by Jack L. Sammons*
 

Legal education, the ethical training ground for lawyers, is in desperate need of a conversion from the two schools of thought that have dominated our educational inquiry for some time now. We are surely trapped in a seemingly endless dialogue between what I will call here the "traditionalists" and the "technicians." The MacCrate Report,⁽¹⁾ coming down rather heavily on the side of the technicians as it did, did absolutely nothing to change this.⁽²⁾ Sometimes we understand this dialogue as between the classroom and the clinic, or substance and skills, or theory and practice. I am not making any of these distinctions here, however. There are, for example, traditionalist clinicians--I know; I was one--and there are certainly classroom teachers who are technicians.

The traditionalist and technician schools of thought rely upon competing assumptions about the central constitutive components of the practice, legal pedagogy, and the legal apprentice's relationship to the practice. Traditionalists assume that "thinking like a lawyer" is the central constitutive component of the practice. It is central in the same way that practical wisdom is central to all Aristotelian virtues because the ideas are the same. "Thinking like a lawyer," as the practical wisdom of our practice--although traditionalists have seldom expressed it this way--is both the practice's primary internal good and its primary product. It is not a skill; it cannot be well learned by teaching its parts, nor can it be well measured by its products. It is much more a matter of what a good student of the law will become in the process of study than of what that student can do at the end of it. It requires nothing less than a transformation of the person, an acquisition of a manner, bearing, and style of thought for life.

The traditionalists' assumption about legal pedagogy is that a particular teaching methodology--very poorly defined, but very widely shared and involving a guided reflective encounter with the materials of law study outside the practice context--will initiate good students into this desired manner, bearing, and style of thought and, most problematically, that this initiation will somehow transfer to actual practice.

Finally, traditionalists assume that once this initiation is completed good law students will submit themselves to the authority of the craft for the maturing of their practical wisdom and for almost everything else needed for the exercise of good judgment and strong advocacy. The apprentice's primary motivation for doing this will be the internal goods of the practice.

For technicians, the central constitutive component of the practice of law is the acquisition and proficient utilization of certain techniques in the performance of identifiable lawyering tasks. Practice can be well learned by teaching its parts and it can be well measured by its products. Learning the practice of law for technicians is more a matter of what the good student can do at the end of law study than of what he or she will become in the process.

The technicians' pedagogical assumption is that a particular methodology, one that is experientially based within a replicated, but controlled, practice context will initiate good students into the constitutive techniques of practice and, most problematically, that this initiation will somehow provide a sufficient basis for generalization to all practice contexts.

The technicians' assumption concerning the legal apprentice is that once good law students are initiated into the techniques, further practice is needed only to complete the acquisition. Legal apprentices will submit themselves not to the authority of the craft, but to that of technical experts for the development of the expertise that good lawyering requires. Often this submission will be to a non-legal technician for lawyers seldom have the focus necessary to become technical experts. The apprentice's primary motivation for doing this will be the external goods that technical expertise can provide for the lawyer and, most important, for the lawyer's clients.

My terse description of these dominant schools of thought makes it easy to see why both schools are in trouble. The traditionalists' assumption about a virtue as the central constitutive component of the practice has been an extremely difficult position to maintain for a long time. There are many reasons for this. For present purposes the most important may be this assumption's dual dependency upon a practice that is badly corrupted and a teleology of that practice that has remained muddled since the failure of its earlier republican vision. As a result, the traditionalists' central constitutive component has become badly impoverished: so impoverished, in fact, that traditionalists lack a vocabulary adequate to describe it. For example, traditionalists use the awkward combination of opposites, "sympathetic detachment," to describe a relationship with clients essential to its exercise because they know of no simpler way of saying that the rationality of our particular practical wisdom as lawyers depends on an underlying emotional involvement.

Understandably, out of these difficulties and others, have come corruptions of the traditionalists' view. Chief among these is a shift from a focus upon the effect the study legal materials is to have upon students to a focus upon the materials of law themselves and, especially, upon the teacher's reaction to these materials. In simplest terms, rather than providing a shaping experience for the students, these corrupted traditionalists now provide a message. These are the policy mongers in legal education, and they are everywhere.

