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TRANSFORM—DON’T JUST TINKER

WITH—LEGAL EDUCATION

(PART II)

ERALD

P. L

OPEZ

Part II of this two-part article presents the Alternative Vision of

legal education discernible in the best of clinical legal education—not

as a supplement to the at-best-status-quo-plus model that still domi-

nates legal education, but as a complete substitute ready now for a

full roll-out. This Vision defines, in ambitious intellectual and peda-

gogical terms, what lawyers do, describes the capacities superb practi-

tioners demonstrate, and delineates the aims and means to train law

students to be as practice-ready as three years of first-rate education

allows and to grow better and better at what they do through deliber-

ate choices made over a career. Because the Alternative Vision traces

its origins, its implementation, its improvements to the best of clinical

programs in the United States, many will likely regard it as presump-

tively unworthy, even ridiculous: a mongrel rather than a Blue Blood,

perhaps practically-minded but at best only spuriously intellectual.

Meeting this scorn head-on, Part II sketches the radically different

assumptions, methods, and aspirations at the heart of the Alternative

Vision, explains why we should ban the Socratic case method and

scrupulously scrutinize all familiar learning formats, and measures

all of us involved in legal education by how well suited we are (or

could become) to the teaching and learning a transformed legal edu-

cation demands.

ABLE OF

ONTENTS

NTRODUCTION

................................................. 250

ORMATIVE

, C

ONSOLIDATING

, E

NHANCING

IMES

...... 258

* Professor of Law, UCLA School of Law. Deepest thanks to the organizers of and

participants at the Clinical Law Review Symposium, Rebellious Lawyering at 25, on May 1,

2016, in Baltimore, Maryland, to the UCLA law librarians (and the late June Kim), and to

Damon Agnos, Iman Anabtawi, Janese Bechtol, Jessica Blatchey, Jessi Bulaon, Daniel

Bussel, Stephen Carpenter, Jessica Cobb, Marissa Dagdagan, Steve Derian, Sally Dickson,

Daria Fisher Page, Tara Ford, Martha G ´omez, Patrick Goodman, Yuri Han, Randy Hertz,

Jenny Horne, Katie Hurley, Heejin Hwang, Kristen Jackson, Rusty Klibaner, Michael

Kramer, Dania L ´opez Beltran, Lynn LoPucki, Shauna Marshall, Andrea Matsuoka,

Brenda Montes, Gary Peck, Kimberly Phan, Brad Pollock, Luc´ıa S ´anchez, Meg Satter-

thwaite, Dian Sohn, Robert Ian Stringham, Kim Taylor-Thompson, Sherod Thaxton,

Delvin Turner, Alex Wang, Jana Whalley. Eva Wood, Maggie Yates, and those whom

Clinical Law Review practice prohibits me from naming. Special thanks to Kathleen Foley

for close collaboration on this entire project.

247

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248 CLINICAL LAW REVIEW [Vol. 24:247

II.

LTERNATIVE

ISION

................................... 266

A. Animating Insights Driving the Alternative Vision . 267

B. Lawyers as Problem Solvers Among Other Problem

Solvers .............................................. 270

C. Lawyering as Stylized Variation on Human Problem

Solving .............................................. 271

D. Legal Analysis as Stylized Variation on Everyday

Analysis ............................................ 275

E. Rebellious vs. Regnant Vision of Problem Solving. . 277

F. Lawyers as Experts—Experts Differently

Conceived .......................................... 283

G. Mapping Reality .................................... 284

H. Cross-Cutting Capacities at the Heart of the

Problem Solving All Lawyers Pursue ............... 292

1. Every Superb Lawyer Demonstrates the

Capacity to Observe Closely, Listen Attentively,

and Size Up a Situation Well ................... 292

2. Every Superb Lawyer Demonstrates the

Capacity to Read Discerningly, to Write

Convincingly, to Speak Effectively .............. 297

3. Every Superb Lawyer Demonstrates the

Capacity ........................................ 304

a. To frame and understand problems from

varying perspectives ........................ 304

b. To work well (collaborate) with diverse

others ....................................... 308

c. To learn about “local communities,”

“geographically dispersed communities,” and

the intimate relationship to “global forces” . 314

d. To imagine and implement varied strategies

and ensembles of strategies (across legal,

political, economic, social, and cultural

realms) ..................................... 316

e. To monitor and evaluate the effectiveness of

strategies as pursued and problems as

framed ...................................... 318

f. To design and manage the institutions

through which we work and live ............ 322

g. To learn how to learn (from experience and

every which way) throughout the course of

a problem-solving career.................... 325

III.

EFINING

FRESH

MBITIOUS

EACHING AND

EARNING

.............................................. 331

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Spring 2018] Transform Legal Education 249

A. Opening Up to Scorned and Ignored Possibilities. . . 331

B. Problem Solving—Method and Aim ................ 332

C. Teaching as Coaching ............................... 332

D. Learning to Be “Coaches On The Floor” ........... 334

E. Teaching and Learning Like This—Doable,

Intensive and Not for Everyone .................... 335

1. Preparation—For Teachers and Students ....... 335

2. Teaching People, Not Teaching Things .......... 337

F. Neutralizing the Virus of the Curve ................ 339

G. Coordinated and Sequenced Training ............... 341

H. As Practice-Ready as Imaginable ................... 343

I. Preparing Students to Pass the Bar ................. 344

IV.

ANNING THE

OCRATIC

ASE

ETHOD

............... 345

A. Realistic Portrayal .................................. 349

B. Disaggregating Valuable Aspects and Training

Through Targeted Coaching ........................ 355

1. Learning Law ................................... 356

2. Learning How to Read, Interpret, and Use

Cases ........................................... 365

a. Edited Judicial Opinions Promoting Ends

Other than Learning to Read Cases ........ 366

b. Obscuring Rather than Systematically

Revealing Patterns in Judicial Opinions .... 367

c. Substituting a Sterilized Brand of Weak

Formalism for the Radically Honest

Appraisal of What Goes into, Can Be

Discerned in, and Can Be Produced

Through the Use of Cases .................. 371

3. Learning How to Recognize, Understand, and

Produce Quality Legal Analysis ................ 376

C. The Socratic Case Method as Work Slowdown ..... 382

D. To Find Further Resistance, Follow the Money ..... 386

E. Scrutinizing Everything Else (Seminars, Colloquia,

Practicums, Externships, and Clinics) ............... 387

IECING

OGETHER

REAT

EACHING AND

EARNING

EAMS

.................................................. 389

A. A Brief Case Study of Dysfunction ................. 389

B. Utilitarian/Evaluation and Compensation of

Teachers ............................................ 392

C. Drafting and Training for Success................... 393

VI.

WARE

—A

EWARE

............................ 400

VII.

YSFUNCTION

UNS

EEP

........................ 404

A. A Swan Song ....................................... 404

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250 CLINICAL LAW REVIEW [Vol. 24:247

B. One Educator’s Reaction to Brian Mikulak’s

Letter ............................................... 421

VIII.

KETCHES OF

HAT

OULD

........................ 422

PILOGUE

...................................................... 465

NTRODUCTION

Over roughly the past fifty years clinical programs have devel-

oped, refined, and consolidated an Alternative Vision of legal educa-

tion ready immediately to be implemented across the law school

curriculum. Indeed this vision is ready entirely to replace the tradi-

tional law school curriculum. This vision defines what lawyers do, de-

scribes the capacities superb practitioners demonstrate, and delineates

the aims and means to train law students to enter the profession. That

training would equip future lawyers to become as practice-ready as

three years of first-rate education allows and to grow better and better

at what they do through deliberate choices made over the course of a

career.

What the best clinical programs offer counteracts the harm in-

flicted by the basic approach to legal education first introduced in

1870 and still dominant today. That was already true in important

ways in 1970, absolutely true in 1990, and still true today. As epidemi-

ologists would say, the best of clinical programs offer downstream

treatment of troubles created upstream. But for most law students,

that treatment is often too little, too late. Indeed, the more earnest the

student—the more inclined to engage the first-year regimen and the

second and third years precisely as conventional wisdom exhorts—the

more difficult it often turns out to be to undo the damage the rest of

law school inflicts.

To frame and understand clinical education’s role merely as “sup-

plementing” or “grounding” or “advancing” students’ growth is en-

tirely to miss the point. This view—the dominant view—severely

limits the role of even the best of clinical education. It maintains the

sovereignty of the underachieving, self-aggrandizing “core” of legal

education that creates the upstream ills clinicians find themselves

“counter-acting,” the mentality from which clinicians seek to “de-pro-

gram” students. What we must see (as some non-clinicians and clini-

cians and even far more students in the past have) is that the dynamic

Alternative Vision implicit in the best of clinical programs provides a

coherent way to address at its origins and in all its entailments the

unacceptable condition of legal education in 2018.

The Vision embodied in these clinical programs can and should

define the fundamental orientation, design, and staffing of every law

school across the country. Not just of the clinical program at each

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Spring 2018] Transform Legal Education 251

school, of the entire school. Our aim should be to supplant, not to

supplement, the traditional core of law school education that has per-

sisted for close to a century and a half. We must scrutinize all formats,

methods, and content (clinics, practicums, seminars, colloquia, extern-

ships). We must ban—yes, utterly ban—the Socratic case method. We

must fire or counsel out those unsuited to making this transition a

reality and to endlessly improving the transformed law school.

