Can the Carnegie Report Spark Fundamental Reforms of

Can the Carnegie Report Spark Fundamental Reforms of

Can the Carnegie Report Spark Fundamental Reforms of Legal Education? Clark D. Cunningham W. Lee Burge Professor of Law & Ethics Georgia State University College of Law Atlanta, Georgia (USA) [email protected] http://law.gsu.edu/ccunningham/ Feb 21, 2008 Future of Legal Education Conferen ce 1 The Carnegie Report Educating Lawyers: Preparation for the Profession of Law By William M. Sullivan, Anne Colby, Judith Welch Wegner, Lloyd

Bond & Lee S. Shulman The Carnegie Foundation for the Advancement of Teaching 2007 Feb 21, 2008 Future of Legal Education Conferen ce 2 Carnegie Foundation for the Advancement of Teaching Founded in 1905 by Andrew Carnegie Has prompted many important changes in higher education The 1910 Flexner Report established the standards for modern medical education

Feb 21, 2008 Future of Legal Education Conferen ce 3 What is Special about Carnegie Methodology Independent, outside perspective Only 1 of the 4 authors is a lawyer or law teacher (Judith Wegner) One is a moral philosopher (Bill Sullivan) Two are social scientists (Anne Colby, Lloyd Bond) Part of a larger project: Preparation for the Professions Program

Thus able to compare legal education with other kinds of professional education Doctors Nurses Engineers Ministers and rabbis Feb 21, 2008 Future of Legal Education Conferen ce 4 Carnegie Methodology (continued) Applies current research on teaching and learning Based on visits to 16 law schools How teaching and learning really happens

Classroom observations Interviews with teachers and students Feb 21, 2008 Future of Legal Education Conferen ce 5 Mis-Reading the Carnegie Report Law Schools Too Abstract, Report Says: Study Suggests Teaching More Practicalities (LA Daily Journal) Dangerous implication That the Carnegie recommendations are antiintillectual That law schools should be trade schools

Feb 21, 2008 Future of Legal Education Conferen ce 6 Although the Carnegie Report IS concerned about legal education that produces lawyers who lack basic skills The Report is much MORE concerned about the problem of producing lawyers who lack professional responsibility Feb 21, 2008 Future of Legal Education Conferen ce

7 Carnegie Report says: The goal of professional education cannot be just knowledge plus skillful performance. Because in real-life practice, knowledge, skill, and ethical behavior are interdependent A practitioner can not exhibit one without involving the others at the same time. Feb 21, 2008 Future of Legal Education Conferen ce

8 The Prequel to the Carnegie Report Work and Integrity: The Crisis and Promise of Professionalism in America (2nd edition) By William M. Sullivan The Carnegie Foundation for the Advancement of Teaching 2005 Feb 21, 2008 Future of Legal Education Conferen ce 9 Sullivan: Crisis of Professionalism

The public's persistent worry about professionals, often somewhat misleadingly described as a concern about professional "ethics," is in fact a suspicion that professionals have broken faith with the public. That professionals have abandoned the public They have become self-protective And aloof from the significance of what they do. Feb 21, 2008 Future of Legal Education Conferen ce 10

Sullivan: The Promise of Professionalism The promise of genuine professionalism is a kind of transcendence and change of self gaining a wider sense of identity through engagement with technical excellence while taking responsibility for shared ends Feb 21, 2008 Future of Legal Education Conferen ce 11 Authentic professionalism can impart a strong sense of identity because,

beyond providing a livelihood, it is a way of life with public value. It is the kind of thing one can build a life around. Feb 21, 2008 Future of Legal Education Conferen ce 12 Sullivan: How to Restore Professionalism to American Civic Life Can a profession secure public recognition of its claims to traditional professional prerogatives on the basis of the marketability of its technical skills alone? Feb 21, 2008

Future of Legal Education Conferen ce 13 No ! There is no successful separation between the skills of problem solving and those of deliberation and judgment no viable pursuit of technological excellence without participation in those civic enterprises through which esoteric knowledge and skill discover their human meaning. Feb 21, 2008 Future of Legal Education Conferen ce