Part of what drives this corruption, and others like it, is that in its current impoverished state the virtue of "thinking like a lawyer" is too insubstantial to provide the orderliness and the authority that teachers need to feel comfortable with what they do as teachers. So we see law schools corrupting the traditionalist view by providing substitutes for "thinking like a lawyer"---economic analysis in the case of George Mason---that have an apparent orderliness and an apparent authority which, oddly enough, seem to impose less upon the autonomy of our students than teaching the practical wisdom of lawyering now would. But George Mason is just an easy example; far more prevalent are those traditionalists who substitute thinly disguised claims of a purportedly self-evident and universal ethical analysis for the practical wisdom of lawyering. We hear this in those who talk of a "humanistic" approach to lawyering or who seek to deliver political messages from the left or from the right or from nowhere.

Technicians, however, offer no relief from any of this, because their assumption about technique as the central constitutive component is almost as difficult to maintain. They, too, suffer from the impoverished conception and inadequate vocabulary that plague the traditionalists. This would surprise many for technicians notoriously eschew the need for any overall conception of a practice. Legal education technicians, however, cannot do what technicians in other disciplines typically do to avoid overall conceptions, that is, focus attention upon the component parts of a practice and ask how each could be done better in its own terms. For many reasons, our practice has had no adequate understanding of its own techniques to offer to those technicians who wish to teach them. Good technicians, of course, know this, and thus they know that learning the practice is not a matter of doing better what is already being done. Learning comes instead from critical examination of what they perceive as the practice's failures, often from points of view and disciplines that we have thought of as quite external to the practice of law. In essence, then, our technicians are really attempting a recreation of the practice. Yet this is a highly problematic thing for a technician to do, for it demands that they articulate the conception of a good practice that drives their recreation of it. Our technicians are thus faced with this puzzle: what a good interviewing technique is, for example, depends upon what a good interview is, which depends upon what good advocacy or counseling requires, which depends upon what good lawyering is, which depends upon an adequate description of the activities of lawyering, which depends upon---well, it just goes on for any thoughtful technician, leading very quickly to the types of questions the technician's approach is uniquely unsuited to and, in fact, quite incapable of addressing.

The upshot is that technicians, like their traditionalists counterparts, find themselves relying upon an impoverished central constitutive component and lacking a vocabulary adequate to describe it. In this state even the technician's techniques seem too frail to provide the orderliness and authority that teachers need to feel comfortable with what they do as teachers.

These difficulties produce corruptions of the technicians' view to match those of the traditionalists. One prevalent corruption occurs when a technician substitutes poorly considered conceptions of practice in place of the authority the real practice should have for a truer technician. We see this regularly, for example, when descriptions of the lawyer as a "problem-solver" are offered as a foundation upon which the central constitutive components of the technician could be built. (This description only ignores the central issues of what qualifies as a problem and as a solution. It assumes that the problems we address as lawyers have solutions we can provide. And it both broadens and narrows our function without any offered justification, and so forth.)

The traditionalists' problems are created by their reliance upon a central virtue that, whatever it once might have been, is now much too abstracted from the practice. Traditionalists' assumptions offer an Aristotelian way of determining what good lawyering could be, but these assumptions provide no coherent methodology for either confirming or producing it. The problems with technicians' assumptions are exactly opposite. Their assumptions offer a methodology for confirming and producing good lawyering, but no way for determining what good lawyering could be. Obviously these problems are very closely related. In simplest terms, we could say that one school knows where it is going and why, but not how to get there, while the other knows how to get there, but not where it is going or why.

We could not have asked for a clearer example of this problem than the MacCrate Report. MacCrate struggled to compensate for technicians' inadequacies by resorting to "values" identified and defined completely apart from its description of the practice.⁽³⁾ The clear, but unstated, message is that none of what has been described as competent lawyering has anything to do with these values. What it does concern, we do not know or cannot say. Yet if this is the case, by what possible authority could the MacCrate report justify its particular description of a good practice? It is certainly not, as claimed, from the practice itself because, good legal technicians that they are, the drafters of MacCrate were quite clearly recreating the practice.