Our students, their future clients, and our national and transna-

tional communities deserve a legal education that starts from day one

and continues through and beyond law school graduation to optimally

train lawyers and provide them an accurate understanding of what

lawyers do, what law is, and how they fit with the rest of our political

economy. Nothing—not “tradition” or convention, not indolence or

ignorance, not self-aggrandizement or obstinacy—must be allowed to

stand in our way.

As I sketch this Alternative Vision, I shall use my own categories

and terms. That does not mean I regard what I write as “original,” or

“the first,” or “a brand new theory” or any of the other transparently

inflated and even counterfeit claims now so routinely employed in law

review articles, conference and workshop presentations, law school

websites, and law school magazines. Indeed quite the opposite is true.

As in writing Rebellious Lawyering: One Chicano’s Vision of Progres-

sive Law Practice (itself an effort to document and cohere what I trea-

sured in my observations of others’ practices), a central ambition in

sketching this Alternative Vision is to emphasize its collective

authorship.

I employ terms and categories that others do not necessarily use

in describing what lawyers do, in describing how best to teach the

problem solving at the heart of all lawyering and as it varies across

roles and institutions. Yet people and institutions of all sorts created

this dynamic vision of how we can ambitiously and effectively train

great lawyers. Indeed the assortment—going back not just to 1970 but

considerably further still, and extending far beyond law school clini-

cians and non-clinicians, far beyond university boundaries—is nothing

short of astonishing.

I fully appreciate that others I know and respect may divine an

Alternative Vision divergent from the one I shall describe. In consid-

ering what they regard as the best of clinical education, they may find

themselves drawn to features quite different from and perhaps even at

odds with those I long ago found myself feeling matter most. And they

may offer a distillation that varies, perhaps considerably, from that

which I have perceived, internalized, and pronounced as the Alterna-

tive Vision. Even within kinship networks, even among allies, such de-

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252 CLINICAL LAW REVIEW [Vol. 24:247

bates always have been and shall continue to be a recurring aspect of

everyday life.

Even those who perceive something like the same Alternative Vi-

sion in the best of clinical programs likely classify and label matters

differently. Though I respect their ways of describing lawyering and

educating lawyers, I use my categories and terms because I know

them so well. I’ve used them for decades in describing both the work

of lawyers and how best to train law students, new practitioners, sea-

soned veterans. Together the categories and terms provide the lan-

guage I share with all those I train, and who in turn teach me to get

better at what I do, including improving our shared vocabulary. I’m

most comfortable knowing how these categories and terms work and

fit together in describing the Alternative Vision I wish to depict.

If others I respect would perhaps use different classifications and

labels than those I employ, they would even more likely use the Alter-

native Vision to design law schools very different from what I might

build and from what still others might construct. That’s to be ex-

pected. Much as I can describe an Alternative Vision of legal educa-

tion, I myself can easily imagine translating that Vision into many,

many concrete variations. Others I know (and others I’ve studied at a

distance) would feel much the same way and would start from their

own “best of” list. I’m talking about students as well as teachers, prac-

titioners as well as consultants, clients as well as lawyers. They can

generate many worthy options, and the mix of laudable aims, contents

and methods would vary across their own constellation of options.

These diversely and even divergently designed law schools, cre-

ated by those who know the Alternative Vision and daily strive to

bring it to life, would be electrifying. The diversity of implementations

would allow us to examine how well each law school performs when

measured by its particular design, its sequential training opportunities,

its qualitative and quantitative results. We could examine, with equal

curiosity, ways in which one or another design may yield advantages

other transformed law schools may have inadvertently missed or con-

sciously underestimated in importance. An intriguing array of law

schools aiming to realize the Alternative Vision would provide feed-

back loops for everyone to assess and respond to as part of a continu-

ing conversation where everyone aims to get better and to help

everyone else get better.

No, that’s not a fanciful forecast of the future of legal education.

Or at least it shouldn’t be. When elite sports coaches can and do open

up their training to other coaches against whom they compete (for

big-time dollars, prestige, jobs, victories), when elite investors share

their strategies (even occasionally their algorithms) with other elite

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Spring 2018] Transform Legal Education 253

and nearly-elite investors, when political consultants from across the

aisle (aisles) share their data-driven campaign plans, really, law

schools can’t openly aim to help one another get better at training

lawyers? If that’s true, the number of people we should “counsel out”

of their current faculty and dean and staff and student positions is far

larger than anyone may have initially imagined.

In this sketch of the Alternative Vision, I seek parsimony. I don’t

mean extreme frugality in the implementation; training lawyers can’t

be done well on the cheap. And I don’t mean brevity, either, as even

this parsimonious account requires over two hundred pages to deliver.

I mean economy of expression in the description: explanations as con-

cise as possible, focused on what most centrally describes and distin-

guishes the Alternative Vision. Accurate as I believe this definition of

parsimony to be, disagreements shall ensue.

What I regard as economy of expression may for some qualify as

far too elaborate and for others still as not nearly elaborate enough.

For those who would prefer to smother, sidestep, or deny the strata,

complications, and tensions in social reality, my sketch shall seem ex-

cessively ornate. For those who want a sumptuously detailed depiction

of everything covered by this Vision, my sketch shall appear far too

austere. Those who yearn for a depiction of the Alternative Vision

that serves as either a further distillation (in the strong scientific sense

of a theory) or a further amplification (in the strong narrative sense of

a story opulently told) will find themselves unsatisfied.

I understand wanting less and wanting more. Indeed, I have cho-

sen less and chosen more in other representations of lawyering, in

other descriptions of legal education, and in descriptions of the rela-

tionship of one to the other. And in the future, I may choose austere

or ornate again. Yet parsimony takes its very definition from the phe-

nomena we aim to describe and from the purposes of the description.

At least for Part II of this two-part article, I regard this particular

economy of expression as superior to less and to more.

That’s not at all because “the truth always lies somewhere in the

middle.” That familiar maxim is wacky, groundless, and a downright

dangerous lie. Instead, as in all human endeavors, we inevitably

choose and nearly as inevitably debate what serves as convincingly

parsimonious in the face of particular contexts and purposes. That’s

true of selling a story to a jury, of negotiating pivotal points in a com-

mercial deal, of trying to reach a peace accord. And it’s every bit as

true in deciding how best to render an Alternative Vision of ambitious

and effective legal education.

I do have my regrets, of course. Of the many notable misgivings

about my choice of parsimony, I know my sketch too often shall leave

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254 CLINICAL LAW REVIEW [Vol. 24:247

blurry the array of people and experiences contributing over time to

the Alternative Vision. I feel disappointed all the more because I

keenly appreciate just how much we need fabulously textured and

vivid histories of clinical legal education. We have some histories, I

realize. I have used them in trainings I offer and in various pieces I

write, and I admire them greatly—all the more reason I am dumb-

founded by how commonly clinicians and non-clinicians fail to read

these histories cover-to-cover.

Yet no one who knows well the mountains of literature about le-

gal education could credibly insist we know anything like what we all

should about clinical education. We need histories that aim to sweep

across swaths of schools in the United States, across the nation, across

countries, all to illuminate common and divergent themes, notable in-

fluences and obstacles, conventional and unconventional accomplish-

ments. And we need to read and share them. We need to know well

the deep stock stories and challenges to them that, in any era, help

explain ways clinical education proved restricted by and yet now and

then broke free from underlying ideological, material, and cultural

norms.

Every bit as much, and perhaps more, we need decidedly local-

ized histories. We should aim to produce and we should all long to

read beautifully rendered, graphic close-ups, about the evolution of

clinical programs, about the Alternative Vision immanent in at least

some of the work, at law schools across the nation. About some law

school clinical programs, we can find only very little published; about

others, we can consume certain quality portrayals, but nothing to

match all that has happened in and around clinical education at these

schools. I know because I routinely search, often with the help of

spectacular librarians.

We need these histories to take us all the way up to the current

moment. Though my account of the modern formation of the Alterna-

tive Vision shall focus mainly on the 1970s and 80s, do not misread

into this any notion that I believe the best of the “early” or “middle

era” clinicians introduced all the key innovations or are somehow bet-

ter than the best of today’s clinicians or, for that matter, earlier gener-

ations. That would be inaccurate—wrong, wrong in every way.

Each generation and moment has its brilliantly gifted, innovative

clinicians—and non-clinicians, and law students, and staffers, and cli-

ents, and collaborators. All of these actors in each generation and co-

hort cultivate, expand, and enrich the Alternative Vision. History does

not end—or whatever other pithy absurdity may now be making the

rounds. The collectively created Alternative Vision inevitably evolves.

The everyday job of each cohort entails making changes, tiny to large,

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Spring 2018] Transform Legal Education 255

for the better and not the worse. The contribution of the histories not

yet published, not yet written, not yet lived—the histories I so yearn

to read—would be to educate us about so much we still do not know

and need to understand.

