoring in any subject, whether directly law related or not, that interests
them.
A prelaw curriculum might also serve as an extra screening mechanism for

law school applicants; taking a set of courses requires a commitment far
greater than filling out an application. Thus, it might help curb the increasing
number of law students who are biding their time while getting what they
consider to be a good general degree. If all law students shared an equally
deliberate focus and interest in the law, students' motivation and learning
might improve significantly.
Redesign the first-year curriculum. The review of law schools' practices demon-
strated that the required first-year curriculum barely broaches the founda-
tional material for thinking like a lawyer, such as professional norms and
ethics, the role of law in society, and the role of lawyers in society. It also
demonstrated that professional responsibility courses generally fail to give
students meaningful exposure to, comprehension of, and experience with the
norms of the legal profession. Given law schools' unique ability to affect
students' perceptions of the legal profession, it is important to socialize
students into the norms of the legal community from the moment they first
arrive at law school. A required first-year curriculum should fulfill this respon-
sibility in a meaningful way.
For example, instead of focusing on standard legal doctrine, case analysis,
and research and writing skills, the first-year curriculum ought to emphasize
legal history, the role of law and lawyers in society, and the norms of the legal
profession. Students ought to learn such foundational materials before they
begin studying legal doctrine or lawyering skills. Additionally, legal doctrine
and skills need not be learned in isolation from professional responsibility
issues. If all three topics appear simultaneously as a cohesive unit within the
confines of one course taught by a full-time tenure-track teacher, students can
actively experience and grapple with the interconnections between knowl-
edge, skills, and norms that, as practicing lawyers, they will encounter on a
daily basis.
Improve teaching in law schools. Improved teaching can and should lead to
more meaningful assessment mechanisms, greater student-faculty interaction,
greater engagement of students in the classroom and with reading materials,
and more meaningful and productive in-class, out-of-class, and research as-
signments. Particularly in the isolationist and individualistic university envi-
ronment, pedagogical changes will not be effective if they are imposed on
faculty. Instead, law schools ought to facilitate the faculty's exposure to and
understanding of the benefits of alternative pedagogies and assessment mecha-
nisms, and then enable the faculty to pursue those pedagogies. Following are
some concrete suggestions of ways law schools might accomplish this.

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Give faculty incentives to focus on teaching. The institution

scholarship over teaching is one of the biggest obstacles
change, yet it is also one over which law schools have consid
There are numerous relatively low-cost and high-return ways for
shift this incentive structure. First and foremost, law schools must define
standards for teaching against which professors' and applicants' teaching may
be measured. Meaningful standards that are enforced (through hiring or
promotion decisions) will force law faculty to attend to their teaching abilities
while simultaneously giving them a tangible goal to strive for in their teaching.
Additionally, law schools could condition summer research stipends on atten-
dance at teaching workshops and creation of new lesson plans. Law schools
could recalibrate the hiring and tenure processes to increase the importance
of good teaching. Law schools could also provide, and require attendance at,
periodic teaching workshops or faculty roundtables focused on teaching and
learning theory.99
Establish minimum practice requirements for tenure-track faculty. The fact that the
average practical experience of tenure-track faculty is quite low has significant
implications for law schools. Academic lawyers (i.e., law professors) tend to
fashion academic lawyers, even though very few law graduates remain in
academia. Furthermore, many law teachers have spent little time practicing
the skills and knowledge about which they instruct students.100 Consequently,
they have minimal experience with the complex problems their students will
face every day as practicing lawyers. Requiring time spent away from the
academy before or during a teaching career would help to correct this imbal-
ance. Law teachers who have had practice experience would be better able to
incorporate the complexities of practice into their classes, instead of teaching
solely from observations about the law made from a comfortable distance.101
A practice requirement should not be construed narrowly. Law schools and
law students will benefit most when faculty have practice experience across a
99. Remedying the dearth of organizational and institutional forums in which to discuss
pedagogy and teaching could also greatly contribute to increased faculty attentiveness to
these topics. At present only one American journal, the Journal of Lrgal Education, is
dedicated to these topics. Other American law journals publish articles about teaching only
sporadically, at best.
100. This is particularly problematic in the realm of professional responsibility, where the
complexities of law practice frequently challenge adherence to professional norms. Teach-
ers with minimal practice experience will have neither the exposure to, nor the facility in
dealing with, the sorts of ethical dilemmas practicing lawyers regularly encounter.
101. This practice requirement could be instituted in any number of ways. For example, law
schools could require that applicants have a minimum of a certain number of years of law
practice before being eligible for full-time faculty positions. Alternatively, schools could
require their faculty to work on a set number of actual law practice projects (like lawsuits,
negotiations, or transactions) each year, for private clients, the government, legal services
clients, nonprofits, or social causes. Although the potential for conflicts of interest arises
when faculty represent clients, the many faculty who regularly do so effectively, without
compromising their teaching responsibilities, demonstrate that it is indeed possible. A third
option is for law schools to require their faculty to take periodic sabbaticals during which
they must represent clients or causes in legal matters, rather than teach, travel, or conduct
scholarly research.

