Bridging the Gap: Legal Education and Lawyer Competency E
Total Page：16
File Type：pdf, Size：1020Kb
BYU Law Review Volume 1977 | Issue 4 Article 6 11-1-1977 Bridging the Gap: Legal Education and Lawyer Competency E. Gordon Gee Donald W. Jackson Follow this and additional works at: https://digitalcommons.law.byu.edu/lawreview Part of the Legal Education Commons, and the Legal Profession Commons Recommended Citation E. Gordon Gee and Donald W. Jackson, Bridging the Gap: Legal Education and Lawyer Competency, 1977 BYU L. Rev. 695 (1977). Available at: https://digitalcommons.law.byu.edu/lawreview/vol1977/iss4/6 This Article is brought to you for free and open access by the Brigham Young University Law Review at BYU Law Digital Commons. It has been accepted for inclusion in BYU Law Review by an authorized editor of BYU Law Digital Commons. For more information, please contact [email protected]. 1 Bridging the Gap: Legal Education and Lawyer Competencyt E. Gordon Gee* and Donald W. Jackson** Summary of Contents Introduction A. Origins and Purposes B. Methodology C. Outline and Cautionary Notes Contemporary Issues in the Training of the American Lawyer A. Alternative Priorities in Legal Education B. Alternative Structures in Legal Education C. Alternative Methods in Legal Education D. Evaluative Stages and Techniques I E. Professional Responsibility and Ethics F. Financing of Legal Education G. Conclusion American Legal Education and the Bar: Hand in Hand or Fist in Glove? ~ntroduction 719 1. The American lawyer: A new breed 719 2. A recurrent theme: Practical experience versus academic education 721 Legal Education Prior to 1870: Challenges to the Apprenticeship System 722 1. Early attempts at academic training in the law 725 2. The proprietary law school 726 3. Bar admission requirements: Riding the roller coaster 727 4. The beginnings of university-based legal education 731 t The authors gratefully acknowledge a grant from the Council on Legal Education for Professional Responsibility, Inc., which made it possible to undertake an extensive research agenda to gather heretofore unavailable data on which this and two prior studies are based. Our interest concerning problems in legal education was kindled while we were serv- ing as Judicial Fellows at the United States Supreme Court. For that spark we wish to thank Chief Justice Warren E. Burger and Dr. Mark W. Cannon, Administrative Assistant to the Chief Justice. Their concerns for improvements in the justice system gave rise to our desire to study legal education as one of the most essential components of that system. We also wish to thank Messrs. Joseph Cannon and Michael L. Jensen, students at the J. Reuben Clark Law School, who as our research assistants have made major contri- butions to this study. Mr. Jensen has also assumed overall editorial responsibility for the study as an Article Editor of the Brigham Young University Law Review, doing so in the most professional manner. Finally, we recognize our silent and most important partners in this project: the deans, faculties, and students of America's law schools. * Associate Dean and Associate Professor of Law, J. Reuben Clark Law School, Brigham Young University. B.A., 1968, University of Utah; J.D., 1971, Columbia Univer- sity; Ed.D., 1972, Teachers College, Columbia University. ** Chairman and Associate Professor, Department of Political Science, Texas Chris- tian University. B.A., 1959, J.D., 1962, Southern Methodist University; Ph.D., 1972, University of Wisconsin. 696 BRIGHAM YOUNG UNIVERSITY LAW REVIEW [I977 C. Legal Education After 1870: The Triumph of University-Based Education 1. The Transition period: Moving toward the Harvard model 2. The American Bar Association and the Association of American Law Schools 3. Admission to the bar 4. Part-time legal education D. The Swing of the Pendulum: Practical Training Revisited IV. Going Home: The Education of the English Lawyer A. Introduction B. A Brief History of English Legal Education 1. A chronology of early developments 2. Early attempts at education reform 3. Post-World War I1 developments C. Current English Legal Education 1. The Ormrod committee report a. Training of solicitors: 1971 b. Training of barristers: 1971 2. English self-evaluation 3. The Ormrod recommendations 4. Reactions to the Ormrod recommendations D. Our Appraisal of English Legal Education E. Conclusion V. Educational Programs of Business, Accountancy, and Medicine: Perspectives from Three Sisters A. Introduction B. Education in Business 1. The history of business schools 2. Forces affecting business education 3. Trends in business education C. Education in Accountancy 1. The history of accountancy education 2. Forces affecting accountancy education 3. Trends in accountancy education D. Education in Medicine 1. The history of medical education 2. Forces affecting medical education 3. Trends in medical education E. Conclusion VI. Current Trends in the Training of Lawyers: Will Langdell Take a Bride? A. The Public Pulse and Professional Response B. Alternative Models in Legal Education 1. Structural reform a. The two-year law school b. The two-year "plus" law