Thanks to Alan Treleaven for sending me an interesting news item from the US National Center for State Courts (NCSC) that announced ‘the formation of an 18-month study committee that will examine the state of legal education and bar admission processes in the United States along with the decline in attorneys dedicating their careers to public interest and public sector practice.’ The Committee on Legal Education and Admissions Reform (CLEAR) aims to recommend to state supreme courts practical reforms to enhance legal education and diversify bar admission processes by June 2025. Their work will include a review of current legal education structures and content, focusing particularly on:
- Whether law schools are preparing students to be “practice-ready” upon graduation;
- Identifying what is necessary to assess minimum competence to practice law, and identifying alternate approaches to meet such competence;
- Factors behind the decline of public-service lawyering.
Chief Justice Gordon J. MacDonald of New Hampshire summarised the current situation as he saw it:
The American justice system stands at a critical juncture. Our profession is falling short in meeting the public’s needs. There are vast legal ‘deserts’ where too many litigants are forced to confront an unfamiliar legal system without a lawyer. Legal service organizations dedicated to the public interest are unable to recruit and retain qualified attorneys. And, many new lawyers are not ‘practice ready’ upon admission to the bar. These issues contribute to a growing access-to-justice gap and undermine public confidence in our legal system. They must be addressed immediately.
His words are part of what’s almost become a venerable tradition of dissent in the US, sometimes from the most unlikely quarters. In the heart of the Langdellian establishment, Dean Griswold of Harvard Law School wrote in 1967:
For some years now I have been concerned about the effect of our legal education on the idealism of our students. […] They bring to this school a large measure of idealism. Do they leave with less? And if they do, is that something we can view with indifference? If they do, what is the cause? What do we do to them that makes them turn another way?1
In this article Griswold gives us context to his concerns and the dissenting tradition: he notes that the centenary of Langdell’s appointment to Harvard in 1870 was soon to be celebrated; and reminded his readers that the Law School of Boston U was founded by faculty who left Harvard in protest against Langdell’s introduction of the case method. He observed that ‘staff might do better to teach less of the case method and more of the actual cases, the vast majority of which never see a court’; and he advocated the compilation of ‘”cases”, based on office records and experience, so that our students could learn from carefully reproduced real materials what actually goes on in law offices’.2 He also quoted a then-popular text on lawyers by Martin Mayer in which the author observed that US law schools were ‘torn as to whether they are training physicists, engineers or plumbers’.3 The echo of Twining’s famous contrast of Pericles and plumbers is hard to miss.4 And Griswold recognised, as Twining was to do, almost contemporaneously in England, that the surface anxiety betrayed a deeper malaise – what he called the ‘exaltation of rationality over other values which are of great importance to our society’.5
Reading the news item describing the NCSC initiative, it is plain that the Committee’s report will stand in this tradition – one that stretches right back to the original Carnegie Foundation Report on legal education in 1914, and beyond that.6 Indeed Griswold’s unease, made public back in 1967, surely lies behind the Committee’s third bullet point above.
I’d like to make four comments on this. First, if the promised review of current education is to be useful, it should include a comprehensive literature review of aspects of the three bullet points above. Most prior reports focus upon recent professional legal education practices in the States. One that set out comprehensive literature reviews on aspects of professional education would be a hugely valuable scholarly tool, particularly if it’s annotated, or if it’s otherwise a reliable guide to that literature. Let’s hope that NCSC get round to that.
It’s what we attempted to do in LETR in 2011 (see the tab above for all associated documentation).7 In that review of professional legal education in England & Wales the remit of the SRA, BSB and CILEx (as it then was) required a literature review of nine topics.8 Our period of review started with the publication of the Ormrod Review back in 1972 – effectively 40 years back. We gathered and read 2,190 items in a Zotero group reference library. Out of that we wrote our review in nine chapters, a total of 299pp, over 133,000 words. Ten years later, by a country mile, it’s still the largest and most detailed literature review of professional education in any jurisdiction. It wasn’t a comprehensive review of professional legal education: that would have needed far more project resources. We followed our remit and produced extensive commentary and resources on the nine thematic areas.
