Legal Education (Part Ii)
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\\jciprod01\productn\N\NYC\24-2\NYC203.txt unknown Seq: 1 15-MAR-18 13:48 TRANSFORM—DON’T JUST TINKER WITH—LEGAL EDUCATION (PART II) GERALD P. LOPEZ´ * Part II of this two-part article presents the Alternative Vision of legal education discernible in the best of clinical legal education—not as a supplement to the at-best-status-quo-plus model that still domi- nates legal education, but as a complete substitute ready now for a full roll-out. This Vision defines, in ambitious intellectual and peda- gogical terms, what lawyers do, describes the capacities superb practi- tioners demonstrate, and delineates the aims and means to train law students to be as practice-ready as three years of first-rate education allows and to grow better and better at what they do through deliber- ate choices made over a career. Because the Alternative Vision traces its origins, its implementation, its improvements to the best of clinical programs in the United States, many will likely regard it as presump- tively unworthy, even ridiculous: a mongrel rather than a Blue Blood, perhaps practically-minded but at best only spuriously intellectual. Meeting this scorn head-on, Part II sketches the radically different assumptions, methods, and aspirations at the heart of the Alternative Vision, explains why we should ban the Socratic case method and scrupulously scrutinize all familiar learning formats, and measures all of us involved in legal education by how well suited we are (or could become) to the teaching and learning a transformed legal edu- cation demands. TABLE OF CONTENTS INTRODUCTION ................................................. 250 R I. FORMATIVE, CONSOLIDATING, ENHANCING TIMES ...... 258 R * Professor of Law, UCLA School of Law. Deepest thanks to the organizers of and participants at the Clinical Law Review Symposium, Rebellious Lawyering at 25, on May 1, 2016, in Baltimore, Maryland, to the UCLA law librarians (and the late June Kim), and to Damon Agnos, Iman Anabtawi, Janese Bechtol, Jessica Blatchey, Jessi Bulaon, Daniel Bussel, Stephen Carpenter, Jessica Cobb, Marissa Dagdagan, Steve Derian, Sally Dickson, Daria Fisher Page, Tara Ford, Martha Gomez, ´ Patrick Goodman, Yuri Han, Randy Hertz, Jenny Horne, Katie Hurley, Heejin Hwang, Kristen Jackson, Rusty Klibaner, Michael Kramer, Dania Lopez ´ Beltran, Lynn LoPucki, Shauna Marshall, Andrea Matsuoka, Brenda Montes, Gary Peck, Kimberly Phan, Brad Pollock, Luc´ıa Sanchez, ´ Meg Satter- thwaite, Dian Sohn, Robert Ian Stringham, Kim Taylor-Thompson, Sherod Thaxton, Delvin Turner, Alex Wang, Jana Whalley. Eva Wood, Maggie Yates, and those whom Clinical Law Review practice prohibits me from naming. Special thanks to Kathleen Foley for close collaboration on this entire project. 247 \\jciprod01\productn\N\NYC\24-2\NYC203.txt unknown Seq: 2 15-MAR-18 13:48 248 CLINICAL LAW REVIEW [Vol. 24:247 II. ALTERNATIVE VISION ................................... 266 R A. Animating Insights Driving the Alternative Vision . 267 R B. Lawyers as Problem Solvers Among Other Problem Solvers .............................................. 270 R C. Lawyering as Stylized Variation on Human Problem Solving .............................................. 271 R D. Legal Analysis as Stylized Variation on Everyday Analysis ............................................ 275 R E. Rebellious vs. Regnant Vision of Problem Solving. 277 R F. Lawyers as Experts—Experts Differently Conceived .......................................... 283 R G. Mapping Reality .................................... 284 R H. Cross-Cutting Capacities at the Heart of the Problem Solving All Lawyers Pursue ............... 292 R 1. Every Superb Lawyer Demonstrates the Capacity to Observe Closely, Listen Attentively, and Size Up a Situation Well ................... 292 R 2. Every Superb Lawyer Demonstrates the Capacity to Read Discerningly, to Write Convincingly, to Speak Effectively .............. 297 R 3. Every Superb Lawyer Demonstrates the Capacity ........................................ 304 R a. To frame and understand problems from varying perspectives ........................ 304 R b. To work well (collaborate) with diverse others ....................................... 308 R c. To learn about “local communities,” “geographically dispersed communities,” and the intimate relationship to “global forces” . 314 R d. To imagine and implement varied strategies and ensembles of strategies (across legal, political, economic, social, and cultural realms) ..................................... 316 R e. To monitor and evaluate the effectiveness of strategies as pursued and problems as framed ...................................... 318 R f. To design and manage the institutions through which we work and live ............ 