school c. The 2-1-1 law school d. Specialization and tracking 2. Curriculum reform a. Cooperative education: Northeastern University School of Law b. SCALE: Southwestern University School of Law c. The clinical law school: Antioch School of Law C. Program Innovation in Legal Education 1. New technology a. Programmed learning b. Computer-assisted research c. Videotape teaching 2. Interdisciplinary training BRIDGING THE GAP 3. Skills training 4. Clinical legal education D. Legal Education and Bar Admissions 1. New directions in bar examinations 2. New directions in bar requirements a. Clare committee proposal b. Rule 13 of Indiana c. The Devitt committee E. Legal Education and Continuing Lawyer Competency 1. Mandatory continuing legal education 2. Certification of specialists F. Legal Education and the Training of Lawyers: Once Again, Lightly VII. A Critical Overview of the Content, Dynamics, and Effects of American Legal Education: Trade Tech or Ivy Walls? A. The Content and Dynamics: "Practical" Versus "Theoretical" 1. Examples of the dichotomy: Types of law school graduates a. Type one: The "Technician" b. Type two: The "Scholar" c. Type three: The "Practitioner" 2. Forces and factors in the dichotomy: Identification, specifica- tion, and assessment a. Law professors b. Practicing attorneys c. Judges d. Students B. The Effects: Does Legal Education Encourage Certain Kinds of Practice over Others? 1. The Laumann-Heinz study 2. Our own study 3. The Pipkin-Stokes-Spangler study 4. The Erlanger-Klegon study C. Some Conclusions and Hypotheses VIII. Conclusion: Problems with the Implementation and Persistence of Edu- cational Innovation A. Stages in the Innovative Process 1. Stage one: Development and dissemination of innovative ideas 2. Stage two: Implementation of innovative ideas by others 3. Stage three: After implementation-persist or perish? B. Definition of Functional Analysis and Description of Underlying Assumptions C. An Analysis of Factors for Change or Stability in American Legal Education 1. Factors associated with the persistence of educational programs and practices 2. Factors associated with the decline of educational programs and practices 3. Summary and qualification D. Clinical Legal Education: A Hypothetical Case 1. The problems and disincentives of clinical legal education 2. Traditional classroom teaching: An easier alternative 3. Suggestions for the persistence of clinical legal education E. A Final Comment Appendix A: Law Faculty Questionnaire Appendix B: Law Student Questionnaire A. Origins and Purposes This Article represents a modest effort at an immodest task: we attempt a critical examination of American legal education. In the course of this examination we raise some current issues and review certain historical antecedents as they illuminate those is- sues. Further, we seek to evaluate the processes and prospects for stability or change in American legal education. To put it in capsulized form, we ask: 1. What are the notable issues in American legal education? 2. What perspectives do the history of legal education and bar admission in the United States, the experience of England, and the experiences of other professions offer on current issues in American legal education? 3. What appear to be the significant trends in American legal education? 4. What are the dynamics-the interplay of forces and factors-that determine change or stability in American legal education? Essays on legal education that speak of crises, turning points, and innovations are legion. Often these discussions lack historical perspective, appearing to mistake the current for the novel; just as often they are myopic, lacking the broader view that recognizes certain changes as inevitable. Primarily, critiques of legal educa- tion revitalize the trite aphorism that "there is nothing new under the sun." Writing still another programmatic essay about the "malaise" in contemporary American legal education or present- ing our vision of what legal education should be and our version of its curriculum would merely add unbleached bones to the crowded graveyard of such proposals. We eschew both Cassandra and Don Quixote; forecasting doom or jousting with windmills may be cathartic, but neither is very useful. We seek to avoid the pitfalls reproached above and expect to be judged severely by that standard. We offer as the saving graces of this study our perspective and purpose. Although we both have law degrees and have practiced law, one briefly and the other for five years, we each have terminal degrees in other disciplines. One received his degree in education and has only recently come to legal instruction and administra- 6951 BRIDGING THE GAP 699 tion; the other is a political scientist who currently teaches in that field. Relative to the legal education establishment, the practic- ing bar, and sitting judges we write as outsiders. This perspective helped us to recognize and gauge the implicit assumptions under which legal educators often labor. Because we have no long-term vested stake in legal educational traditions or practices, we were quite willing to start our evaluation with a clean slate.