Second, in our main report we argued that it was an obligation of regulators to encourage historical awareness, and to help the academic community of legal education researchers to build the basic resources and tools required for this. In spite of our plea, there was no update to the literature review after 2013 by the regulators. It remained frozen in time, growing out of date from the day after publication, a missed opportunity. Ten years since it looks like a massive mistake. In the context of the period under review plus the ten years since, ie 50 years, and in spite of our recommendations on the topic, LETR replicates the errors of most reports before and since: snapshot research, no longitudinal ambitions, a sense of resonant historical awareness limited to only the remit’s period. The regulators showed little awareness of the obligations owed to future generations of academic and professional researchers, students and lawyers. Above all, such snapshots perform a negligent erasure of history. Walter Scott’s subtitle to his novel entitled Waverley – Or, ‘Tis Sixty Years Since – is much more important than the title for it expresses profoundly his sense of the complex relationship between the past and the present Scotland of his readers. Educational researches, as much as educators themselves, need that acute sense of living, flexible time. Let’s hope NCSC put funds aside to continue their good work of reviewing the present into the future, and make it as accessible to scholars and the public as a living, growing piece of research.
Third, and looking back at Griswold and many others, we read dissent in the US; but seldom do we encounter thoughtful and rigorous attempts to re-imagine and implement alternative whole curricula. In the US, the 1920s Columbia experiment in forming a realist curriculum was one rare example (and remember – only 40 years back from Griswold & Twining, only 60 years back from MacCrate).9 Nowadays the emphasis in the US seems to be on building the tools (eg competence-based reports) and the environment within which innovations can operate in what has become an increasingly highly regulated environment.10 That’s essential; but implementations, examples, and the research on what success and failure looks like – these are necessary too, so that we can learn from real-life cases (again, coming back to Griswold’s comments on legal education’s failure in this regard).
Which brings me to my last point. It’s perhaps of interest that the Chair of the Committee is the Chief Justice of New Hampshire. It’s the New Hampshire University Law School which has hosted in NH one of the longest-lasting and most successful of recent innovations in US legal education history, the Daniel Webster Scholar programme (running since 2005, I believe). You can find an independent review of its success here; and I’ve discussed it and the part I played in it with my colleague Karen Barton here and elsewhere on this blog. The project would never have come about but for the trust built through solid liaison work between the Supreme Court of NH and John Garvey and his colleagues. Such liaison, allied to rigorous, persistent, longitudinal research, upon persistent longitudinal educational examples, helps to transform innovation into strongly embedded habits and practices, and will ensure the long-term success of initiatives such as NCSC’s in the future.
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- Griswold, E.N. (1967). Intellect and spirit. Harvard Law Review, 81, 292-307, 300. ↩︎
- Griswold, ibid, 303. ↩︎
- Mayer, M. (1967). The Lawyers. New York, Harper & Row, 92. ↩︎
- Indeed it’s interesting to compare Griswold’s Hamlyn Lectures, Law and Lawyers in the United States,published three years earlier than Twining’s inaugural lecture. ↩︎
- Griswold, ibid, 300. He is writing, of course, in a period when student campus unrest and revolt was a serious concern in American society. ↩︎
- William Sullivan gives us a helpful reminder: Sullivan, W.M. (2018). After ten years: The Carnegie Report and contemporary legal education, University of St Thomas Law Journal, 14, 331-344, 332. ↩︎
- The entire two-year project output, the web data for which with no warning from the report commissioners disappeared entirely from the web, was captured by Gavin Maxwell and myself (Gavin designed the website) and hosted for security on my domain. It was later reinstated. ↩︎
- The nine thematic areas were as follows:
1. The role of legal education and training and its relationship to maintaining professional standards and regulation in the sector
2. The role of formal education and training requirements in working in concert with other regulatory tools to deliver conduct of business regulatory objectives
3. Educational standards for entry to the regulated profession
4. The requirements for continuing education, accreditation and quality assurance for regulated individuals and entities
5. The requirements placed on approved providers of legal education and training
6. Existing equality and diversity issues
7. Comparative analysis of international systems and other relevant sectors and professions
8. Possible impacts of the proposed 2012/2013 reforms in the higher education sector on legal education and training and in particular the increases in undergraduate tuition fees
9. Impact of the Legal Services Act 2007 on education, training and practice models ↩︎ - See Maharg, P. (2007). Transforming Legal Education: Learning and Teaching the Law in the Early Twenty-first Century. Ashgate, Surrey. Chapter 3: ‘The road not taken: Realists and the curriculum’, 77-98 ↩︎
- Some are more imaginative in this respect than others. See for example IAALS’ report, Think Like a Client, available at https://iaals.du.edu/projects/think-client ↩︎