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broad range of practice settings, legal activities, substantive areas of the law,
and clients, including people, entities, and causes. To maximize the value of a
faculty practice requirement, law schools should encourage faculty to spend
practice time in a context that corresponds with their research and teaching
interests.
Restructure the curriculum and pedagogy to focus on developing students'

lawyering capacities. The current law school curriculum provides extensive
instruction in doctrinal and substantive areas of the law but minimal instruc-
tion in lawyering capacities other than specific aspects of legal reasoning.

Neglect of judgment capacity, communication capacity, and aspects of leg
reasoning beyond case analysis and application results in new lawyers who ar
by and large unprepared for practice. Since effective use of these capacities
depends heavily on knowledge of substantive law and relevant facts, it is
important that students develop these capacities in conjunction with, not
separately from, learning legal doctrine and theory. The current norm is t
teach skills in separate courses from doctrine. Law schools must restructur
their curriculum, and encourage the requisite faculty professional develop
ment, to enable both the skills and the knowledge elements of lawyering
capacities to be taught within the confines of a single course.
For example, a course in contracts could include students' drafting
contract for an actual (or simulated) client. Students could learn corporation
by advising an actual (or simulated) corporation. All such curricular an
pedagogical revisions entail two things. First, they involve an overhaul of th
standard pedagogy, the case method, which is ill equipped to develop lawye
ing capacities other than case analysis and the ability to apply common la
precedent to discrete bodies of fact. Second, they require not only that faculty
receive extensive training in how to conduct such courses, but also that the law
school support faculty - both financially and with other resources such a
teaching assistants or credit toward the tenure scholarship requirement - i
their endeavors to implement this new curriculum and pedagogy.
Improve students' facility with and comprehension of professional norms

Lawyers need a solid grounding in professional norms. Yet law schools provi
minimal instruction in this area. The failure is not due to the schools' lack of
capacity, but rather to a lack of either desire or effort, or both. Since lawyers
must make all of their decisions against the backdrop of professional responsi-
bilities and norms, it is imperative that law schools, where prospective lawyers
first encounter the legal profession, communicate the importance of prof
sional norms to students. Following are two suggestions of ways law schoo
might accomplish this.
Require instruction in professional responsibility in all courses. Part of the prob

lem with current instruction is that professional responsibility is presented in
isolation from other legal topics. It is taught as a separate body of rules, rather
than as an integral part of the daily decisions and activities of lawyers. Requir-
ing all faculty to address issues of professional responsibility in the context of

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78 Journal o f Legal Education
their courses could help counter the implicit message students

about the relevance of professional responsibility and profession
example, in the context of a case analysis a teacher could lead a
the involved lawyers' responsibilities to their clients or of the judg
bilities for dealing with the case. Furthermore, integrating in
professional responsibility into all courses might help engage
find doctrinal instruction alienating because it seems detached
personalities and characteristics of the people involved, the prac
case management, and any historical or political context.
Require pro bono service. Law schools could require all students to
certain number of pro bono hours as a graduation requirement.1
improve students' comprehension of professional norms in at le
First, a pro bono requirement in law school would parallel the e
recommendation that all lawyers spend at least fifty hours per
bono work.103 Inculcating this norm of service in lawyers from
they enter the profession, i.e., when they start law school, shou
larger percentage of lawyers actually complying with that reco
Second, a satisfying experience serving underprivileged clients m
age students to continue pro bono work after they enter the wo
* % * * *
The complaints about legal education are loud, an

legal education are real. They cannot be remedied by
more courses, hiring a few more teachers, or building
These purported solutions implicitly and wrongly assume
need is simply more of the same. Despite the alarmin
persistence of outdated nineteenth-century practices
can change. They just have not gone about change the
The key to change in law schools is to start at the b
fundamental question: why are we here? Not why we
lished, or why were we around fifty years ago, but why
is the current purpose of the institution of law school, an
102. Whether or not to require law students to perform pro bon

much debate. Several American law schools, including Harvard
implemented a pro bono requirement. For further discussi
requirement, see American Association of Law Schools, Learn
www.aals.org/probono/report.html> (last visited Mar. 26, 2002
Pro Bono Priority: By Formally Promoting Pro Bono Service, M
Help Students Live Up to the Profession's Ethical Ideals, Mic
Sabrina A. Hall & Tammy R. Wavle, A Vision for the Future: Man
in Texas Law Schools, Hous. Law., Jan. /Feb. 2001, at 18; Debora
Bono Responsibilities of Lawyers and Law Students, 27 Will
(2000).
An alternative to a pro bono requirement is a requirement ma
take a certain number of clinical courses or credits for graduat
main goal of clinical courses to instill the pro bono ethos, introdu
of providing legal services to the poor is a likely side effect.
103. Model Rules of Professional Conduct 6.1 (2000).