What MacCrate literally relied upon in its efforts to return value or, as I would put it, meaning to the practice it has described is the personal commitment of each lawyer--not as a lawyer, but as a person--to do the right thing. What this means I do not know. It is exactly what the traditionalists thought law students were incapable of doing until they had been adequately initiated into the virtues of the practice! I do know, however, that the message this gives to our apprentices is that the practice has no internal goods to offer, and therefore no ethical motivation of its own. All the apprentice can acquire in practice is additional expertise. In fact, this is precisely how MacCrate defined excellence in the practice: the acquisition of additional techniques beyond those MacCrate identified as centrally constitutive of the practice.

How any of this addresses the problem that drove MacCrate initially, that is, how to improve the competence of the bar, I don't know either. By taking this technician's approach, MacCrate addressed itself to new attorneys. Yet I know of no study showing that the problem of competence in the bar was that new lawyers lacked technical proficiency. This approach conveniently masked what many believe is the real problem of competence, when competence is understood more fully: the corruption of the true excellences of our practice by large law firms and large clients. MacCrate masked this real problem because, if technical proficiency is the central constitutive component of the practice, these firms are doing nothing wrong.⁽⁴⁾

The position we are in then is that neither of the dominant schools of thought can provide a unified conception of the practice and of learning adequate for making sense of curricula decisions or teaching strategies. Nevertheless, my hope is that each brings to the other at least part of what the other lacks. If that is true, what we need now is a latter day Aquinas who can fuse these competing schools of thought into a single and satisfying conception that does not unduly offend either school of thought.

This, then, is the conversion I think legal education needs. It is a conversion to technical-traditionalists or traditional-technicians who are willing to examine the virtues of the traditionalists' good lawyer with the technicians' methodology. We need technicians willing to ask what these virtues are so that they can be adequately understood for teaching and traditionalists willing to help provide the answers.

And how might a school go about doing this hard curriculum work? I suggest that a school should start by seeking faculty agreement on what kind of lawyers its wants its students to be. I do not mean what they, the students, should be able to do, although that is part of it, but what they should be. This is, of course, the very last conversation that most faculty members will want to have. Yet a law school cannot be well designed without it. I would ask faculty members to reject the obvious objection that there is too much diversity in the practice to permit such an analysis because, if I am correct in my analysis, then all students should be prepared for the general practice of law. It is only in preparation for the general practice of law that students can begin acquiring the unique set of virtues that distinguishes us as a profession. The theologian, Stanley Hauerwas, often says that the only remaining moral training grounds in America are law schools and the U.S.M.C. This would be even truer if law schools borrowed the Marines' idea that all Marines must be trained for the infantry because it is in training for the infantry that they become Marines.

What would be needed next, after these discussions, would be to design a structured progression toward a general practice of law informed by a traditionalist's understanding of the craft as a craft and an ethical enterprise, or, more accurately, as an enterprise with an ethic. In other words, the curriculum design should convey the message that success in the practice of law is something internal to the practice. Curriculum decision-making could then be driven by those internal criteria within the practice of law - - practical wisdom, rhetorician virtues, and so forth - - by which we can measure the success of a life well-lived in the practice.

But no school should be satisfied with traditionalists' abstractions or their assumption about how this would happen. Instead, good pedagogy requires that students progress toward practice by being required to perform lawyering tasks in increasingly complex contexts ending in the sixth semester in simulated practice. In essence, then, schools should apply a technician's mean to a traditionalist's end and, in the process, add substance to the former and detail to the latter. To do this well, a school would have to work backwards from what it decided it wanted its students to be and to be able to do in their final semester. Schools need to ask, as specifically as their situations allows: How does one progress toward becoming the kind of person who can perform well in the way we have defined it in sixth semester simulation courses like these?

Now, do schools, collectively, need to think through all of what I would call the technicians' progressions that would be necessary to answer this question carefully? Do schools need, for example, to catalogue the type of thinking requisite to thinking like a lawyer-- the knowledge, the skills, and the attitudes--and assign these to courses? The answer is no--of course not--for now that is far too complex a task for any law school to do in a useful or meaningful fashion. Instead of a catalogue, schools should seek a structure in which a general progression toward the craft of the general practitioner could happen for all students. If a school does this well, if its choices reflect an adequate and well-informed understanding of our craft, then many of the necessary specific technicians' progressions should fall neatly into place.