Imagine what we could learn, from up close, through the eyes of

the people mainly unknown to all but other locals. What would stu-

dents, staffers, teachers illuminate for us? What would clients have to

say? What would others called upon to collaborate, or those ignored

when they are exceedingly able and willing to pitch in, report? What

would communities tell us—communities understood to be anything

but of a single mind? All this is true of elite schools as well as regional

schools as well as schools idiotically ignored because of our strongly

internalized sense of hierarchy. Often the best stuff, including the gen-

uinely inventive work, goes on in places and through people omitted

from any version of an “insider’s list.”

We should and could learn massively captivating stories about,

say, Alabama, American, Arizona, Buffalo, BYU, Cleveland-Mar-

shall, CUNY, DePaul, Fordham, Golden Gate, Iowa, New College of

Law, New Hampshire, NYU, Northeastern, Northwestern, Santa

Clara, Seattle, Southwestern, St. John’s, St. Mary’s, Tennessee, Tulane,

UC Hastings, UC Irvine, University of Hawaii Williams S. Richard-

son, University of St. Thomas, Valparaiso, Vanderbilt, Willamette.

About informal working alliances, schisms, breakthroughs never pub-

licized and often never appreciated even within the school itself.

About individual and group achievements lost because of departures,

both to other schools and to the hereafter. Even the fragments of local

histories I already do know typically help me to realize how a sweep-

ing panoramic account can miss so much that has mattered there,

here, at some particular school and place.

Just one of the many contributions these histories would make

would be to teach about the many people who produced, refined, and

improved this Alternative Vision—who embraced the obligation to

examine closely huge amounts about lawyering and legal education, to

discover the patterns in complexities, to cut deeper and sharper in

their analyses, proposals, and programs. Behind the shimmering finish

of my compressed Alternative Vision lies this menagerie of folks, very

different from one another, variously conscious of what they were

helping to build, with the familiar messiness of work and life defining

their everyday existence. The downside of the parsimony I have cho-

sen is that it makes room to include only some of these actors and

their stories.

Somewhere, at some point, I badly want to share in print a far

more detailed narrative of those I have known well for decades, about

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256 CLINICAL LAW REVIEW [Vol. 24:247

those I worked with intensely for a time, about those fellow travelers I

learned from at a distance and from the past, and

I could begin with notables from earlier eras (even if nowadays

they are nearly unknown) who raised formidable objections and

defined exceedingly worthy options to supplant the still dominant

vision of legal education, people who worked hard to introduce

one or more courses as examples of great training about matters

law schools utterly ignored or mangled, people who, in close col-

laboration with others, persistently championed options that the

great majority in legal education and the legal profession ignored,

dismissed, derided, deep-sixed.

I could write at length, in reverse order, about various genera-

tions of students and teachers and staffers (and many who

worked with them, not least clients). To use vocabulary I almost

never employ, I want very much to share in print the remarkable

virtues of and complex challenges facing Millennials, Xennials,

Gen Yers, Gen Xers, Baby Boomers, members of the Silent Gen-

eration, the Greatest Generation, the Lost Generation and more.

Like generations before them, my current students have dazzled

me with their intellectual, ideological, and emotional hunger for

great training, contributing every bit as much as they derived

from demanding live and simulated practice and from interdisci-

plinary readings, helping to improve the lives of clients and client

communities, enhancing the work we do together, including the

training methods and aims I have spent decades with others de-

veloping, leaving all of us feeling honored for having had the op-

portunity to work with them.

Like most clinicians must feel, I want to offer you a history that

features what you cannot otherwise learn from a distance, pulling

you inside the work and lives of those students I’ve worked with

just in the immediate past: Anabel Agloro, Kainoa Aliviado,

Daysi Alonzo, Melanie Ayerh, Elizabeth Arias, Rekha Aru-

lanantham, Zina Badri, Byron Barahona, Carla Bernal, Alicia

Brush, Kathleen Bush-Joseph, Amanda Carlin, Ariana Cernius,

Giselle Chang, Kat Choi, Jessica Cobb, Springsong Cooper, Lind-

say Cutler, Chad Escalier, Sean Flores, Kathleen Foley, Evan

Franzel, Erin French, Natasha Gandi, Rica Garcia, Marina Gatto,

Erika Georgiou, Danielle Gies, Simren Gill, Ruhandy Glezakos,

Miguel Guerra, Jorge Guerrero, Firass Halawi, Yuri Han, Jessica

Hanson, Adam Herrera, Morgan Hecht, Julia High, Christian

Holweg,

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Spring 2018] Transform Legal Education 257

Gina Hong, Christopher Homandberg, Heejin Hwang, Ashley

Javanfard, Michael Kramer, Yun Hee Kim, Andr ´es Dae Keun

Kwon, Rocio La Rosa, Lara Leitner, Christopher Lin, Dean

Longfield, Jairo L ´opez, Nathalie L ´opez, Rachel Lorber, Han Lu,

Jesse Martin, Nabeelah Mia, Eric Mont, Maitria Moua, Elaisha

Nadrajog, Julio Navarro, Ka Ying Karen Ng, Tatiana Pavlova-

Coleman, Nancy Perez, Kimberly Phan, Galen Phillips, Brittania

Poon, Veryl Pow, Paulette Rodriguez L ´opez, Christopher Riddle,

Alexandria Ruiz, Rocio Sanchez, Dian Sohn, Guy Rogers, Rob-

ert Ian Stringham, Leana Taing, Amy Thompson, Juliette Tran,

Cara Trombadore, Delvin Turner, Jeffrey Vides, Estephanie, Vil-

lalpando, Ethan Weaver, Maggie Yates, Pui-Yee Yu, Sandy Yu,

Jana Whalley, Larken Yakulic, Nobukhosi Zulu.

There’s no escaping these regrets, however. Nor do I wish to. We

should experience the possibilities and the limits entailed in every

form of parsimony. Living with these regrets, I am proud to depict

what together over the past half century (and going back further still)

we have collectively developed. In delineating what lawyers do, the

capacities splendid practitioners demonstrate, and the methods and

goals at the heart of great training, the Alternative Vision provides the

standards to design and the metrics by which to measure all we do in

legal education. Both paradigm and yardstick, we can evaluate all we

already do—the casebook Socratic method, every seminar, collo-

quium, experiential learning opportunity (externships, practicums,

clinics, independent research projects)—and all we propose to do in

law schools fundamentally reoriented.

That’s not all. Through the Alternative Vision, we can evaluate

every faculty member, every student, every employee of the law

school, every member of an advisory group and board of trustees.

And we can evaluate in advance every potential member of the train-

ing team. We can pinpoint ways in which work is terrific or average or

failing, and we can guide one another in how we might best sustain

terrific work, improve average work, and resurrect failing work. We

can do this by comparing what any law school offers with its own mis-

sion and detailed plans and by comparing law schools with one an-

other, exploring whether what we see elsewhere offers variations

worthy of adaptation.

Skeptics should understand that, for at least fifty years, the best

of clinical programs have designed and measured themselves in just

this way. I’m including absolutely everyone involved with making clin-

ics run, in particular each succeeding generation, at their best enhanc-

ing what they have inherited. And, most often, everyone else with

whom they worked: clients from all sectors, communities of all sorts,

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258 CLINICAL LAW REVIEW [Vol. 24:247

and experts with and without degrees and titles. They have demon-

strated that, in the hands of able and willing teams, the Alternative

Vision works, at its best fabulously. What has been informally going

on in parallel with and by contrast to conventional law school training

has for decades been ready to transform all of legal education.

What are we waiting for?

I. F

ORMATIVE

, C

ONSOLIDATING

, E

NHANCING

IMES

The first waves of modern clinical students and teachers and staff-

ers felt entangled with the political, social, and cultural upheaval of

the 1960s, 1970s, and 1980s. Most of us played active roles in one

movement or another and typically many movements at once; some

routinely helped initiate and sustain major campaigns. Others staffed

marches and sit-ins; others still created and made carbon and Xeroxed

copies of posters, flyers, and letters to be signed.

It’s an exaggeration to say we broke down the law school barri-

cades, though some have tended to describe our arrival in those terms.

It’s absolutely true, however, that many of us spoke our minds and

voted with our feet. As much as traditional legal education aimed,

certainly in 1970, to keep the real world outside the classroom and

outside of law, we did our best to violate that commandment. Not all

were happy with our sinful ways. But many of us didn’t much care

what traditionalists insisted law school must be like.

I’m often more demanding of our crowd than of anyone else. In

one sense, that’s perhaps odd and inappropriate. At 21, I entered law

school in Fall 1970. I was raw as could be, lacking theoretical sophisti-

cation, knowledge of the profession, and any sense of what law school

was about. I am forever indebted to many who, almost entirely by

virtue of their example, guided me as I created my own feral training

regimen to substitute for what law school prescribed.

Much as I am profoundly appreciative, I believe we all should be

held to our own standards. Significant numbers of us, myself included,

aspired to incite or at least advance a revolution. Those weren’t just

words, just the rhetoric of the times. We felt that way, put ourselves

out there to “make shit happen,” and did so over and over again.

Many I have known did remarkable work, lived extraordinary lives,

over these past decades. From my vantage point, we cannot honor

them enough. And, yet, the larger revolution has yet to come to pass.

