The Future of Legal Education conference, day 3

by Paul Maharg on 24/02/2008

Missed the first session of the final day’s concurrent workshops because I was absorbed in a conversation with clinicians…  Something of a theme in this conference.  Looked interesting, too, because on the subject of the Carnegie report, and the speaker talked about Reed, one of the earlier Carnegie reporters on legal education. 

Next up, Steven Schwinn (The John Marshall Law School), taking stages of development (Perry, etc) – dualist, relativist, reflective to examine the moral and cognitive development in the law school.  In a grid he matched this development with student characteristics, and in the third column, what is done in law school.  His work in some respects matches that of my colleague, Karen Barton, on how students work within the virtual firm environment.  But he focuses on the differences between what students arrive with in law school, and the stages that law school takes them through.  He characterises the process as regression, not progression, through law, and he stated rather controversially (but with considerable sympathy in the room for the statement) that we exit students as prisoners in terms of moral development.  He cited examples of work with students in class – very interesting in terms of moral development and interaction with students. 

Final speaker was Andrew King-Ries (U of Montana Law School) on the need for cross-cultural education in law schools.  He advocated active integration within the law school.  He compared the recent report of medical accrediting bodies tackling this problem, though it would have been useful to have learned in a little more detail what medical schools and teaching hospitals were actually doing in order to implement the report.  He observed that in his own work in legal education (with NCBI), when diversity issues are tied into concrete training issues (eg advocacy), there was considerable effect. 

In the discussion that followed Schwinn was asked a complex question regarding method by John Berry that relied upon discussion of the authenticity of actual and real cases over hypotheticals.  Interesting position, given what he was saying earlier. 

The second session began with Francis Mootz (Penn State Dickinson School of Law), talking on Vico’s ‘Ingenious Method’ and legal education.  He focused on ‘On the Study Methods of Our Time’ (1708), and his mediation between the quarrel of the Ancients & Moderns.  Mootz makes a fascinating connection between Carnegie and Viconian approaches.  According to Mootz Vico looked back to Rome, the neglected tradition of ingenuity, imagination, prudence and eloquence.  But there was a need for balance.  Mootz contrasts the Viconian approach to a Cartesian approach, which Vico critiqued in his Oration.  Mootz argues for a rhetorical approach to law which means learning rhetoric through experience and practice: finding means of persuasion; legal topics and doctine as knowledge subject to critique; and finally the rhetoric of inquiry, ie no theory driven methodology is possible.  Practical implications include memorizing vocabulary, coupled with human interaction activities; Llewellyn-style case method with depth; and clinical /simulation capstones, ie making judgments, guided reflection, modelling. 

Next, Randy Gordon (Professional Development Partner, Gardere Wynne Sewell) explored a narrative theory of legal pedagogy.  He cited the Carnegie’s critique of the case method as employing the analytical over the narrative forms.  He cited his own practice – he binds trial testimony and other documents that don’t normally appear except in a highly regulated form in a case report, ie he is getting behind the redaction of the case rhetorical form, in order to get students to think about the voices that are suppressed by the case. 

Finally, Maksymilian Del Mar (Edinburgh Law School) presented on Beyond Text in Legal Education: Art, Ethics and the Carnegie Report.  In the first part of the paper he considered the limitations of a text-based ethical education in law schools, ie moral awareness, vision and attention, and the relation of art and ethics.  Secondly he considered this in the light of ethical education in the Carnegie Report, where he critiqued the use of professionality as an environment for moral learning.  Too much text, he argued, and ethics should not be subordinated to professionalism.  Interesting argument.

I’ll be summarising my general responses to the conference tomorrow.   

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