And I think they will. What I have been describing for you is the process Mercer Law School went through in designing its Woodruff Curriculum. Here, then---in a shorthand that I hope is understandable to most readers of this edition of the Law Review---is a list of some progressions I have seen in the Woodruff Curriculum:

a. A progression through the primary role functions of lawyering: legal analyst, legal counselor, and multi-faceted legal advocate--an advocacy broadly understood to carry forward the virtues of counseling and dispute resolution--the latter steps assuming the previous ones just as they do in practice.

b. A progression in earlier parts of the curriculum through the materials of law study: cases, statutes, administrative regulations, and external norms. The progression is from case analysis to case analysis within statutory analysis to case analysis within regulations issued pursuant to a statute--a progression through increasingly complex analytical contexts.

c. Task progressions throughout the three years. For example, all students will have introductions to counseling, negotiation, and other dispute resolution processes. Many will have specific skills courses in these tasks, and all will take Advanced Skills Courses in which they refine their performance of these tasks in particular practice settings.

d. Subtle progressions in substantive areas (similar to what you may have in your own curricula). For example, evidence progresses from the appellate role to a broad trial role within a limited context to full scale trial practice to advanced evidentiary problems in trial practice. Again, this is a progression of increasingly complex contexts.

e. Another progression in the knowledge of the systems studied. This builds from a first year start in legal systems (the study of the organizations, institutions, and systems unique to the lawyer's world--not just the law governing them, but the organizations, institutions, and systems themselves) toward, for example, Health Care Law in which there are numerous interlocking systems that provide realistically complex settings for problem solving, advice giving, and advocacy. The students' understanding of the lawyer's role broadens through this progression in the complexity of systems.

f. Progressions in cross-cutting skills, so called by clinicians because they cut across all courses and subject matter. Purposive thinking is an example of a cross-cutting skill as is the preeminent lawyerly virtue of good judgment.⁽⁵⁾ Another important example: The moral capacity of seeing, listening to, understanding, and sometimes accepting the other side. In the first year, we ask students to internalize this capacity by shifting the source of their thougths from themselves to that of a hypothetical judge. The second year counseling courses show this capacity to be part of what lawyers offer to clients as the students come to understand that one of the lawyer's central ethical questions is: What might the other side say about this? The third year expands this capacity to a much broader context in a Dispute Resolution Workshop. In this context, the students come to see understanding the other side as essential to any legitimate analysis of the problems clients bring to us and to any form of dispute resolution. Finally, sixth semester Advanced Skills Courses further develop this capacity in the full context of advising clients and representing them in specified substantive practice settings.
 

g. Many other cross-cutting themes: idea generation, ends/means thinking, peripheral visions, etc. And these seem to progress through the three years as well. We could, of course, try to teach these directly as some technicians do, notably Dean Paul Brest of Stanford,⁽⁶⁾ but we were daunted by the problems of generalization and transference.

h. Finally, but importantly, a progression in faculty relations with our students. It is a progression toward the Advanced Skills Courses and required final semester seminars. To work well, these require relationships of professional friendship, of camaraderie within a disciplined profession. Ideally each student can become uniquely valued for what he or she brings to these sixth-semester courses as a lawyer.

Now, if I am right that these progressions exist, then their presence confirms for me that the process I am recommending is at least on the right track. As faculty members continue to discover these progressions in our teaching, we can do what technicians have always done, but what traditionalists never did: We can make these progressions a more conscious part of what we are trying to accomplish. In this way, and over time, the curriculum will tell us, if we listen carefully enough, what we should be trying to accomplish in our particular courses.

Yet listening carefully to a curriculum may require more than most teachers are willing to give for very long. Accepting a traditionalist's understanding of the practice means not only that much work is to be done on the technician's side, but also means that we need to articulate our conception of the good lawyer far better than the traditionalists have ever done. Virtues as standards for a practice work well, I believe, only when they are adequately located within a functional understanding of what it means to be a good practitioner. This functional understanding in turn must be located within a strong tradition of inquiry about the practice in which the functional understanding itself is under constant challenge. To arrive at such an understanding of our practice, therefore, requires far more truthful conversations about who we are as lawyers than most of us are willing to have at faculty and curriculum meetings.