If anything, we share the responsibility for not having fought off effec-

tively enough the White Supremacists and their many disparate en-

ablers who now formally reign over the U.S.

Still, we students, staffers, and clinicians expressed through our

work—and through what we said and now and then through what we

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wrote—profound dissatisfaction with the status quo approach to legal

education, with the remarkable lack of intellectual curiosity about

how lawyers lawyer and how best to train students to learn to lawyer

well, with the near absence of serious written work or even deep and

sustained conversation about teaching and learning and lawyering.

Many of us entirely expected to transform law practice and legal edu-

cation as part of revolutionizing the world. Utopian? Hubristic?

Straight-Up Crazy? That’s just the way it was.

But we can be even more specific about the students and faculty

and staff whose involvement in the first waves of clinics did so much

to contribute to what we see and take advantage of today. Even by

groups, so much can be said about students, and what can be said hints

at strong parallels were I to describe staffers and clinical teachers and

many others still:

The embarrassingly small percentage of women admitted to and

attending law schools in the late 1960s and early 1970s included large

numbers of strong and outspoken feminists, some militantly radical.

They made their presence felt in ways far exceeding what fairly might

have been expected from a group so small, in some instances at a cost

no one should have to pay. At their best, I could hear and sense at

work Frances Ellen Watkins Harper, Charlotte Perkins Gilman, and

Grace Lee Boggs.

The infinitesimally small (and then just small) number of Natives

and Latinos and Asian Americans in law school during those same

years were, almost to a person, active participants in various indige-

nous and Latina and Latino and Asian American movements (land-

grant, Red Power, Puerto Rican Independence, Voting Rights, Brown

Berets, Farmworkers, The Return of Aztl ´an, Filipino Farm Worker

Justice, Internment, Reparations). Even the wariest, at pivotal junc-

tures, stood shoulder-to-shoulder in the face of nastily racist powers-

that-be.

The Black students all carried themselves in ways that did justice

to Black Pride, all actively backed the modern Civil Rights Move-

ment, and all appeared to grasp at some level the call for Black Na-

tionalism, even if only some regarded themselves (as did only some

women, Latinas and Latinos, Asians, Indians) as out-and-out separat-

ists. Regrettably, in 1970, you could find more Ella Baker and Stokely

Carmichael (later Kwame Ture) in nighttime adult school classes than

in law schools. But some Black students, along with others, made such

names and ideas part of everyday conversation.

Importantly, low-income Whites, never a large number in any law

school during those same years, often expressed their more explicit

political outrage by delivering their sweat labor in support of the War

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260 CLINICAL LAW REVIEW [Vol. 24:247

on Poverty, Students for a Democratic Society, community and labor

organizing, and the Peace Movement. Others balked at such open

commitments, not to mention at socialist and Marxist politics, just as

certainly did some women and people of color. Within these ranks,

deep disagreements proved as understandable as ever-present.

Meanwhile, middle-class and wealthy Whites sorted their way

through the fractious relationships by searching for and usually find-

ing some ground to stand on. Some staked out territory brand new to

them and absolutely alienating to their families; others held fast to the

traditions, the party affiliations, and the ideologies handed down

within their kinship networks. Still others grounded themselves in a

network of people far more expansive than they had known before,

inviting and embracing all that comes with loving others—and being

loved by those others—even when backgrounds and perspectives di-

verge, often dramatically. Friendships and extended families can

sometimes transform a lifetime.

However much clinic staff, students, and faculty of these years

may have chosen different paths and varied views, we shared at least

one thing in common with other law students and with people across

the United States. Everyone at least appeared to feel an intense pres-

sure to make choices and to make their choices known. The dynamics

of these times forced most to make explicit what they otherwise may

have left tacit, what they otherwise may even have hidden, not just

from others but from themselves. Even a limited roll call offers a

glimpse of the questions posed.

Where do I stand and where do you stand when it comes to

women’s equality? racial-in-your-faceness? capitalism? the free mar-

ket? colonial histories outside and within the United States? homosex-

uality? heterosexual sex as inevitably rape? free love? black- and

brown-lung disease? unions? school busing? corporations? corporate

law firms? the deserving and undeserving poor? pathology as a label

to identify how Latino and Black families differ from all other fami-

lies? marijuana, LSD, cocaine? ethnic studies programs? Earth Day?

monogamy? nuclear families? inter-racial and inter-faith relationships

and marriages? Stonewall? Attica? Mao’s China? Castro’s Cuba?

cults as religions and religions as cults? the priesthood? Madalyn Mur-

ray O’Hair? God? No, not where do I stand and do you stand “in

principle,” but when push comes to shove, when you have to throw

down or not?

Choices made and stands taken varied and changed over times.

And neither political party affiliation nor deeper ideology necessarily

led to a certain line-up of views. What could be discerned with more

confidence was the very bluntness of the force people felt to declare

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the ground they stood on. Some may have found those demands har-

rowing, others liberating, still others confusing as can be. Many may

have experienced the need to make choices and to make them explicit

as, at once, tormenting, thrilling, perplexing, and much, much more.

When the deep background rules get surfaced, defied, and disputed,

much that we typically evade or deny about who I am and who you

are gets put into play.

Critical appraisals became perhaps the norm during these years,

more than immediately before and more than immediately following.

That’s not to claim, as do so many, that the 1950s were mindless years,

without deep thinkers, all-in activists, distinctive genius. Nor is it to

claim, as have plenty before November 8, 2016, that the 1990s or Gen

Xers, Gen Yers, Xennials, and Millennials have lacked political fever.

That’s untrue of everything I know about the 1950s and the genera-

tions following the Baby Boomers. We should stop our pigeonholing

of those times and those generations, particularly as a way of exalting

the various movements and even the insurgent fervor of the many

years I regard as The Sixties.

Yet critiques, deep and extensive and in-your-face, did appear to

be a central part of the years when modern clinical education first

took hold. Some critiques took the form of intellectual tomes written

deliberately in obtuse syntax, jargon-laden prose that bigheadedly de-

clared, “This is too difficult even for elites to comprehend.” Others

took the form of lucidly and even beautifully written modern manifes-

tos and letters, accessible precisely to declare that everyday people

both indirectly authored these documents and should read what only

they could convert from radical aspirations to everyday realities. Still

other critical appraisals took the form of punchy lyrics, elegant jazz

riffs, and image-says-it-all posters and t-shirts. Others still amounted

to refusals to obey illegal commands, unjust jury instructions, and

dogma that made no sense.

These critical appraisals demonstrated, at least the very good

ones did, the clout expressed (for better or worse) in giving names to

and defining the workings of what you might “feel” or “sense” and

still cannot otherwise readily describe and understand. People writing,

reading, singing, listening, and otherwise participating could begin to

grasp how seemingly unavoidable hardships—more accurately, ine-

qualities—resulted from choices that inevitably redistributed power in

some ways and not others. T-shirts, posters, jazz riffs, lyrics, letters,

manifestos, quietly determined disobedience, and even the occasional

arrogant tome engaged at once people’s emotions and thoughts. In

this crucial sense, critique itself could be liberating.

Yet critical appraisals were not the end game for the students,

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262 CLINICAL LAW REVIEW [Vol. 24:247

staffers, and teachers who inaugurated and built the early versions of

clinical education. Emphatically, we overwhelmingly were not among

those who initially offered formidable challenges to the status quo, but

ended up very quickly overlooking or downplaying or giving up on

what they imagined vaguely as a radically different way of working

and living. And, by and large, we were not among those who thought

maturity should “naturally” downsize our aspirations or tame our ide-

ologies, our actions, our passions. Settling—out of the purported wis-

dom of age, rather than what coerced necessity requires—was not

among the founding clinical convictions of the 1960s, 70s, and 80s.

Instead, the first waves of students and teachers and staffers in

law schools proved to be like the many from these decades who, in

quietly uncelebrated ways, aspire no less fervently in their 80s, 70s,

and 60s than they did in their 20s and 30s to transform the world. We

chose clinical training as one place—for some, the place—to begin

constructing something like the counter-visions implicit in our biting

critiques of lawyering, of legal education, and of all that surrounded

and helped define practice and teaching.

Through clinics, we sensed we could learn and teach at least some

of what legal education almost had entirely neglected or, worse still,

had continued to teach only partially and dreadfully. And we could do

so, at least often, by responding to and engaging the very communities

most horrifically treated by life, including by too much of law and too

many lawyers. Some got to work, literally, in the neighborhoods

where they grew up. Others found themselves in communities ostensi-

bly unlike their own and yet revealing from up close details reminis-

cent of their own low-income, of color, and immigrant pasts. And

most dealt with people—up close and personally—living lives almost

entirely divergent from their more privileged upbringing.

To construct these training options, clinical teachers and staff and

students of these times routinely reached out for guidance. We scav-

enged around with ingenuity and perseverance. What we introduced

and improved and refined reflects influences immense indeed—in

scope and depth. It cannot be repeated too often, and I certainly re-

peat it every opportunity I have: we have borrowed from far outside

universities, from other schools and departments within universities

and colleges, from “continuing education” for diverse crafts and arts

and professions and trades, from pre-school and K-12 education, from

schooling offered in other nations, from coaching offered in diverse

sports, and yes, absolutely, from training offered over the years by

non-clinicians within legal education.

