This next post comes to us from a new blogger on the Best Practice’s Website, Benjamin Madison, a Professor of Law at Regent University School of Law:
In The Bramble Bush (1930) Karl Llewellyn observed: “It is not easy to turn human beings into lawyers. 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.” Over seventy-five years later, two studies—Best Practices for Legal Education and the Carnegie Institute for the Advancement of Teaching and Learning’s report, Educating Lawyers—reached remarkably similar findings. Both studies concluded that law schools’ preoccupation with the analytical side of lawyering has produced a growing number of “legal machines.” The recent studies do not label modern law graduates “legal machines.” However, their description of the modern graduate—analytically sharp, but jaded and indifferent about values—sure sounds like the same type of lawyer Llewellyn feared.
Llewellyn goes on in The Bramble Bush to explain how the last two years of law school should be used to return students’ “common sense” and to “bring [their] ethics out from ether.” He apparently assumed that, by studying more specialized areas, students would naturally move away from strict logic to a blend of legal reasoning and social concerns. Llewellyn did not explain how law professors should cultivate this transformation. And the question of how to do so, though at times raised previously as an issue in for instance the ABA’s McCrate Report, has not been thoroughly addressed until the publication of the two 2007 reports. The Carnegie Institute in Educating Lawyers and the Clinical Legal Education Association’s in Best Practices for Legal Education comprehensively examined and surveyed law schools, students, lawyers, and judges about the state of legal education. The reports echo each other in many respects, particularly on the need to cultivate in law students the need to develop as whole persons.
Unfortunately, the reports conclude, law schools are failing in this goal—and have been failing for some time. Educating Lawyers and Best Practices describe empirical studies describing interviews with law students when they entered school, at regular intervals thereafter, and finally when the same students graduate. These studies reflect that most law students enter law school with ideals, passion, and goals aimed at helping others. These values, however, are steadily excised as the student progresses through law school. The primary reason students’ ideals, values, and passion are lost, the reports note, has to do with law schools’ exaggerated emphasis on legal analysis. The prevalent method of emphasizing logic and dismissing students’ concerns about justice and principles as, at best, less significant and, at worst, irrelevant to legal analysis leads law students to an obvious conclusion—they should value legal analysis as their “key” to success and abandon their ideals and values as naïve dreams. The reports explicitly recognize that an educational approach that produces such results—intentional or not—damages students, sometimes irretrievably, and clearly affects the manner in which they practice law. To be sure, the reports do not urge schools to dispense with legal reasoning. They do, however, encourage law schools to balance the emphasis on logic and analysis with a recognition that formation of a professional identity will be as important in law school as developing analytical and lawyering skills.
Indeed, perhaps the boldest of the proposals is Carnegie’s recommendation that law schools spend one-third of the law school experience helping students explore their values and how those values will translate into the way they practice law. Developing a “professional identity” is Carnegie’s term for the process that would then take place as law students (a) develop a sensitivity to the profession’s values and to their own values and (b) engage, in the law school setting, situations that will test their adherence to the values to which they aspire. Their professors can foster students’ efforts to form a professional identity by presenting the students with practical legal scenarios that raise a conflict in values, and then by encouraging students to explore and resolve the value conflict. Reflection, it seems, is a key to the process of forming a professional identity. Without such encouragement, many students will go into practice with a vague sense of “what a lawyer should be.” Conversely, with intentional cultivation of students’ values and identity, a student can decide “what kind of lawyer the student wants to be.” In short, the process of cultivating a professional identity will lead students to emerge from law school not only with a sense of the profession’s values and their own values, but also with an awareness of the situations that will tempt them to compromise their values.
As Mary Lynch observed in her 10/21/12 blog, organizations such as Educating Tomorrow’s Lawyers (headed in part by William Sullivan, the lead author of Carnegie’s Educating Lawyers) are helping law schools and professors engage the process of encouraging students to develop a professional identity. Moreover, we are now seeing more teaching materials designed to allow professors to integrate teaching methods that address professional identity formation into their courses. Anyone interested in this development in legal education should contact Educating Tomorrow’s Lawyers and consider joining that consortium or, at the least, discussing with professors in the member schools how one can begin the process of helping students maintain their values and ideals, even as they learn to think like lawyers.
