Teaching and Learning the Law: Why do it? Why do it like that?
By Rhonda Wheate - posted on 26 Augist 2022
Like most new university Law students, I drank the Kool-Aid. In lectures I learnt the authoritative cases that created the rules of law (and to a lesser extent, the legislation that created some rules too). Tutorials were for learning how to apply those rules to hypothetical legal problems (already handily categorised to match what had been taught in lectures). The occasional oral assessment tested my ability to recount those rules and our reasoning in verbal form, but more usually I answered written exam questions based on years of previous exam papers. In the Diploma in Legal Practice (a year-long course after the LLB) I learnt a little bit about writing letters, interviewing clients, negotiating, mediating, and presenting a persuasive argument. So far so regular. This is how law school is done.
It was not until about twenty years later, when I began working at a university legal clinic - where law students give legal advice to real clients – that I began looking into why law schools teach law the way they do. I discovered that prior to the late 1800s law had been taught by apprenticeship. Aspiring lawyers would be apprenticed to a practitioner who would teach them how to function as a lawyer and deliver legal services to their clientele. At this time (have times even changed?) lawyers had a terrible reputation; corrupt, avaricious, willing to say anything for any client so long as they were paid…
Langdell, the inaugural Dean of Harvard Law School from 1870 to 1895, proposed an end to this situation by formalising the teaching of law, making all aspiring lawyers – and in time, virtually the whole of the legal profession – learn the system of law, through studying the most authoritative cases in the jurisdiction. This more ‘scientific’ method of teaching and learning, by drawing ‘rules’ from the highest court cases in the land, was prescribed as the solution to a dissolute and haphazardly educated profession, whose only defining characteristic was thought to be its disrepute.
And so the ‘case method’ of studying law, by figuring out what part of the judgment was the ratio decidendi (the reasons for the judge’s or judges’ decision) and which parts could be more easily dismissed as obiter dicta (everything that wasn’t the ratio) was born. Students of law were required to undergo formal training and assessment well outwith what had been the norm in apprenticeships, and the new androgogy of teaching and learning law spread across the globe. “Common law” countries (the USA, Canada, Australia, New Zealand and the UK (including Scotland within that umbrella for this purpose)) still mostly teach and regulate the influx of new lawyers in this way: Based on the cases and the rules derived from those cases.
Two things have happened since Langdell revolutionised legal education. The first is rather more of a non-event: Law and lawyers still don’t have a brilliant reputation. The Langdellian method of teaching the law has not changed this. (Perhaps there is something more fundamental to the problem than just learning the ‘rules’?) The second event is a work in progress: Some jurisdictions are moving away from requiring a university education for lawyers. For example, the Solicitors Regulation Authority (SRA), the organisation which oversees the admission and conduct of solicitors in England and Wales, no longer requires aspiring lawyers to obtain a law degree. Rather, they may pass a set of examinations on the law, and how the applicants acquire the ability to pass these exams is not prescribed by the SRA. There are many and varied reasons for this, and this change is unlikely to single-handedly improve the work or reputation of lawyers (and is perhaps unlikely to improve them at all).
What does all this mean for law schools? What should we teach and how should we teach it? Undoubtedly the law can be taught as an art form. Law contains plenty of beautiful arguments of logic and passion, stirring movements bringing society forwards (the recognition of rape in marriage) and backwards (the current SCOTUS), and plenty of material for sociological, criminological and anthropological studies ad infinitum. But ultimately (good) law is a tool for society, for families and individuals, for business, for governments, organisations and institutions, for the regulation of democratic civilisations.
Just as the pre-Langedellian approach of apprenticeships was too single-minded, depriving incoming lawyers of the theoretical aspects of law, the subsequent focus on theory and universal rules deprives incoming lawyers of the appreciation and experience needed to practise law effectively. Being a lawyer of any description requires grounding in theory and in practice and an appreciation of what runs right alongside the law in real life – technology, business, the environment, the work of government, ethical dilemmas and moral choices, the concerns of the people.
There are numerous ways to achieve this broad but focussed education, and they work best in combination, not isolation. Teaching legal ethics, teaching through experiential learning, teaching alongside other disciplines, engaging in meaningful life-long learning, dismantling the artificial barriers between law and everything else, are all important. Think of it this way - We should not look at Langdell’s achievement as being ‘perfecting the way law is taught’, because his achievement is equally about proving that legal education can and should be wholly revolutionised; and it needs to be revolutionised again.
Developments in technology, medicine, business, and society have ruptured traditional expectations of the legal profession. Like everyone else, lawyers can no longer rely on job security, professional silos, and a steady road to riches and retirement based on what they learnt in university. Instead we face changing demands from clients, from courts, from regulators, governments, our families, society, and the environment. In this context, it does not make sense to stick rigidly to the old ways of learning and teaching; Langdell certainly wouldn’t.
Lawyers (and law schools) need to be able to deliver the law in a way that serves society, governments, businesses, institutions and people. Otherwise we are a glorified golden tool that doesn’t properly fit any of the machinery of our society; law remains beautiful, complex, and interesting, sure, but useless for serving efficiently or effectively.