The Alternative Vision reflects important contributions of finan-

cial market wizards, human rights campaigners, staff lawyers for state

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and federal agencies, management consultants, corporate transaction

lawyers, children’s advocates, labor organizers, managing attorneys

and regional counsel for legal services organizations, executive direc-

tors of large organizations, ambitious clinicians, alienated out-groups,

solo and small firm practitioners, inspired first-year lawyering (or law-

yering skills or legal research and writing) faculty, corporate execu-

tives, community activists, radical theorists, savvy staffers, astute

administrators, deep-thinking doctrinalists, imaginative academic sup-

port teachers, students too motivated to put up with traditional legal

education, and more, and more, and more.

Resourceful and persevering and well-organized—at least at our

best, at least when pressures permitted—we never hid from a brute

fact: To some degree, in our lawyering and in our clinical work, we

were making it up as we went along. Not only were we often improvis-

ing, we did so with far fewer resources than other parts of the law

school and university received for doing far less demanding work.

Playing it by ear can be both liberating and terrifying, at least for

most. Yet necessity often demands unruly and unpredictable ventures.

In this sense, those students and teachers and staff aiming to cre-

ate and improve and improve still more the vision at the heart of

clinical education worked with whatever materials were available. We

were, it’s no exaggeration to say, bricoleurs. We were, even if most of

us did not know the term, much less its intellectual origins, much less

the work of Claude L ´evi-Strauss. Emulating and learning from the cli-

ents we represented and the client communities we worked with, we

did all we could with what we had.

Most often, what we could find and work with wasn’t enough to

achieve our immediate lawyering aspirations. Even in the hands of the

ingenious, limited tools often constrain or at least strongly skew the

ability to convert what we can imagine into reality. These failures

could have proved not just disappointing but damaging to people in

need. Yet often enough, at least given the long odds, we were able to

create the unimaginably wonderful—in our lawyering and in our

training of lawyers. We celebrated those successes because they mat-

tered; though we did not celebrate for long, as other challenges

awaited us.

From our disappointments and successes, from our mistakes and

correct calls, we aimed to learn all we could. The ongoing and after-

the-fact evaluations of our lawyering and our teaching and learning

were no-nonsense and straight-ahead. For most of us, our unfolding

assessments reflected the influence of exceedingly diverse activists at

least as much as any reading of Heidegger or Habermas. Now and

then, our critiques slipped into brusque and even heated exchanges

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264 CLINICAL LAW REVIEW [Vol. 24:247

and environments. We intended to get to the heart of the matter, hop-

ing our shared aspirations and smart work would cultivate the mutual

trust we so obviously presupposed and just as obviously needed. We

held one another accountable.

* * *

As accurate as all this is, there is the danger of making these

years sound like a single, well-coordinated clinical movement. Yet

there was no such all-encompassing, utterly orchestrated effort—at

least not any that contained all the people and all the training and all

the lawyering I regard as the best of clinical education. Many clini-

cians did organize into an estimable force. And by meeting, they en-

hanced communication, the sharing of knowledge, and the support

many needed, particularly as contract workers, most often without any

security of status, much less the respect of most non-clinical tenured

faculty.

The national coordination did not, typically, include students and

staffers, much less clients, community members and the many others

(credentialed and uncredentialed) with whom clinical programs

worked. In some ways, of course, including all these people might well

have felt unmanageable to a new wave of teachers, typically on the

margins of their law school hierarchy, scrambling each day to make

new ventures work. Yet including students and staffers, and more than

occasionally clients and others, would have broadened, deepened, and

sharpened the national exchanges of how best to lawyer and how best

to train first-rate lawyers. In many local efforts, students, staffers, and

clients, community members and many diverse problem solvers

outside and inside university boundaries were frequently included and

did indeed contribute, with as much to teach as to learn.

Even within the teaching ranks, the national organization of new

clinicians hardly included everyone. Many teachers did not attend

clinical conferences or meetings (and many still don’t). Some of the

very best I knew did not even call themselves clinicians. Especially as

the numbers of clinics grew between the late 1960s and the 1990s,

many involved in the first waves of clinical programs did not know

one another. Even when there were more than a few clinics at the

same school, each clinic often worked in total isolation. Indeed, a sur-

prising number of teachers I knew worked, most of the time, seques-

tering themselves and their clinics from all other faculty at their own

law schools and most clinicians at other law schools. They found their

colleagues in their students, in the clients, in practicing lawyers, in

quite variegated and often unexpected allies outside the boundaries of

clinical education.

Yet word did spread. Most clinicians did not write scholarship,

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conventional or unconventional. Their best work, sometimes their

brilliance, was to be discovered in how they designed their clinics, how

they chose and organized the materials (in particular, readings and

exercises) they assigned, how they intermingled simulated and live

trainings, how they supervised their students, how they themselves

lawyered. If clinicians worked together at some law schools, studying

these materials and talking about choices made proved to be a train-

ing-in-residence. Most often, the more senior taught the more junior.

But most senior clinicians were, in the early 1970s, themselves new to

these challenges. And they were as likely to learn from everyone else

(including newer clinicians) as they were to teach. At our best, at our

most confident, everyone openly celebrated this truth.

Even when considerable distance separated clinics and their com-

munities, generosity ruled. Almost all were happy to share what they

had created. Going way back to the late 1960s, I know of letters being

sent from one stranger to another, asking for guidance about this or

that or everything. And the response to the letter asking for help was

often a lengthy letter, with deep and detailed responses, a guide thor-

ough and detailed about particular clinics and clinical education. And

sometimes the lengthy letter provided intellectual and pedagogical ex-

planation for the piles of mimeographed materials sent in large

banker boxes, treasures of the sort in 1976 I personally received from

Tony Amsterdam, Gary Bellow, Frank Sander, and Charles Knapp

(two did not know me, and two had no great reason to remember me).

In my judgment, by the mid-1980s, we could already discern an

Alternative Vision of training lawyers suitable to all of legal educa-

tion. Of course, in the next several years, our collective capacity to

strengthen and refine that vision grew. But even by 1990, I could sense

from the clinics I studied, from the unpublished and published materi-

als I read, and from many conversations, that the vision I perceived in

our collective work had consolidated. Teachers, students, and staff-

ers—and many others—had welded together the pieces. They had

done so in fact and in their minds.

What I perceived as an already fused together and certainly de-

scribable Alternative Vision reflected the contributions of at least two

cohorts of contributors beyond anybody’s definition of the “modern

founders.” These clinicians, non-clinicians, students, clients, staffers,

and collaborators working in the late 70s to early 90s had widened the

scope and sharpened the focus of our collective efforts. They engaged

in training about a much wider range of the work people and organi-

zations and institutions and communities collaborated with lawyers to

pursue. While the span proved obviously greater than what typically

you could find in the 1970s, so too did the focus become far more

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266 CLINICAL LAW REVIEW [Vol. 24:247

laser-like. Preparation for actual and simulated work, at least among

the best of clinical education, grew ever more knowledgeable about

the ideas, skills, and sensibilities implicated in particular sorts of prob-

lem solving and in problem solving more expansively understood.

Seeing all this work as an intelligible, credible, and convincing

alternative—as a consolidated and bolstered Vision—was a vital step.

Encouraging others to appreciate it—and to boldly act on that appre-

ciation—remains our challenge today. The past decade bluntly taught

us inescapable truths. Exhortations last only so long. Intoning the

words “social movement” can itself become a vacuous performance.

And plenty of woke folks I know seem as unwoke as they always have

been. Can it be we insist on trying to change institutions without at all

changing ourselves?

II. A

LTERNATIVE

ISION

We do not need still more Select Committees. Select Committees

that will profess to ascertain, even create, a powerful model around

which law schools could transform themselves, while in fact doing

nothing of the sort. Indeed, if anything, we need the functional

equivalent of Mission Impossible Teams, made up of those who com-

prehend and have implemented aspects of the Alternative Vision and

who are armed with a mandate to root out the destructive and ineffec-

tive and to replace it with the best of what clinical programs already

have developed and employed. The best of what clinical programs al-

ready have improved and refined over the course of the past five de-

cades. The best of what clinical programs already have demonstrated

produces graduates worthy of the sternest problem-solving challenges

new lawyers confront. And we should exhort these Mission Impossi-

ble Teams to realize this vision across the entire three-year curriculum

immediately, not “with all deliberate speed.”

Justice, of course, rightly should be understood as inescapably

everywhere in legal education. Certain realities like this, you would

think, would be obvious to all but the most thick-headed and sordid.

Yet the Mission Impossible Teams will have to make clear that justice

runs through the most belabored empirical analysis of SEC regula-

tions and in the boilerplate terms of gazillions of contracts, every bit

as much as in the torture at Guantanamo and Rikers, the hunger

within the United States and across the globe, and the violent assaults

on girls and women everywhere. You can no more partition justice

from problem solving, than you can ideology from law.

This truth has long been watered down and even denied—most

importantly, by the nominally “pluralist rules” (status-quo maintain-

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Spring 2018] Transform Legal Education 267

ing “objectivists”) demanding the presence of nearly all views.