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Asking the Lost Question: What Is the Purpose of Law School? 79
purpose of my law school in particular? Although the purpose of the institu-

tion - to teach students to think like lawyers - is common to all, individual law
schools serve communities with different needs and students with different
needs, skills, and aspirations. Thus, determining the purpose of a particula

law school is just as important as defining the purpose of the institution of law
school. It is only by answering the purpose questions that we can begin to have
a meaningful discussion about what law schools should be doing and why. It
only through regular revisiting of these questions that we can ensure la
school's continued relevance and survival.
Law schools not only can change, they must change. Widespread, loud
relentless student concerns are the law schools' miner's canary;104 they
that something is so direly wrong in legal education that the veiy existe
law schools is threatened.105 Their persistence reveals that the Band-Ai
stop-gap measures that have been tried do not resolve the critical under
problem - that law schools' practices do not adequately reflect law sch
purpose.
Law schools' failure to adapt, to correlate their practices with their pur-
pose, threatens not only the schools themselves, but the legal profession in
general. Lawyers no longer join the legal profession sua sponte, as they did in
the eighteenth and nineteenth centuries. Instead, lawyers today are fully the
products of their law schools. To quote Justice Frankfurter: "In the last
analysis, the law is what the lawyers are. And the law and the lawyers are what
the law schools make them."10*'
104. I borrow this analogy from Lani Gninier & Gerald Torres, The Miner's Canary: Enlisting
Race, Resisting Power, Transforming Democracy (Cambridge, Mass., 2002).
105. I am not the first to express concern that law schools arc becoming increasingly irrelevant.
David Rosenberg has argued that so long as law schools fail to reform themselves in
accordance with "Holmes's ideas about educating lawyers so that they can make useful
contributions to solving pressing questions of public policy, . . . law schools and courts are
traveling a path of increasing social irrelevance and irresponsibility." The Path Not Taken,
110 Harv. L. Rev. 1044, 1044 (1997).
106. Letter from Felix Frankfurter, Professor, Harvard Law School, to Mr. Rosenwald 3 (May 13,
1927) (Felix Frankfurter papers, Harvard Law School library), quoted in Rand Jack & Dana
Crowley Jack, Moral Vision and Professional Decisions: The Changing Values of Women
and Men Lawyers 156 (Cambridge, Mass., 1989).

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Asking the Lost Question: What Is the Purpose of Law School?

Author(s): Bethany Rubin Henderson

Stable URL: http://www.jstor.com/stable/42893787

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Asking the Lost Question:

classroom. Students despair at the lack of faculty guidance on what an

Journal of Legal Education, Volume 53, Number 1 (March 2003)

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in essence, a crisis of morale. It is the product of growing doubts about the

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classrooms at the embryonic stage of his legal career."3 Law

Finding the Source of the Concerns About Legal Education

Typically analysts explain away students' dissatisfaction wi

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Most importantly, all of the blame-theme explanations for

Asking the Lost Question: What Is the Purpose of Law Scho

Discussion about the shortcomings of legal education is futi

9. Peden, supra note 3, at 387.

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as is commonly assumed, but instead entails helping students develop a broad

The Current Purpose of Law School

How Do We Determine What the Purpose of Law School Is ?

school.11 Many individual schools, however, do have mission stateme

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time, was like a professor of philosophy or government; he

15. Stevens, supra note 13, at 4-5.

18. Stevens, supra note 13, at 35-36.

20. Sutherland, supra note 14, at 25.

23. Stevens, supra note 13, at 35.

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concept of providing part of legal training through an institution known as

28. Stevens, supra note 13, at 24.

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this requirement.33 By the 1960s four years of college and thre

35. MacCrate Report, supra note 7, at 105-06.

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The Functional Component

Lawyering functions. Lawyers perform a wide range of f

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example, they ensure that contracts and corporate documen

Lawyering capacities. What sorts of skills and knowledge must

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51. Blasi, supra note 10, at 318-19.

54. Sec id. at 174-75.

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thize with others, and thus better understand how other

The Normative Component

In conclusion, there are four elements to thinking like

55. Carrie Menkel-Meadow, Narrowing the Gap by Narrowing the Field: W

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nicate effectively, and function at all times in accordance with professional

Law Schools' Current Practices

How does what is actually happening in law schools today compare

content, diversity of course selection, and required courses.58 In this sect

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Since using these pedagogies requires a significant faculty co