322 R g. To learn how to learn (from experience and every which way) throughout the course of a problem-solving career.................... 325 R III. DEFINING AFRESH AMBITIOUS TEACHING AND LEARNING .............................................. 331 R \\jciprod01\productn\N\NYC\24-2\NYC203.txt unknown Seq: 3 15-MAR-18 13:48 Spring 2018] Transform Legal Education 249 A. Opening Up to Scorned and Ignored Possibilities. 331 R B. Problem Solving—Method and Aim ................ 332 R C. Teaching as Coaching ............................... 332 R D. Learning to Be “Coaches On The Floor” ........... 334 R E. Teaching and Learning Like This—Doable, Intensive and Not for Everyone .................... 335 R 1. Preparation—For Teachers and Students ....... 335 R 2. Teaching People, Not Teaching Things .......... 337 R F. Neutralizing the Virus of the Curve ................ 339 R G. Coordinated and Sequenced Training ............... 341 R H. As Practice-Ready as Imaginable ................... 343 R I. Preparing Students to Pass the Bar ................. 344 R IV. BANNING THE SOCRATIC CASE METHOD ............... 345 R A. Realistic Portrayal .................................. 349 R B. Disaggregating Valuable Aspects and Training Through Targeted Coaching ........................ 355 R 1. Learning Law ................................... 356 R 2. Learning How to Read, Interpret, and Use Cases ........................................... 365 R a. Edited Judicial Opinions Promoting Ends Other than Learning to Read Cases ........ 366 R b. Obscuring Rather than Systematically Revealing Patterns in Judicial Opinions .... 367 R c. Substituting a Sterilized Brand of Weak Formalism for the Radically Honest Appraisal of What Goes into, Can Be Discerned in, and Can Be Produced Through the Use of Cases .................. 371 R 3. Learning How to Recognize, Understand, and Produce Quality Legal Analysis ................ 376 R C. The Socratic Case Method as Work Slowdown ..... 382 R D. To Find Further Resistance, Follow the Money ..... 386 R E. Scrutinizing Everything Else (Seminars, Colloquia, Practicums, Externships, and Clinics) ............... 387 R V. PIECING TOGETHER GREAT TEACHING AND LEARNING TEAMS .................................................. 389 R A. A Brief Case Study of Dysfunction ................. 389 R B. Utilitarian/Evaluation and Compensation of Teachers ............................................ 392 R C. Drafting and Training for Success................... 393 R VI. BE AWARE—AND BEWARE ............................ 400 R VII. THE DYSFUNCTION RUNS DEEP ........................ 404 R A. A Swan Song ....................................... 404 R \\jciprod01\productn\N\NYC\24-2\NYC203.txt unknown Seq: 4 15-MAR-18 13:48 250 CLINICAL LAW REVIEW [Vol. 24:247 B. One Educator’s Reaction to Brian Mikulak’s Letter ............................................... 421 R VIII. SKETCHES OF WHAT COULD BE ........................ 422 R EPILOGUE ...................................................... 465 R INTRODUCTION Over roughly the past fifty years clinical programs have devel- oped, refined, and consolidated an Alternative Vision of legal educa- tion ready immediately to be implemented across the law school curriculum. Indeed this vision is ready entirely to replace the tradi- tional law school curriculum. This vision defines what lawyers do, de- scribes the capacities superb practitioners demonstrate, and delineates the aims and means to train law students to enter the profession. That training would equip future lawyers to become as practice-ready as three years of first-rate education allows and to grow better and better at what they do through deliberate choices made over the course of a career. What the best clinical programs offer counteracts the harm in- flicted by the basic approach to legal education first introduced in 1870 and still dominant today. That was already true in important ways in 1970, absolutely true in 1990, and still true today. As epidemi- ologists would say, the best of clinical programs offer downstream treatment of troubles created upstream. But for most law students, that treatment is often too little, too late. Indeed, the more earnest the student—the more inclined to engage the first-year regimen and the second and third years precisely as conventional wisdom exhorts—the more difficult it often turns out to be to undo the damage the rest of law school inflicts. To frame and understand clinical education’s role merely as “sup- plementing” or “grounding” or “advancing” students’ growth is en- tirely to miss the point. This view—the dominant view—severely limits the role of even the best of clinical education. It maintains the sovereignty of the underachieving, self-aggrandizing “core” of legal education that creates the upstream ills