Inevi-

tably and importantly, legal education will reflect quite varied ideas

about what justice entails and how we might achieve it. Those dis-

agreements—vividly explicit—ought reflect and influence the conflicts

present within and far beyond the United States. Yet insisting justice

does not and should not matter is incoherent and ignorant: It’s a lie.

But lies can intimidate students and faculty and staff and others.

When feeling pressured to pretend justice is not in every way impli-

cated in all problem solving, faculty and students sign a barely dis-

guised loyalty oath to a viciously dangerous “anti-ideology,” in

particular an “anti-social justice” ideology.

Of course instantiations of an explicitly social-justice-imbued Al-

ternative Vision could and would diverge in particulars, all plenty

dedicated to realizing a common idea, yet providing valuable varia-

tions on how we might put great training into action, all available to

be adopted by others, with open and enthusiastic recognition. As

much as anything, I offer this synopsis both to honor the many stu-

dents and staffers and teachers and clients and administrators and

lawyers and faculties (and so many others) who have collectively

brought this vision to life, and to evoke an appreciation of what we

would find if only we would search absolutely everywhere. Yes, every-

where, including within our own institutions, outside our familiar net-

works, in places never much publicized, much less romanticized.

To a highly compressed sketch we thus turn.

A. Animating Insights Driving The Alternative Vision

How can we understand what lawyers variously do? How can we

See Duncan Kennedy, The Social Justice Element in Legal Education in the United

States, 1 U

NBOUND

93, 103 (2005).

That’s one’s credible interpretation of Robin West’s recent work, though in her char-

acteristically thoughtful book there’s not much appreciation for the current contributions

of clinics to justice openly discussed and debated in legal education. See R

OBIN

L. W

EST

EACHING

: J

USTICE

, P

OLITICS

AND THE

EMANDS OF

ROFESSIONALISM

(2014).

Prominent and much respected clinicians have aired profound concerns about the

structure, focus, and personnel within clinical education, including among far too many

clinicians a perceived shift away from both realities of practice and the inevitably entwined

relationship of justice and competence. See, e.g., Richard A. Boswell, Keeping the Practice

in Clinical Education and Scholarship, 43 H

ASTINGS

L.J. 1187 (1992); Gary Bellow, Steady

Work: A Practitioner’s Reflection on Political Lawyering, 31 H

ARV

. C.R.-C.L. L. R

. 297

(1996); Christine Zuni Cruz, [On the] Road Back In: Community Lawyering in Indigenous

Communities, 5 C

LIN

. L. R

. 557 (1999); Stephen Wizner & Jane Aiken, Teaching and

Doing: The Role of Law School Clinics in Enhancing Access to Justice, 73 F

ORDHAM

. 1001 (2004-05); Ascanio Piomelli, The Challenge of Democratic Lawyering, 77 F

ORD-

HAM

L. R

. 1383 (2009); April Land, “Lawyering Beyond” Without Leaving Individual

Clients Behind, 18 C

LIN

. L. R

47 (2011); Sameer M. Ashar, Fieldwork and the Political,

in S

USAN

RYANT

, E

LLIOTT

S. M

ILSTEIN

& A

C. S

HALLECK

, T

RANSFORMING

DU-

CATION OF

AWYERS

: T

HEORY AND

RACTICE OF

LINICAL

EDAGOGY

288 (2014).

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268 CLINICAL LAW REVIEW [Vol. 24:247

understand the systems and institutions where they work? How can

we train them best during their three years of law school? How can we

equip them to continue to train over the course of their careers? What

changes will this require of us? Of current students, teachers, and the

many others directly and indirectly involved? What changes will this

require of law schools? In building great training teams? What ripple

effects can we begin to imagine?

To answer such questions, the best of clinical programs have em-

ployed varied strategies. For all the diversity, we could see, even very

early on, shared steps. What we all routinely did was to begin by

wildly expanding the shrunken and flattened depictions of the world

legal education historically regarded as optimal. Even among early

prominent clinicians, and among many clinicians in 2018, this main-

stream portrait remains deeply persuasive, tacitly presupposed and

projected time and again.

In Ascanio Piomelli’s masterful unpacking of “client-centered”

interviewing and counseling, he offers this telling sketch:

First published at a time of political tumult, outside and within legal

education, David Binder and his colleagues’ depictions of client-

centeredness harken back to a time when lawyers’ work and train-

ing could be understood as professional through-and-through, neu-

tral, and anti-ideological, tacitly insisting that the social, economic,

political, and legal realms do not overlap, intersect, or inevitably

define one another. And yet their ideas simultaneously challenge

lawyers to explore emotional and relational dimensions of clients’

lives that the profession had long ignored. Client-centeredness con-

tinues to make many feel good about the world, their training, and

practice, even if—and perhaps because—it overlooks the deeply

fractured and divergent settings in which subordinated clients and

their lawyers work and live. . . .

Arising in part from the neutral, universally applicable, profes-

sional “skills” focus from which it arose, client-centeredness typi-

cally presents itself as apolitical. It does not proffer any explicit

vision of our society, political economy, or even the legal system.

Implicitly, though, it seems to presume that our legal system typi-

cally provides meaningful and effective remedies, so long as lawyers

and clients attend to legal interventions’ possible adverse “non-le-

gal” consequences—most typically on clients’ relationships with

others. Binder and his colleagues cast the legal realm as the lawyer’s

primary domain of action and the “non-legal” as the client’s realm,

with little discussion of the interplay between them.

In these respects, client-centeredness does not break with law

school and the profession’s image of lawyer as champion or tradi-

tional hero. The client-centered lawyer is still the primary actor, the

protagonist who enters the fray, skillfully faces adversaries, and de-

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livers results at the client’s behest. Client-centeredness seeks to en-

sure that the lawyer is no longer Don Quixote, charging off on

behalf of others who have not asked him to act on their behalf or

signed off on his plan. But it still presumes that the now well-in-

formed and well-instructed lawyer acts on behalf of her client in the

legal realm as a solitary expert, guide, and champion.

In stark contrast, in the efforts to build and strengthen the Alter-

native Vision, the reality we offered one another looked like Dostoev-

sky’s and Sackville-West’s novels, Baldwin’s essays, Lispector’s

stories, Van Gogh’s letters, Lorde’s and Bishop’s poems, Rosaldo’s

cultural anthropology, Anzald ´ua’s and White’s theory, Abel’s sociol-

ogy, Pitkin’s politicized constitutions, Simon’s economics and public

administration, Austin’s and Reagon’s coalitional ethnographies,

Bruner’s psychology and education, Monk’s and Nyro’s musical

compositions.

With this far more accurate account of reality (big structures and

fine details and contradictions everywhere, absolutely discomfiting

and buoyantly aspiring), we wanted to comprehend as best we could

all that lawyers did across roles and institutions and systems. That as-

piration bears repeating: We wanted to comprehend all that lawyers

did, in all settings and even when the work did not have a handy label.

We wanted to do so to know and to understand the phenomena. Only

by aiming to better know and understand all that was happening could

we begin with greater confidence to appreciate what we ourselves

were learning and teaching, what we ourselves were doing when we

lawyered. Our knowledge and understanding could be tested, in turn,

by our capacity to discern patterns and to depict what we discerned.

Straight-ahead and reliable depictions achieve both aesthetic and

instrumental ends. To the degree we students, staffers, teachers, cli-

ents, and others could compose elegant depictions of complex phe-

nomena, we ourselves appreciated the beauty of the work we tried to

understand and the work we ourselves were doing. To the extent the

elegant descriptions equipped us to predict (in real life lawyering, say)

and to design (the training of lawyers, say, in law schools almost en-

tirely focused on law), we enhanced our capacity to lawyer well and to

teach and learn the first-rate practice of law.

We routinely reported to one another—and sometimes wrote, in

unpublished and published form—portrayals we hoped economically

captured the patterns we perceived. Predictably enough, our portray-

als were often partial, diverging from one another, leaving far more

work to be done. Yet in time, more and more basics seemed to be

shared, even when produced by people who did not know one an-

Ascanio Piomelli, Rebellious Heroes, 23 C

LIN

. L. R

. 283, 296, 298-99 (2016).

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270 CLINICAL LAW REVIEW [Vol. 24:247

other, much less routinely work together. It was absolutely a collective

effort, but not in the sense of coordinated activity, directed from on-

high or by all of us in a formally cooperative fashion.

In any event, I perceived the outlines of both how to understand

lawyering and how to train lawyers by the late 1970s. My perception

certainly reflected the work of the first decade of modern clinical legal

education. But non-clinicians of the same era made important contri-

butions. As did lawyers and legal academics from earlier generations

still. Every bit as importantly, I vividly remember how much I, and

how much at least some others, learned from an important cluster of

interdisciplinary scholars (decades ahead of us in their work on some

overlapping themes) and, most prominently, from our clients and their

communities.

B. Lawyers As Problem Solvers Among Other Problem Solvers

A coherent way—for me, the only mightily coherent way—to un-

derstand what lawyers do, across roles and situations and realms, is to

understand they’re always engaged in problem solving. No, that abso-

lutely does not mean “problem solving” is one of a long and growing

list of “things lawyers do,” as increasing numbers appear inclined now

more than ever before to insist.