Still, I think we should. For the curriculum decisions law schools are arguing about under are more important than we have recognized thus far in any of our conversations. They are about the meaning of our life's work through our responsibility for the work and lives of our students. They are about how our story will be told when it is told truthfully. So, I want to suggest in conclusion something you probably don't want to hear--I don't want to hear it either--and that is that we are not only entitled to get upset about curriculum matters, we are obligated to do so. In Aquinas' 13th Century France, the battle for control over the curriculum of the University of Paris was understood to be a struggle for the souls of students. I think they got its importance close to right.
 

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* Griffin B. Bell Professor of Law, Walter F. George School of Law, Mercer University. This is a revised version of a speech delivered at the AALS Mini-Workshop on Professors in the Profession: Skills and Values in Legal Education. My thanks to Linda Edwards, Joe Claxton, Sidney Watson, Ted Blumoff and Hal Lewis--all colleagues at Mercer-- for extremely helpful comments on earlier drafts, to Bob Condlin for sharing his thoughts on MacCrate with me, to Tim Floyd for his disagreement and support.

1. . Report of The Task Force on Law Schools and the Profession: Narrowing the Gap, Legal Education and Professional Development--An Educational Continuum, ABA Section of Legal Education and Admissions to the Bar (July 1992) [hereinafter MacCrate Report].

2. . "Sadly, there is little reason to expect that the MacCrate Report will spark any more than a tired, unenthusiastic and sometimes excited reprise of the skills instructions debate of the past sixty years. It responds to none of the concerns traditional law faculty members have about skills instructions. In fact, it is hard to imagine a more mistaken reading of those concerns. Where moral and political theory is called for, MacCrate provides technique. Where critique is needed, MacCrate taxonomizes." (Footnote omitted.) Robert J. Condlin, MacScholarship: (Yet) Another Perspective on the MacCrate Report, Lawyering Skills, and Legal Education, ms. on file with author. .

3. . See, e.g., MacCrate Report §§ 2.1, 3.3, & 4.1.

4. . I have had good friends tell me that in some small way I may be to blame for this and for that I hereby apologize. Parts of MacCrate are based on work that Dr. Russell Cort and I did at Antioch Law School more than fifteen years ago under the leadership of Edgar Cahn. H. Russell Cort & Jack L. Sammons, The Search for "Good Lawyering": A Concept and Model of Lawyering Competencies, 29 Clev. St. L. Rev. 397 (1980). What Russ and I wanted was a system of evaluation of lawyering performances that could be used, after collection of sufficient data, to determine what worked and what did not work pedagogically. We were certainly not trying to design a checklist for educational or lawyer decision-making; we were, instead, trying to create as neutral a system of diagnosis and evaluation as we could. (Perhaps this was naive of us.) As applied to lawyering, we assumed that all lawyering tasks involve some identifiable array of competencies--a trendy term used at the time to distinguish the identified thing from Bloom's taxonomy with its knowledge, skills, and attitudes. We then set out to identify these competencies so that the pedagogical methods of teachers, law schools, continuing legal education programs, law firms, etc. could be evaluated in their terms. If we could convince enough people to analyze student lawyering performances (in the clinic, in the classroom, and in practice) in competency-based terms, we believed, we could start them on a more rigorous method of analysis that could eventually lead to good guidance on teaching methods, course design, curricula design, and individualized instruction, especially remedial instruction (the driving force behind the project). MacCrate had almost nothing to do with our efforts. Instead, MacCrate, I think, offered a normative description of a particular practitioner's performances at some unspecified stage in his or her development.

5. . If we want students to see a progression towards good judgment as an excellence of our practice--as one reason unique to lawyering, for being a lawyer--then we must show them that this good judgment is not the good judgment they bring with them, although that judgment can be its beginning. It is, instead, the specific good judgment developed through the practice and the study of law.

6. . See, e.g.. Paul Brest and Linda Krieger, On Teaching Professional Judgment, 69 Washington L. Rev. 527 (1994).