Saturday, November 10, 2018
Eli Wald (Denver), The Contextual Problem of Law Schools, 32 Notre Dame J.L. Ethics & Pub. Pol'y 281 (2018):
Law schools have a contextual problem. They teach law universally, ignoring context. Through a traditional curriculum that has changed relatively little in over a century, law schools advance a universal approach to professionalism and professional identity preparing law students to enter a homogenous legal profession in which lawyers practice law performing similar tasks in similar practice settings representing similar clients. Except that unlike legal education, the practice of law has grown immensely complex and diverse over time. Far from universal, law practice and lawyers have become richly contextual. Context now matters in the practice of law: client identity, lawyer identity, tasks, subject matters and status inform and shape what lawyers do and their exercise of professional judgment. Law schools’ disregard of context thus constitutes a significant problem as it misleads students and fails to adequately prepare them for the practice of law.
The mismatch between law practice and legal education requires a contextual approach. This Article argues that law schools can and should systematically introduce contextual insights into their curriculum and culture, including their approaches to professional ideology and socializing law students into the practice of law, addressing questions of justice as an integral part of legal education, exposing students to the complex problems of insufficient access to legal services and some of their possible solutions, and offering rich accounts of competing conceptions of lawyers’ professional identities and their interaction with equally rich visions of personal identities.
A contextual approach to legal education is neither a dream nor an academic aspiration. Rather, it is well-grounded in the past, present and future of legal education. As the Article shows, Realist reforms to traditional legal education included experimentation with contextual insights. At present, law schools feature a rich and diverse commitment to context outside of their main curricular core, in clinics, skills classes, trial advocacy courses, simulations, required professional development classes, externships and experiential offerings. A contextual approach calls for learning from this rich periphery and bringing its contextual insights into the doctrinal and cultural core of legal education.
Law schools’ contextual problem, the growing mismatch between the practice of law and legal education, must be addressed. A contextual approach to legal education holds the key to closing the gap and allowing law schools to better serve their students, the legal profession and the public while also addressing the much talked about practice ready crisis and the (neglected) challenges of insufficient attention to justice and to access to legal services.