14 Professional renewal has to begin with professional education, or it will have no lasting future. This poses the urgent curricular and pedagogical issue of how contemporary professional schools manage or fail to manage The reintegration of cognitive training with the capacities for skillful practice and ethical identity Feb 21, 2008 Future of Legal Education Conferen

ce 15 The Carnegie Report says American law schools do one thing very well: In the first year students learn a new kind of intellectual discourse called thinking like a lawyer Students learn this with impressive speed This method of teaching is unique to law schools The process is almost the same at every law school Feb 21, 2008 Future of Legal Education Conferen ce 16

But The emphasis on learning to think like a lawyer is so heavy that learning to perform like one is almost absent Law schools provide inadequate support for developing the ethical and social dimensions of the profession For most students legal education does not improve their moral judgment Feb 21, 2008 Future of Legal Education Conferen ce 17 Law schools create people who are

smart without a purpose. Said by a student from a highly selective private American law school when interviewed by the Carnegie Foundation Feb 21, 2008 Future of Legal Education Conferen ce 18 What do American law schools teach about a lawyers purpose? The law school classroom is typically a simulated courtroom

The students are advocates The teacher is the judge What is the implicit lesson about the lawyers purpose? To win arguments in court Feb 21, 2008 Future of Legal Education Conferen ce 19 Karl Llewellyn Said many years ago in a lecture to entering law students The hardest job of the first year is to lop off your common sense, to knock your ethics into temporary anesthesia. It is not easy thus to turn human

beings into lawyers. Feb 21, 2008 Future of Legal Education Conferen ce 20 Karl Llewellyn Neither is it safe. For a mere legal machine is a social danger. Indeed, a mere legal machine is not even a good lawyer. It lacks insight and judgment. Feb 21, 2008 Future of Legal Education Conferen

ce 21 Professor LLewellyn told his students that law school would endeavor to restore the insight and judgment that is knocked out of them in the first year But when in the American law school experience is this restoration supposed to happen? Feb 21, 2008 Future of Legal Education Conferen ce 22

The Carnegie Report Answer: Realistic and real-life practice experiences must be integrated throughout the curriculum Both skills and ethical decisionmaking must be learned in role The student must move from the role of observer to actor Feb 21, 2008 Future of Legal Education Conferen ce 23 Medical School

In medical education it is the assumption of real responsibility for patient outcomes that turns the student into a doctor Introduce students to simple tasks in caring for real patients in the first year Use realistic simulations to prepare students for actual patient care In the 3rd and 4th years give students increasing responsibility for patient care under teacher supervision Feb 21, 2008 Future of Legal Education Conferen ce 24

Carnegie Report Research shows that higher education can promote the development of more mature moral thinking Students need to encounter appealing examples of professional ideals Connected to models of ethical commitment And then reflect on their own emerging professional identity in relation to those ideals and models Feb 21, 2008 Future of Legal Education Conferen ce 25 Carnegie Report

Students need the ability to recognize ethical questions (even when they are obscured by other issues) wise judgment (when values conflict) and integrity (to keep self-interest from clouding judgment) Feb 21, 2008 Future of Legal Education Conferen ce 26 Carnegie Report

In order to practice with integrity and purpose: compassionate commitment is needed This is especially developed when students have personal connections with those who have experienced hardship or injustice And forming relationships with professionals who inspire is important though rarely documented Feb 21, 2008 Future of Legal Education Conferen ce 27 Sullivan: Work and Integrity

Many forms of professional preparation can be characterized as processes in which students move through the stages of an academically controlled apprenticeship: from the academic study of texts and examples, to the observation of practice, to assistance with practice, a highly supervised and monitored practice, to increasingly autonomous practice. Many forms of professional preparation (though not law) can be characterized Feb 21, 2008 Future of Legal Education Conferen ce

28 Missing from Carnegie Report Examples from law schools outside the United States. Therefore: International conference in February 2008 hosted by Georgia State http://law.gsu.edu/ FutureOfLegalEducationConference/ Course on Future of Legal Education tied into conference law.gsu.edu/ccunningham/LegalEd/ Feb 21, 2008 Future of Legal Education Conferen ce

