Paul L. Caron

Thursday, January 21, 2016

Lloyd:  Raising The Bar, Razing Langdell

WakeHarold Lloyd (Wake Forest), Raising the Bar, Razing Langdell, 51 Wake Forest L. Rev. ___ (2016):

As an introduction to the Wake Forest Law Review’s symposium edition on Revisiting Langdell: Legal Education Reform and the Lawyer’s Craft, this article highlights longstanding, substantial damage Christopher Columbus Langdell has inflicted on law schools and legal education. Much of this damage stems from three of Langdell’s wrong and counterintuitive notions: (1) law is a science of principles and doctrines known with certainty and primarily traced through case law; (2) studying redacted appellate cases is “much the shortest and best, if not the only way” of learning such law, and (3) despite Langdell’s own roughly fifteen years of practice experience, practice experience taints one’s ability to teach law. This article highlights problems with, and harms resulting from, each of these wrong notions.

Among other things, this article explores: (A) contradictions, oversights, and wrong assumptions in Langdell’s views; (B) how the very meanings of “theory” and “practice” reject Langdell; (C) how the necessary role of experience in meaning itself rejects Langdell; (D) parallels between Langdell and unworkable Cartesian dualism; and (E) how the necessary role of framing in the law rejects Langdell. This article also briefly surveys some remedies suggested by reason, experience, common sense, and modern cognitive psychology. These include rejecting the redacted appellate case method as a primary mode of instruction, recognizing the necessary fusion of theory and practice, recognizing the need for practice experience in law professors, recognizing the embodied nature of meaning and the resulting role of practice and simulation in good legal education, embracing the humanities (including classical rhetoric) in legal education, abandoning meaningless distinctions such as distinctions between “doctrinal” and “non-doctrinal” courses, and abandoning “caste” systems demeaning those with law practice experience and elevating those who lack such necessary experience.

Legal Education, Scholarship | Permalink



I disagree. The "Theory" that I learned in my T2 (Harvard Style) education has served me well for solo practice. I have "background" when I step up to the bench and ask a court to Quash an arrest. The education I received provides meaning and taught me "how to read." Some of the things can never be taught, it's OJT. I learned that fire was hot by getting burned.

Posted by: Captain Hruska Carswell, Continuance King | Jan 21, 2016 8:03:46 PM

The true absurdity is that the majority of law schools teach the same material in the same way despite the very different paths their graduates will take. For example, Harvard education works quite well for Harvard, but not for Third Tier law students. The schools outside of the top 50 or so should focus on things like real estate conveyances, criminal law, family law, debt collection, personal injury, etc. They have no need for Securities Regulation, Constitutional law, Intellectual Property, Tax, Mergers and Acquisitions, etc. Furthermore, the instruction should be very vocational and experience oriented rather than classic case method. It will make for miserable work for the professors, but at least it would confer real value.

Posted by: JM | Jan 21, 2016 1:20:48 PM

Langdell's model has been amazingly durable. Some of it is useful way to introduce students to a new way of discerning general lessons from specific disputes in a common law system that relies on precedent. There's too much reliance on it though, and it's a lousy way to learn other important aspects of the legal profession. There also is no universal legal truth.

Posted by: Jojo | Jan 21, 2016 1:11:04 PM

This is an excellent article. Thanks for mentioning it.

Posted by: Scott Fruehwald | Jan 21, 2016 11:51:54 AM

Really interesting. Thanks for posting.

Posted by: Tom N. | Jan 21, 2016 11:38:26 AM

The traditional "One L" Professor Kingsfield model has served our Republic very well until very recently. We have the most stable, predictable and even handed political and legal system in the World. How many F-150s will Ford sell in Syria today? The problem now is the grotesque oversaturation of attorneys into the legal market by numerous unranked diploma mill correspondence like law schools.

Posted by: Captain Hruska Carswell, Continuance King | Jan 21, 2016 11:28:33 AM

Aside from the scandals with fraudulent salary figures, I believe the gross over-reliance on the "case method" in U.S. law schools is the most ridiculous aspect of U.S. legal education and should be reformed ASAP. This method is obviously absurd and has remained in existence only because it requires the least amount of work for the professors who structure the courses.

Posted by: anon. 25 | Jan 21, 2016 11:16:34 AM

Is it unnecessarily harsh to point out that Langdell was positioning the study of law as a "science" in the same era that other Ivy League intellectuals were positioning Social Darwinism, phrenology, and eugenics as "sciences?"

Posted by: Unemployed Northeastern | Jan 21, 2016 10:21:00 AM