Plenary, Carrie Menkel-Meadow: ‘Thinking or acting like a lawyer?  What we don’t know about legal education and are afraid to ask’.

by Paul Maharg on 05/12/2017

Carrie Menkel-Meadow needs no introduction.  She’s looking at six claims that things change legal education and lawyering.  Her slides are dense with information, so will do what I can to summarise the myths and their details.

Myth 1: legal education = think like a lawyer.

What about doctrine in CL and civil jurisdictions.  Method is socratic teaching, treating like cases alike (but how do we know what are life cases [facts], learning by analogy (but see Michael Lewis and The Undoing Project, analogical thinking is lazy thinking) and ‘distinguishing’ cases, ‘deductive’ reasoning.

Myth 2: ‘critical’ thinking = thinking like a lawyer.

Theory matters jurisprudence of law-purpose = justice.  But who made the law.  CLS, Kennedy, derived from legal realism critique of legal positivism, Law & Economics, Feminist legal theory, Critical Race theory (power & subordination), Socio-legal studies (other disciplines matter), and cognitive psychology (human errors in reasoning).  Method: theory and doctrine – little empirical testing, with seminars, consciousness raising groups, workshops, focus on identity in legal education and pedagogy, and borrowing from other fields, eg new behavioural economics.  She was interested in developing theory about how cognitive errors may not be errors, just description s of human behaviour, and needing analysed.

Myth 3: ‘Doing’ like a lawyer – experiential learning.

Methods: clinical, ie real clients, sims, role-plays, problem sets, case method.  She borrowed from other fields to teach normatively and prescriptively negotiation skills.  Facts matter, feelings matter, skills matter – Q. formation, interviewing, counselling, negotiation, trial skills.  ‘Inductive’ learning (but is it any better/different from deductive learning?)

Myth 4: ‘Being’ like a lawyer: ethics as person or professional

Role morality or ‘ordinary’ morality (Wasserstrom, etc).  Legal ethics mandatory in US after Watergate, good person vs good professional (Luban – Good Lawyer)  Does winning for the client = justice?  Solve problems?  We need culture change.  ‘Trumpism’ Art of the Deal and Wharton study – confirming increased male aggression post-election, vs ‘a’ (appropriate dispute resolution) – which is stalled up like Pac-Man in adversarial legal culture.  We are faced with the globalisation of legal education – ‘Citizen’ of world (international law, rule of law, human rights, cosmopolitanism) vs domestic order (resurgence of nationalism, jurisdictional barriers).  So in her university (UCI) there is both legal professional/ethics and international legal analysis in mandatory 1L curriculum – any difference?

Myth 5: ‘Globalisation’ of lawyers and legal education.

Increasing convergence of legal education methods?  LLMs (UK, US, Australia, Europe – Asia) migration.  Locus of practice (international arbitration, large firms, international humans rights) BUT barriers to cross-jurisdictional practice (Laurel Terry, Susan Franck).  The realms of influence are still post-colonial, in the north and west.

Myth 6: End of Lawyers? (Susskind)

Poppycock, according to Carrie.  Technology & lawyer displacement, hackathons, access to justice – yes good stuff according to her, ODR (eBay, MODRIA, Rechtsweijzer).  Social media aggregative ‘class action’ (repetitional remedies).  BUT – due process?  individual vs group justice?  True, but this is unfair to Susskind, caricatures his argument.  Carrie argues, what subject to ‘techno-lawyering?’ Big data, data mining, e-discovery, forms and routines, but NOT immigration, fails law discrimination-individual, personal ‘cathartic’ lawyering, tailored problem-solving (eg mediation for future relations of particular parties, not cookie cutter solutions).

Do these new things transform things or are the new forms of old things, she asked.  Her questions for us – have the questions re enforceable contract, compensable injury, property, dispute resolution, who are the parties in dispute – still need to be asked.  She quoted the Garth, Sterling Dinovitzer project ‘After the JD’ in the US.  She said we need more of such longitudinal research – couldn’t agree more.  She raised measurement issues.  She finished with a defence of a legal education with some critical questions, some experiential learning, some jurisprudential theoretical learning, some sims, some specialisation, a vision of ‘do no harm’ medical commitments

As always, I’m inspired by, irritated by, grateful to, challenged by Carrie in almost equal measure. The breadth of her thinking in theory and practice, across the literatures of the profession and education, is just phenomenal.  And she’s truly international in her thinking.  She has been a major influence on what I’ve done, particularly in skills and ethics, and a figure of caution – one of those mental figures in my head who, when I make a generalisation or a claim, I turn to, and who looks at me and says, Is that really so?  And this plenary, one of the best I’ve heard in years, did the same.

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