29 Feb 21, 2008 Future of Legal Education Conferen ce 30 Seven students studied examples of innovative legal education by visiting: Argentina Australia India Scotland South Africa Four are presenting at this conference Feb 21, 2008 Future of Legal Education Conferen

ce 31 India July 23 August 20 Feb 21, 2008 Future of Legal Education Conferen ce 32 Feb 21, 2008 Future of Legal Education Conferen ce 33 Street Law in Action

Feb 21, 2008 Durban, South Africa August 1- August 12, 2007 Future of Legal Education Conferen ce 34 Beyond Practicality Feb 21, 2008 Tiffany D. Williams Georgia State University College of Law Future ofof Legal Legal Education Future

Education Conferen ce 35 Co-Author: Professor David McQuoid-Mason Feb 21, 2008 Future of Legal Education Conferen ce 36 Resources on Innovative Legal Education World-wide web resources:

Global Alliance for Justice Education: www.gaje.org/ Note especially Newsletters and Conference Reports Open Society Justice Initiative: www.justiceinitiative.org/ Public Interest Law Institute (PILI): www.pili.org/ Note especially the section on legal education reform, the database on clinical legal education and the Colloquium on Clinical Legal Education United Kingdom (UK) Centre for Legal Education : www.ukcle.ac.uk/ Woolf Chair in Legal Education (Institute of Advanced Legal Studies, University of London): ials.sas.ac.uk/research/woolf/woolf.htm The Institute for Law School Teaching at Gonzaga University School of Law www.law.gonzaga.edu

3 The Complete Lawyer No. 5 (2007): Special Issue on What Can Law Schools Do Better? atlanta.thecompletelawyer.com/volume3/issue5/ index.php Feb 21, 2008 Future of Legal Education Conferen ce 37 Australia Mary Keyes & Richard Johnstone, Changing Legal Education: Rhetoric, Reality, and Prospects for the Future , 26 Sydney L. Rev. 537 - 564 (2004) MANAGING JUSTICE: A review of the federal civil justice system (Australian Law Reform Commission Report No 89):

Chapter 2 (Education, Training and Accountability) law.gsu.edu/ccunningham/LegalEd/AusLawReformCommissionReport.htm Kingsford Legal Centre (University of New South Wales) Clinical Legal Education Guides: www.law.unsw.edu.au/centres/klc/clinical_legal_education_guides.asp Law and Justice Foundation (Australia): www.lawfoundation.net.au/ Queensland University of Technology Faculty of Law (Brisbane): www.law.qut.edu.au/ Note especially: -- Welcome from the Dean: www.law.qut.edu.au/about/welcome.jsp -- Profile of Professor Sally Kift: www.law.qut.edu.au/about/staff/lsstaff/ skift.jsp ----- Kift, Harnessing Assessment and Feedback to Assure Quality Outcomes for

Graduate Capability Development ---- Kift, An innovative assessment framework for enhanced learning QUT's Legal Practice Course (the Graduate Diploma in Legal Practice www.law.qut.edu.au/courses/legprac/ Feb 21, 2008 Future of Legal Education Conferen ce 38 Australia (cont.) Griffith Law School (Brisbane): www.griffith.edu.au/school/law/ Note especially: Clinical Legal Education: www.griffith.edu.au/school/law/ content03_clinical.html

Practical Legal Training: www.griffith.edu.au/school/law/content04_pltgriff.html Profile of Professor Jeff Giddings: www.griffith.edu.au/school/law/staff/content_giddings.ht m "The New Curriculum at Griffith" Flinders Law School (Adelaide): http://ehlt.flinders.edu.au/law/ Note especially: Practical Legal Training: http://ehlt.flinders.edu.au /law/PLT/ Feb 21, 2008 Future of Legal Education Conferen ce 39 South Africa

David McQuoid-Mason -Using your imagination to light up knowledge, skills and val ues for LLB students: clinical legal education and effective l essons (Keynote Address at the 2006 Learning in Law Inititative, UK Centre for Legal Education) -- Legal Aid Services and Human Rights In South Africa (From the on-line library of The Public Interest Law Institute (PILI)) -- The Delivery of Civil Legal Aid Services in South Africa , 24 Fordham Int'l L.J. 111 (2000) -- Access to Justice in South Africa, 17 Windsor Yearbook of Access to Justice 230 (1999) -Teaching Social Justice to Law Students Through Communit y Service: the South African Experience -Clinical Legal Education and the Role of Law Clinics in South Africa Feb 21, 2008 Future of Legal Education Conferen ce

