Paul L. Caron

Tuesday, November 3, 2015

How Legal Education's Doctrine/Skills Divide Reproduces Toxic Hierarchies

Lucy A. Jewel (Tennessee), Oil and Water: How Legal Education's Doctrine and Skills Divide Reproduces Toxic Hierarchies, 31 Colum. J. Gender & L. 111 (2015):

The longstanding categorical distinction that elevates doctrinal teaching over skills teaching continues to harm the profession of law. In this Article, I consider two distinct effects produced by the doctrine/skills dichotomy.

First, the dichotomy is responsible for reinforcing class, gender, and race segmentation in legal education, which limits the quality of instruction that law schools can provide and abets the reproduction of existing power relations in the legal profession and society at large.

Second, the antipodal positioning of doctrine and theory over skills and practice harms law schools’ ability to prepare a new generation of law students to engage in both critical lawyering and law reform. As American society becomes increasingly unequal and as its criminal justice system barrels well past the breaking point, we desperately need the next generation of law students to participate in a new era of structural law reform. But unlike the last major era of reform in the United States (the Progressive Era), where ill-conceived top-down solutions were theorized and implemented by a small subset of elite lawyers, this time, reform should emerge from a coalition of lawyers hailing from all law schools and all levels of society. Even in legal education’s current situation, with tenure for law professors on the chopping block due to declining student enrollment and legal employment prospects, law schools should commit to collapsing the false binary between doctrine and skills.

Concluding Thoughts—Empowering the Reformists of the Future
The skills/doctrine dichotomy harms all stakeholders in legal education. Because legal education is at a crossroads, there are opportunities to consider reform. However, as the corporatization of higher education is applied to legal education, this could be a moment for retrenchment. As more and more undergraduate institutions dispense with tenure and cast large numbers of teachers into adjunct pools, an argument to collapse the skills/ doctrine divide by creating parity between skills faculty and doctrinal faculty may seem unrealistic.

Nonetheless, there are compelling reasons to remove the unworkable skills/doctrine category system. Placing skills on the same level as doctrine will also halt the reproduction of a legal culture that reinforces existing power relations. First, collapsing the dichotomy will achieve a greater amount of socioeconomic, gender, and racial diversity within the law professorate, which will directly improve the quality of instruction. Infusing doctrinal faculty with more SES diversity will expose students to a broader range of mindsets, decreasing the risk of reproducing existing social structures.

For skills teaching, advantaged law professors who have succeeded in elite settings might pass that knowledge on to less privileged students. Infusing the skills professorate with more male teachers will send a positive message as to the value of skills teaching and learning. The skills professorate needs additional professors of color to provide students with candid expertise on overcoming bias in legal practice settings, help students conduct analysis from a contextualized framework, and teach students how to recognize when established legal categories implicitly reinforce discrimination. A more racially diverse skills professorate will also improve faculty development across the board, enabling faculty members to become better attuned to recognizing and combating implicit bias in their own teaching.

Second, collapsing the skills/doctrine dichotomy will help arm a new generation of law students with all the tools necessary to remedy our ailing legal and justice system. After the police killings of Mike Brown, Eric Garner, Tamir Rice, and others, many would agree that aspects of the United States justice system need to be completely torn down and rebuilt. ... Thus, the kind of legal work we need to do requires all hands on deck and all tools in the toolbox. The reformist lawyers of the future must be armed with both big picture theories and small-scale strategies. For these projects, we need lawyers who can deploy critical legal theory, grasp the nooks and crannies of legal doctrine, and be surefooted when it comes to advocacy within the legal system. If we want to prepare the next generation of lawyers to rebuild the infrastructure of the United States system, we must view practice skills as more than just technical know-how, more than just working a business as usual law job. Practice-ready must also mean ready to do battle from both inside and outside the legal system.

Legal Education, Scholarship | Permalink


This article leaves me the impression that its author is way too far on the doctrine side of the doctrine/skill divide to understand the real world. I doubt the "police killings of Mike Brown, Eric Garner, Tamir Rice, and others" mean "that aspects of the United States justice system need to be completely torn down and rebuilt."

The causes of those incidents rests primarily in the high percentages of young black males growing up in fatherless homes. If anything needs to "completely torn down and rebuilt" it's a welfare system that has cause the number of fatherless black families to almost triple since the late 1960s.

Yes, "toxic hierarchies" do exist in law schools. But they are represented by professors who fail to address the real source of these ills.

Posted by: Michael W. Perry | Nov 3, 2015 5:16:24 PM

I have my quibbles with this skills/doctrine dichotomy, because the schools where graduates monopolize the *best* jobs in the profession overwhelmingly focus on theory above all else while at *innovative* and *skills-based* law schools, many students will never find meaningful legal work - nor are they skilled enough to hang a shingle upon graduation. Nevertheless, I must give a hearty thumbs up to anyone who uses "antipodal" in an abstract! Professor Jewel must be a formidable opponent at Scrabble.

Posted by: Unemployed Northeastern | Nov 3, 2015 12:25:58 PM

Is this social justice warrior mumbo jumbo a joke? I think we can all agree that law schools are doing a pretty good job currently of producing community organizer agents of change (like our President).

"Infusing doctrinal faculty with more SES diversity will expose students to a broader range of mindsets, decreasing the risk of reproducing existing social structures." For some reason I doubt she believes that exposing students to a conservative or libertarian mindset (or anything but extreme progressivity) would be a good thing.

Posted by: Todd | Nov 3, 2015 12:23:51 PM

After scanning this article, I think it's clear the need for a doctrinal/skills divide has never been more apparent.

Posted by: JM | Nov 3, 2015 11:01:34 AM