Searching for Context: A Critique of Legal Education by Comparison to Theological Education
Harrison, Melissa, Texas Journal of Women and the Law
Texas Journal of Women and the Law Volume 11
This paper compares the history, present condition, and future of legal education with Protestant theological education in America. Part II describes the history of legal education in America in the nineteenth and twentieth centuries. It also offers major critiques of legal education and offers suggestions for reform of legal education. Part III discusses the history and criticisms of Protestant theological education. Part IV analyzes the problems that both law schools and theological schools are facing and concludes that these problems are remarkably similar. Finally, an approach to law school reform, based on models present in theological education, is proposed.
II. Legal Education in America
A. History of Legal Education in America
Legal education started in this country under the apprenticeship system. Litchfield, the first private American law school, was founded in 1784. The first private law schools differed from apprenticeships in only two ways: "(1) The students studied in a group, and (2) a teacher interpreted what the students observed in their daily contact with lawyers and the courts."1 It was in the nineteenth century that law schools began to be affiliated with universities. In 1870, Dean Langdell at Harvard Law School introduced what would become the model for legal education to this day: the casebook method for the "scientific" study of law. "The study of law as a science assumed that doctrinal study of cases would disclose certain immutable principles, and that the graduate armed with knowledge of these principles was prepared to enter law practice." The whole country followed Harvard's lead, adopting curricula consisting almost entirely of appellate case study.3
The historical relationship between law schools and research universities has affected the beliefs about what is an appropriate education in the university law school. Historically, since university education was believed to be theoretical, it was thought that legal training should be theoretical as well. More and more, the study of practical knowledge ceased to be important in American law schools.
In 1921 the American Bar Association (ABA), in a report commissioned by the Carnegie Foundation, warned of the education problems with the casebook method.4 The problem with the Langdellian method is that it teaches only one skill, "analytical reasoning."5 To correct this problem the University of Chicago started a research and writing program, and lawyers such as John Bradway and Jerome Frank argued that law should be taught through representing clients.6
Law schools continued to try to address these problems. After World War II schools began to require legal research and writing.7 First-year writing courses have been "in a state of constant flux at most law schools ever since, as law schools have experimented with a great variety of structures in order to achieve better results from limited resources. More recently, many schools have added an upper class research and writing requirement, which typically is satisfied by the completion of a seminar paper."8
The legal clinic movement, the next step in reforming legal education, began in the 1960's. The goal was "to help the legal profession meet its new constitutional and ethical duties to provide legal services to the poor."9 The development of clinical programs has largely continued in the 1980's and the 1990's, limited by available resources. In the 1970's, as a result of the Watergate affair, the profession started requiring law schools to teach legal ethics.10
In 1979 an ABA task force was appointed to study "the role of law schools with regard to lawyer competency. It issued recommendations for broadening the skills imparted to law students as well as the methods used."11 The major modern study of legal education began in 1989, when the Council of the section of Legal Education and Admissions to the Bar of the ABA established a task force to study the state of legal education. …