Dumping the Dreaded Dead Third Year of Law School & Re-enacting the Death of Socrates in the Reinvention of Legal Education Part I of a II Part Perspective

2014-09-03 16:17:00

economics“Long apprenticeships are altogether unnecessary. The arts, which are much superior to common trades, such as those as making clocks and watches, contain no such mystery as to require a long course of instruction.”

Spoken by none other than the master! Adam Smith, the inventor of the modern day “dismal science” of economics, was well versed on economics and politics of the trades and learned professions. Smith made that observation to draw attention to the fact that the term of years associated with apprenticeships and professions was designed to limit entry and socialize aspirants into the upper class, not for imparting the skill from master to servant. 

The traditional three year LLB (Bachelor of Legal Laws) acquired initially through in-house “clerking” apprenticeships and eventually displaced by three years of professional vocational education in quasi academic settings for high school graduates and/or applicants with one or two years of post secondary education was and remains an excellent balancing of skills and socialization. Indeed, Ontario had no officially accredited law schools until 1957 and the public interest was well served with this model.

However a quick trip “back to the future” will explain how politics supplanted pedagogy in legal education placing the 21st legal profession in a quandry. In1870 Harvard University appointed Christopher Columbus Langdell as Dean of Law. Not to be outdone by his namesake, Langdell took it upon himself to discover a new world of legal education. Langdell orchestrated the shift of legal education from vocational education to an academic science. Jurisprudence, the study of law with its classic philosophical base, was reinvented as an academic discipline with a scientific methodology in American legal education.

Law was elevated to the status of other academic disciplines worthy of an association with elite university education, notably medicine. Moreover, law elevated to graduate school status and accorded a Juris Doctoral (J.D.) designation. This required the insertion of a baccalaureate degree as a prerequisite to have law admitted to the elite professional graduate school club in the Ivey League universities. Politics not pedagogy was the impetus for the emergence of the “second degree” status of legal education at Harvard and its fellow Ivey League universities. The “wannabe” like Harvard Law Schools climbed on board.

The traditional LLB education model with its origins in the “ancient” universities of England[i] relies on the classic “Oxbridge” approach of information centric lectures and interactive intensive small group tutorials under the auspices of a professor and tutor, the latter who establishes a personal learning relationship with their students. The jurisprudential model eliminated the need for small class tutorials. The law professor held court as an expert in jurisprudence who dissected cases in a Socratic dialogue with students. The educational economies of scale inherent in Langdell’s method enabled the establishment of large lecture theatre classes. There was money to be made by switching from the classic LL.B. model to the more exalted graduate J.D.

Law professors were reinvented as legal scholars. Elevation of jurisprudence to the highest possible realm of academic research became the driver for law professors and the foundation for curriculum design and teaching. Not surprisingly, law school graduates became well schooled in writing cogent judicial critiques while being bereft of practice management skills. The replacement of a professional vocational learning experience with pure academic study has come back to haunt the profession. The legal education system has lost touch with the realities of the practice competencies associated with the contemporary legal services market.

Students entering law school with four year baccalaureate degrees have been sufficiently socialized and equipped with sufficient critical reading and writing skills to complete a first rate legal education program in two years instead of the historical three year requisite. In fact, they’ve completed or could have completed all of the core law courses by second year if legal research and writing had been integrated into course work. They’re chomping at the bit to get going with their careers but find themselves taking a hodgepodge of half and half law and humanities/law courses in third year. These are too often taught by well meaning law professors who, in many instances, lack Ph.D. qualifications in non-law course areas. Hence, the lament about the time and expense dedicated of the “dreaded dead third year” from North American law students.

The UK “two year accelerated LLB” program has demonstrated that university graduates who are immersed in a comprehensive legal education program that is law course specific and requires students to demonstrate the ability to strategically manage a demanding curriculum in a two-year time frame produces graduates who are well qualified to enter a profession that thrives on quick thinkers with strategic management capability. What makes it work is the emphasis on lectures that de-emphasize the Socratic method and instead feed into small group tutorials. Students in the top tier law schools (Russell Group and those with global research mandates) are assigned to a study group of 8-10 students. They meet 3-4 hours per week with a dedicated Ph.D. qualified law professor. There’s no Socratic pontificating. It’s hands on teaching and coaching between students and a tutor who establish a mutually beneficial teaching/learning relationship.

There’s a mother lode of pedagogical studies demonstrating that students in general and women in particular don’t find the Socratic method to be an effective learning mechanism. In fact, women equate the singling out of an individual in a large lecture theatre setting and putting her feet to the fire in combative questioning with bullying. Comparable studies have demonstrated that students imbued with learning through the Socratic method tend to replicate it as a mechanism for client relationship management. Is it any wonder why so many clients find their lawyers to be doctrinaire?

Small or at least manageable classroom sized lectures with learning supportive interactive Q & A’s, tutorials and “e-learning” are now recognized as the preferred learning structures in the 21st century. As was the case with the Greeks, who put Socrates to death for overstepping their bounds, its time for legal academe to acknowledge the Socratic method has overstepped its bounds by creating a schism between legal education and the legal profession and to re-enact its death.

No less than President Barak Obama, a former law professor has weighed in from the “presidential bully pulpit” calling for an end to the three-year JD law degree. The costs of socialization associated with the “dreaded dead end third year” are just too much of a burden on prospective legal professionals whose time and the costs associated with it are much better spent on leveraging two years of core legal education into strategic configurations of practice management and legal specialization; the topics of the next Future Law Perspective. The legal profession needs to latch onto the much talked about “T” an “I-I” legal education configurations.