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Best Practices for Legal Education 
First, if you want to have a “moral” profession, then the profession – and society surrounding it – must be willing to say that certain behavior is “moral” and certain behavior is “immoral.” I think our society as a whole has lost the ability to discern moral behavior due to our postmodern attitude. If society cannot agree on a standard morality because “anything goes,” I think that the legal profession is going to have a hard time imposing some ethical standard on lawyers who have grown up in a world where they are told “what you believe (about morals) is what you believe, and what I believe (about morals) is what I believe,” and that is okay – even if the two moralities are opposed to each other and cannot logically coexist (i.e. both be true). Second, our professional responsibility classes (if one is offered at a law school) should not be focused around “how close to the line can I get without crossing it.” Of course, you want to know the law, i.e., know where the line is, but you should also be thinking “is what I am doing virtuous?” Third, I think law schools would greatly benefit from a class or two on ethics. What would be better is if every class in law school incorporated individual reflection and class discussion on any moral issues implicated as it came up in the subject matter. And open class discussion needs to be facilitated by an objective moderator so that all views can be heard – Christian as well as the other views.
My greatest understanding of a legal concept has come when I think about the rationale for the the legal concept I am applying. When I understand the rationale I am able to evaluate on a personal level whether I and more importantly my client would support the concept and the resulting application.
In Alice in Wonderland the King told Alice to “[b]egin at the beginning and go on till you come to the end: then stop.” And so, in addressing the very real need to support the formation of lawyers who are “whole persons,” I will try to avoid the chaotic order of Lewis Carroll’s Wonderland by starting at the beginning. As lawyers we have the unique privilege of acting as the advocate for another individual. We do so within and in support of a judicial system that is not based on personal ethical codes, but rather on laws that guarantee the necessary safeguards for the protection of the rights of person and property.
While the Carnegie Institute in Educating Lawyers reports discussed by Professor Madison attribute the loss of students’ “ideals, values, and passion” to an “exaggerated emphasis on legal analysis,” I suggest that there is another reason for this loss. Law students’ loss of passion has less to do with law schools’ focus on legal analysis and more to do with their misunderstanding of the legal profession and inability to manage the tools provided by their legal training. It seems that students do not understand that it is in acting as advocates within our judicial system that they promote justice and help people. It seems that students do not understand how the use of their newly acquired tools of legal analysis can advance justice. It also seems that students may find that their ideals and values do not withstand the dissection of legal analysis, and they are left wanting.
To help develop whole persons who are able to synthesize their initial values and ideals in light of the new tools of legal reasoning, instead of taking the approach the Carnegie reports suggest—placing less emphasis on legal analysis and more on value analysis—I believe that there is another route that does not compromise the necessary training in legal analysis. The route I suggest maintains the emphasis on legal analysis and challenges students to engage in value analysis on an ongoing basis throughout law school. I suggest that law schools incorporate weekly workshops of in which they hear from and interact with legal professionals who themselves have successfully worked through challenges to their values and ideals. Schools should draw on the expertise and resources of groups such as the American Board of Trial Advocates to add to their students’ training, but they should not forego training in legal analysis.
First, legal analysis and values, passions, and ideals are not necessarily mutually exclusive. Law schools that place great emphasis on legal analysis do not require that students abandon their ideals and passion for justice. To the contrary, a proper training in legal analysis will equip students to better promote their ideals, values, and justice. In addition, a law school that foregoes emphasis on legal analysis in exchange for a training in value analysis ironically may do a greater disservice to their students if the school only advocates a particular value-based resolution. Such over emphasis can limit students’ ability to analyze and defend their position, leaving them wanting when challenged in the real world of practice. Finally, legal analysis is the unashamed key to success for a lawyer who values the justice system. Legal analysis is the necessary key to be an effective advocate in our legal system, and it is through our system of laws that justice is promoted.
Following the advice Alice was given, I will prepare to stop as I come to the end with a final word about the loss of values and ideals. I do not believe that the young lawyer’s inability to incorporate her own convictions is necessarily the result of her three-year legal training. Rather, I think that many students begin law school with values and ideals that have not been tested—whether because of lack of exposure or lack of thorough analysis of these ideals. While the three years of law school may leave the student disillusioned by the behavior of their fellow human beings, they can also finish law school more confident in their values if those values withstand the scrutiny of legal analysis.
Yet, I wonder if many students are ill equipped to identify and part with values that would find home in Lewis Carroll’s Wonderland. If primed to accept the prevailing unconditional call to relativism, they may find themselves just as ill equipped as Alice to answer the Caterpillar’s question, “Who are you?” I believe that law schools can best support students’ ability to answer this question if they do not forego legal analysis but rather supplement this training with exposure professionals who successfully navigate the waters of practice and refuse to call up, down, and down, up.