Wegner’s Thoughts on Legal Education Reform: Legal Education’s Wicked Problems

At long last, I’ve completed (and Rutgers Law Review as published) an expanded essay on my own thoughts regarding the Carnegie Foundation’s study of legal education.  The essay is entitled “Reframing Legal Education’s Wicked Problems” and is available at SSRN (http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1533778) and on the Rutgers Law Review website (http://pegasus.rutgers.edu/~review/vol61n4.php).  I’ve tried to facilitate further discussion of several facets of the Carnegie study work (particularly by incorporating more excerpts of interviews with faculty and students about what is meant by “thinking like a lawyer” and how the related skills are taught).  I’m also happy to be able to contribute at some length to thinking about why upper division curriculum reform is so difficult, why it is so needed, and how it might be approached, particularly by taking into account issues relating to personal and professional identity that face students of this generation.   An abstract follows. –Judith Wegner (judith_wegner@unc.edu)


The essay, by one of the authors of Educating Lawyers (the “Carnegie Report”) offers fresh insights as to why legal education reform is so difficult, drawing upon the theory of “wicked problems” increasingly used in public policy, engineering and a variety of other fields. It demonstrates the application of that theory with reference to the oft-told tale of Rumpelstiltskin, and draws from that tale key lessons that can be used by those seeking to create a new prospectus for legal education in coming years. It then illuminates four “wicked problems: that have plagued legal education for years: how responsibility should be allocated for lawyer preparation; why change in content alone does not result in enduring improvements in legal education; whether “thinking like a lawyer” has a continuing place in legal education; and how the upper division can be fruitfully improved. In illuminating these problems, it also offers suggestions for how they might be approached and resolved.

After providing background on the characteristics of “wicked problems” and how they can best be approached, the essay focuses on “commonplaces” that underlie professional work and accordingly should drive professional education (including legal education), thereby providing a fresh framework for actionable steps to improve legal education and the practice of law.It next S discusses the need to attend both to visible and invisible dimensions of problems in order to shape meaningful solutions and explains the importance of often unrecognized dynamics of learning and teaching as major forces that play crucial roles in legal education and curriculum reform.

The essay then discusses the power of naming, offering an in-depth look at the nuances of “thinking like a lawyer” as understood by students and faculty members interviewed at sixteen diverse law schools in connection with the site visits that informed the Carnegie Report. It stresses the specific ways that first year case-dialogue instruction forces students to deal with uncertainty, one of the critical dimensions of professional practice, and unpacks the notion of “thinking like a lawyer” in ways that should prove illuminating for students and helpful for faculty members who seek to help students understand the resulting changes in epistemology that are so central to the first year of law school. It also considers the nature of the “case-dialogue method” and explains the ways in which that classic teaching technique plays a critical role in building students‘ abilities to think analytically.

Finally, the essay considers one of legal education‘s most intransigent “wicked problems”: the upper division curriculum. Using insights from the theory of “wicked problems,”The essay endeavors to explain why upper division curriculum reform is so difficult. It then offers four strategies for “renegotiating” existing assumptions and practices in order to improve the upper division curriculum. These strategies (including purposeful redesign on the large scale, rethinking content, rethinking pedagogy, and re-balancing teaching and learning responsibilities) each of which are very likely need to be used in concert in order for meaningful improvements to occur. In particular, this portion of the essay incorporates insights from educational psychology and work on professional identity development in graduate students to stress the ways in which effective advanced curricular innovations should attend to the challenges faced by the current generation of students who, much more than those in past decades, face challenges in navigating changes in personal identity at the same time they confront the need to develop a sense of professional identity before leaving law school.

One Response

  1. I know that all who care about improving legal education are indebted to Judith for her incredibly powerful contributions to the Carnegie team which produced Educating Lawyers. I very much look forward to reading this new piece.

    Judith’s post caused me to wonder:

    Do all legal education reformers believe the most “wicked” of problems are found in the second and third years?

    In terms of preparing law students for practice in representing individuals, can we demonstrate that we do more good than harm in how we teach the first year?

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