40 South Africa (cont.) Filip Czericki, Filip Wejman & Izabela GajewskaKrasnicka, Legal Clinics in South Africa: Study Tour Report (Proceedings of the 2002 Fifth Annual Colloquium on Clinical Legal Education, Warsaw, Poland) http://law.gsu.edu/ccunningham/LegalEd/ SouthAfricareportPolandGroup.pdf Peggy Maisel, An Alternative Model to United States Bar Examinations: The South African Community Service Experience in Licensing Attorneys, 20 Ga.St U. L. Rev. (2004)

Feb 21, 2008 Future of Legal Education Conferen ce 41 South Africa (cont.) Thuli Mhlungu, Educating and Licensing Attorneys in South Africa , 20 Ga.St U. L. Rev. (2004) Asha Ramgobin, Access to Justice: the Social Responsibility of Law yers: Reflections on the Challenges Facing Public I

nterest Lawyers in Post-Apartheid South Africa; C ase Study: Balancing the Interests of Land Claima nts with the Need for Low Cost Housing in Cato M anor , 7 Wash. U. J.L. & Pol'y 77 (2001) University of Kwazulu-Natal: http:// www.nu.ac.za/law/ Note especially: Overview of Profession: http:// www.ukzn.ac.za/law/overviewprof.html Campus Law Clinics: http:// Feb 21, 2008 Future of Legal Education Conferen ce www.ukzn.ac.za/law/clc.html 42

India N.R. Madhava Menon -- In Defense of Socially-Relevant Legal Education (1996) www.gaje.org/History/MenonDefenseOfSociallyRelevantLegalEducation.htm - A Handbook on Clinical Legal Education (1998) Chapter 1: Clinical Legal Education: Concepts and Concerns (includes history of clinical legal education in India) Chapter 15: Development of Clinical Teaching at the National Law School of India: An Experiment in Imparting Value Oriented Skills Training Frank S. Bloch & M.R.K. Prasad, Institutionalizing A Social Justice Mission for Clinical Legal Education: Cross-National Currents from Indi

a and the United States , 13 Clinical Law Review 165 - 212 (2006) Feb 21, 2008 Future of Legal Education Conferen ce 43 India (cont.) V. M. Salgaocar College of Law (Goa): http:// www.vmslaw.edu/ Note especially: Cyber Legal Aid: http://www.vmslaw.edu/cyberaid/index.htm Legal Aid Society: http://www.vmslaw.edu/legalaid.htm Legal Aid Cells: http://www.vmslaw.edu/lacells.htm

Improving Access to Legal Aid as Part of Buildin g an Integrated Approach to Reduce Vulnerabili ty of Women and Children to Sex Tourism and Trafficking in Goa National Law Institute (Bhopal): http:// www.nliu.com/ Course of study: http://www.nliu.com/academics.htm Legal Aid Committee Feb 21, 2008 Future of Legal Education Conferen ce 44 Scotland Glasgow Graduate School of Law: http://

www.ggsl.strath.ac.uk/ Professor Paul Maharg Blog on legal education http://zeugma.typepad.com/ Transactional Learning Environments and Professional Legal Education in Scotland, Bar Examiner (Nov. 2005), pp. 9-13 " Valuing What Clients Think: Standardized Client s and the Assessment of Communicative Comp etence " (co-authored with Karen Barton, Clark D. Cunningham & Gregory Todd Jones), 13 Clinical Law Review 1 (2006) Feb 21, 2008 Future of Legal Education Conferen ce

45 Latin America Martin Bohmer, Access to Justice and Judicial Reform in Argentina law.gsu.edu/ccunningham/LegalEd/Bohmer(2002) Daniel Bonilla, Public Interest Law Clinics in Latin America law.gsu.edu/ccunningham/LegalEd/BonillaClinicsInLatinAmerica.pdf Mariela Puga Challenges for Legal Clinics in Argentina , The Law Teacher (2003) First Year of a Legal Clinic in the Northwest of Arg entina www.gaje.org/History/ClinicInNorhwestArgentina.htm

Feb 21, 2008 Future of Legal Education Conferen ce 46

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