Those who create these lists confuse

the particular names we give to various activities with what lawyers

do, no matter the particular task and situation and institution.

Whether you prefer to call this comprehensive claim a theoretical or a

sociological observation makes no difference. Lawyers always work

with others in framing and addressing problems. They’re problem

solvers.

That does not mean, in the least, that the problem solving lawyers

pursue is ineffable or unique. To the contrary, the best of clinical pro-

grams can and have described what lawyers do when they lawyer. Pre-

cisely because these descriptions have been straightforward, they can

existentially upset—discombobulate—many within and outside the

profession. Demystification can produce such effects. Most, including

those who yearn for and indeed help produce methods to rid ourselves

of what may be puzzling and even bewildering, can feel newly disori-

ented by exactly what they discover to be true.

Rather than proving a discontinuous way of dealing with life’s

endlessly varied circumstances, professional lawyering proves to be a

stylized variation of human problem solving—just like the practices of

For prominent examples of this tendency, see the focus in the reformed curricula at

law schools like Harvard, Northwestern, Stanford, UC Irvine, Washington and Lee. Gerald

P. L ´opez, Transform—Don’t Just Tinker With—Legal Education, 23 C

LIN

. L. R

. 471,

app. 1 (2017).

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Spring 2018] Transform Legal Education 271

every other profession and craft and trade and discipline. Likewise,

rather than proving a unique way of reasoning, legal analysis (“think-

ing like a lawyer”) proves to be a stylized variation on everyday analy-

sis we all engage in as part of everyday living—just like the analysis of

every other profession and craft and discipline. Unlike others, the best

of clinical legal education did not begin by studying the professions

(“major” and “minor” as some wrongheadedly would have it

)—ei-

ther because they have been deemed singular or perceived to be in

crisis. Instead, as our point of departure, we have examined the every-

day practice of human problem solving.

To understand how we solve problems, the best of clinical legal

education has looked to our daily living—to concrete, mundane mo-

ments of problem solving. Capturing in explicit and written form what

we, at once, feel and think and what we are and what we do in these

moments is our conception of the practice of human problem solving.

(That is our method, and that is our theory.) What do the thoroughly

competent everyday folks among us know when we competently

frame and address problems? What do the virtuosos in our midst

know when they work like virtuosos? What have the efforts of the

best of clinical legal education revealed when trying to convert often

tacit know-how into explicit descriptions of problem solving practices?

C. Lawyering As Stylized Variation On Human Problem Solving

Oakland.

Standing in my kitchen, I feel the temperature of the room, a

draft from the window, the floor under my feet, the clothes on my

body, an itch, a bruise, chronic pain. I see light and space and colors

and shapes and objects. I smell cooking food, dish detergent, floor

cleaner, or perhaps the absence of any of these. I taste the snack I’m

munching on (how salty? Bitter? Sweet? Spicy?) or the taste of my

own saliva. I hear children playing outside, the dishwasher running,

the cars rushing by on Market Street.

If I had to pay attention to all these at once, I would be utterly

paralyzed. Fortunately, not all of them are important at any one mo-

ment, and I can safely ignore almost everything that’s happening

around me. At least, so I tell myself.

Stimuli often indecipherable and always indeterminate wildly ex-

ceed our capacity to make meaning. Even a good night’s sleep and a

soothing cup of coffee do not rid me of this brute truth. So, how can

For a nonsense hierarchy of the professions, see Nathan Glazer, The Schools of the

Minor Professions, 12 M

INERVA

346 (1974). Glazer’s views, in important respects, trace

their origins to Veblen’s unfortunately influential work. See T

HORSTEIN

EBLEN

, T

IGHER

EARNING IN

MERICA

(1918).

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272 CLINICAL LAW REVIEW [Vol. 24:247

we project onto these data, and in turn experience as actual, an under-

standing reliable enough to act as a depiction of what is happening?

We cannot make sense of our realities, and yet we must. And yet we

do. Even circumstances devoid of human interaction, down to the

most banal, embody more information than we can possibly process at

once.

Only where my perceptions deviate from my expectations, or

when I’m focusing on a particular thing for a particular purpose, does

any one of these perceptions lay claim to my attention: The smell of

gas means danger; if I turn on the dishwasher, the absence of the fa-

miliar noise means it’s broken, which will require me to act; I hear

footsteps on the stairs and pay attention long enough to note the

heaviness of the footfalls—the person making them is not my wife.

By virtue of my experiences, I have developed stock structures to

sort through the incredible volume of information that floods me dur-

ing every waking moment. I know what gas smells like, how a running

dishwasher sounds, the cadence of my wife’s footfalls. Where a stimu-

lus deviates from anything I’ve experienced (or paid attention to)

prior, I use likeness judgments to interpret—to make meaning by

comparison. Were I to listen for a friend’s footfalls, I’d have more

trouble discerning them than picking out my wife’s. But I wouldn’t

likely be fooled by the sound of a closing door.

Make no mistake—I am always, always making meaning. Even

where my senses are overwhelmed or where what I’m experiencing is

too unfamiliar to sort, I make meaning. I think or say, “This is a

mess!” I think or say, “This is overwhelming!” But even to label some-

thing an “overwhelming mess” is to label it, to assign it a category and

put it in the corresponding box.

Where social interaction is involved, social conventions contrib-

ute some of the stock structures I use to make meaning. If I want to

ride a bus, I’ll pay my fare with money rather than overpowering the

driver or offering to barter with my labor. The social conventions that

inform my choices reflect society’s values: At least in this setting, we

value decorum and order, and accept our brand of capitalism. And

here too I make likeness judgments; even if I’ve never before taken a

bus in this city, I know that this transaction will likely resemble other

bus rides I’ve taken, where decorum and capitalism ruled, where I

stood at a bus stop designated by a sign and the driver stopped the bus

and admitted me, where communication with the driver was verbal

rather than via gesture or dance.

Of course, particular situations trigger particular stock structures,

and some of these situations may be so dissimilar to those I’ve previ-

ously encountered as to test the limits of my ability to make likeness

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Spring 2018] Transform Legal Education 273

judgments. If I’ve never before ridden a public bus, I may need gui-

dance from someone in the know, who can give me the lay of the land,

making explicit for me what he as an insider thoroughly understands,

and can do so in terms that make sense to me. A public transit guru

can tell me which bus to take, where to get on and off, that I should

look up from my phone or newspaper as the bus approaches (to avoid

being passed up), the amount of the fare, and to bring exact change.

Armed with this information, I will be like a person who consults with

an attorney or visits a legal self-help center—more likely to be able to

obtain for myself the outcome I desire.

But what about situations in which having been taught about the

operation of the system isn’t enough? Learning the how-tos of bus-

riding by tutelage rather than by repeated experience means I lack the

facility that would assist me in handling conflicts or obtaining devia-

tions from the convention. I will need to hold the how-tos in my

mental hands, carrying rather than having absorbed them, and this

will reduce my ability to deal with variations for which my tutelage

has not prepared me. The transit guru has not explicitly considered

and planned for every bus-riding wrinkle that might come his way, but

his internalization of the stock structures that surround and comprise

the bus-riding experience put him on much better footing than I, a

layperson, to deal with the unexpected. I have a traveler’s dictionary,

but he speaks the language.

In such situations, it would be to my advantage to prevail upon

him to represent me. If we take the bus together, and I’ve forgotten

my fare (while the guru has his own fare but no more), Guru will

know far better than I how to persuade the driver to let me ride for

free. Using the stock structures he’s amassed by virtue of exposure to

bus riding, he’ll know the tone to strike in speaking to the driver (col-

loquial but respectful) and how long his communication should be

(just long enough to make the driver impatient). He’ll know what out-

siders and sometime passengers don’t: That drivers often view

fareboxes as gatekeepers and the payment of a fare as a sign of re-

spect. That in drivers’ experiences, a person who pays her fare is less

likely to make trouble than one who doesn’t. (As one driver told him,

“I want them to put some money on the line.”) That the driver won’t

be penalized for letting me ride free, but that nevertheless the deci-

sion may be against us for reasons beyond our control, like the

driver’s mood because of an earlier altercation or traffic jam.

And Guru will tell a story, and not just because those asking for

free rides always tell stories— about how they lost their sticker, their

transfer, their wallet, about how their check hasn’t come and they just

spent their last dollar, about a sick mother down the road in need of

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274 CLINICAL LAW REVIEW [Vol. 24:247

her medicine. Guru will tell a story because stories are as important to

persuasion as are arguments and as are the categories they create and

reflect. In its conceit about the existence of objective truths, the cul-

ture at large has cast stories and arguments as separate, but in fact

they are intertwined and inseparable. Just as judges do far more than

call balls and strikes, there is no such thing as an objective story. And

just as the flood of stimuli in which we swim at every moment must be

pared down in order to be digestible and navigable, the telling of an

intelligible story requires the selection and omission of events, per-

spectives, details, such that the result is inevitably shaded in some di-

rection and to some degree.

Guru will attempt to tell a story that both makes sense to the

driver and that results in a free ride. In doing so, he will draw on his

knowledge of the forum, the driver’s likely predilections, and the sto-

ries he has heard from other passengers asking for free rides, emulat-

ing those that have been successful.

But there are limitations on the sort of story Guru may employ.

He himself may have compunctions about telling an outright lie,

whether because he subscribes to the cultural convention that eschews

dishonesty or because he fears for his own reputation in a space where

he’s a repeat player. But, more to the point, to lie while representing

me would be to tread too heavily on my autonomy. I am already giv-

ing up an essential piece of myself (control) in allowing myself to be

represented; for my re-presented self to be a person quite unlike me,

without my explicit consent, would be too much of an imposition, too

high a price for me to pay.

As it happens, the driver is not persuaded—and, conveniently

enough, there is a supervisor on board. Guru sees her sitting near the

front of the bus and calls upon her to intercede. The supervisor is not

neutral and objective either, as we might desire such a decision-maker

to be, but here she is near enough as to appear dispassionate, which is

how we perhaps most often perform neutral objectivity. As a member

of management, her role is to both support and check workers like the

driver, and as a higher-up in a public agency, she simultaneously sup-

ports and checks members of the public like Guru and me. However

impossibly contradictory the charges, her role is one of authority, and

both the driver and the public are predisposed to listen to her. The

three of us will abide by the decision she makes.

One of the reasons supervisors are respected is that their deci-

sions tend to be “rational”—in line with social conventions (stock

structures) and seeming to follow (or at least framed as following)

from the circumstances presented to them. Her decisions “cohere.”

Were supervisors to regularly throw passengers off buses willy-nilly or

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Spring 2018] Transform Legal Education 275

publicly chastise bus drivers for no reason, their authority would de-

cline, and one or the other party would cease to respect their deci-

sions. Because of this, supervisors internalize the pressures to be

predictable—to make the same decisions when presented with the

same sets of circumstances.

This need for predictability means that the stock structures on

which supervisors rely for their decisions are reiterated, reinforced,

and perpetuated each time such a decision is made. Every time a su-

pervisor kicks a drunk off the bus, the notion that it’s not okay to be

drunk on the bus is reinforced for everyone present—and because it’s

not okay to be drunk on the bus, the supervisor’s action is validated.

The stock structures that inform conflict resolution and the person or

system that has the power to enforce them constitute and reinforce

one another.

Had Guru seen the supervisor earlier and anticipated her inter-

vention, he might have framed his story differently—as one that

would be convincing to the supervisor rather than to the bus driver. In

these circumstances, he’s now stuck with the story as he framed it for

the driver, and the success of our endeavor depends in large part on

how well that story fits in with the stock structures that are in the

supervisor’s interests to uphold.

* * *

The problem solving in which lawyers engage is not special—it is

“merely” human problem solving pursued in a particular arena. To

privilege the problem solving lawyers do above that engaged in by lay

lawyers is both to fail to make the appropriate likeness judgment and

to denigrate the abilities of everybody else. Lawyers did not find their

problem solving under The Bramble Bush—it was cut in whole cloth

from the fabric of everyday life.

D. Legal Analysis As Stylized Variation On Everyday Analysis

A way—and for me, the only deep way—to begin to recognize,

understand, and produce quality legal analysis is from this point of

departure: Just as the problem solving lawyers pursue is a stylized va-

riation on human problem solving, legal analysis is a stylized variation

of all analysis.

Analysis embodies one expression of problem solving,

This heterodox (some think blasphemous) way of thinking about legal analysis arises

through experience, through study and teaching and lawyering, through some sustained

combination. See, e.g., Gerald P. L ´opez, Rebellious Theory of Legal Analysis (2016) (un-

published manuscript on file with author) [hereafter L ´opez, Rebellious Theory]; Gerald P.

L´opez, Changing Systems, Changing Ourselves, 12 H

ARV

. L

ATINO

L. R

. 15 (2009) [here-

after L ´opez, Changing Systems]; D

UNCAN

ENNEDY

, L

EGAL

EASONING

: C

OLLECTED

S-

SAYS

(2008); J

OHN

ELANEY

, H

OUR

EST

CHOOL

XAMS

(4th ed.

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276 CLINICAL LAW REVIEW [Vol. 24:247

of all problem solving, not just what lawyers do. We’re always making

meaning—just to take the next step. And inevitably we employ our

standard stocks of meaning-making instruments. We invariably use

stock categories, stories, and arguments. And what stocks we use and

how we use them depend upon the role we’re in, the culture and set-

ting in which we find ourselves, and what effective meaning-making

means.

Learning to analyze well, in writing, requires learning how to for-

mulate questions (Yes, formulate questions = frame issues) and how

to resolve them (Yes, resolve includes tentatively predicting likely res-

olution of questions (“predictive”) or assessing how others within the

mainstream of some culture are likely to interpret (“objective”)).

Learning to analyze well means we must learn how to formulate and

resolve questions in ways central to the community in which we’re

claiming membership. Molecular biologists, plumbers, screenwriters,

child care providers formulate and resolve questions in some ways and

not others. So do lawyers. If we want to speak to and as a molecular

biologist, plumber, screenwriter, childcare provider, or lawyer, we

must make meaning as they do. We must formulate and resolve ques-

tions as they do. Otherwise members of those communities will not

regard us as one of them.

We should acknowledge that lawyers have for some time come to

treat their way of doing “analysis’ as especially worthy. Yet we should

not regard that cultural construct as anything but, well, a cultural con-

struct. Perhaps this fact reflects the complicated place of unelected

judicial officers in a democratic regime; perhaps Langdell’s scientific

aspirations; perhaps the way the guild projects special worth. In any

event, there’s absolutely no reason lawyers ought think “legal analy-

sis” more worthy of veneration or even esteem than the analysis pro-

duced by molecular biologists, plumbers, screenwriters, and child care

providers. Or anyone else, for that matter, including especially “every-

day folks” sorting through life’s questions. Each proves worthy of

study, of grasping, of learning to produce as our desire and needs—as

our jobs—require.

2006); J

OHN

ELANEY

, L

EARNING

EGAL

EASONING

: B

RIEFING

, A

NALYSIS

AND

HE-

ORY

vi-xviii (3d ed. 2006); A

NTHONY

G. A

MSTERDAM

& J

EROME

RUNER

, M

INDING THE

(2000); R

ICHARD

OSNER

, D

IVERGENT

ATHS

THE

CADEMY AND THE

UDICIARY

(2016); R

OBERTO

ANGABEIRA

NGER

, W

HAT

HOULD

EGAL

NALYSIS

ECOME

(1996). Of the robust versions of the orthodox approach, offered particularly by insightful

realists, sometimes suggesting far more than authors ever championed or even made ex-

plicit, see, e.g., K

ARL

N. L

LEWELLYN

, T

RAMBLE

USH

: O

TUDY

(1960)(1930); Karl N. Llewellyn, Remarks on the Theory of Appellate Decisions and the

Rules or Canons About How Statutes Are to Be Construed, 3 V

AND

. L. R

. 395 (1950);

Jerome Frank, Both Ends Against the Middle, 100 U. P

. L. R

. 20 (1951); E

DWARD

EVI

, A

NTRODUCTION TO

EGAL

EASONING

(1963)(1948).

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Spring 2018] Transform Legal Education 277

Interpretation always entails—and provides the means to—un-

derstanding phenomena. Without understanding, we cannot know.

And without knowing, we cannot consciously pursue persuasion with

the subtlety and force we aim to achieve. Much as we understandably

speak of persuading others, we most often use our stock meaning-

making structures to persuade ourselves of one or another meaning.

That’s how we come to say to ourselves we understand—or at least act

as though we do. That’s true of all of us, including lawyers of every

sort. (No, no matter how much Neil Gorsuch or John Roberts or any-

one else insists, judges cannot exempt themselves from our shared

ways of making meaning.)

E. Rebellious vs. Regnant Vision of Problem Solving

Just in living every day, experiencing how we variously work with

one another, (through law and every realm, through relationships of

every sort), we can and sometimes do become aware of two compet-

ing visions of problem solving practice: the reigning champion (“reg-

nant”) and the insubordinate challenger (“rebellious”).

We can

My outline sketch of the reigning and rebellious visions—and the relationship be-

tween the two—can be further studied in what now has become a substantial literature,

across disciplines, if sometimes using different labels. For especially illuminating scholar-

ship produced by clinicians and practitioners as part of this Symposium, see Anthony V.

Alfieri, Rebellious Pedagogy and Practice, 23 C

LIN

. L. R

. 5 (2016); Stephen Carpenter,

Family Farm Advocacy and Rebellious Lawyering, 24 C

LIN

. L. R

. 79 (2017); Eduardo

R.C. Capulong, Client as Subject: Humanizing the Legal Curriculum, 23 C

LIN

. L. R

. 37

(2016); Patience Crowder, What’s Art Got to Do with It: A Rebellious Lawyer Mindset in

Transactional Practice, 23 C

LIN

. L. R

. 53 (2016); Tara Ford, Pegasus Legal Services for

Children Taking Stock of a Rebellious Non- Profit Practice in New Mexico, 23 C

LIN

. L.

. 107 (2016); Martha L. G ´omez, The Culture of Non-Profit Impact Litigation, 23 C

LIN

L. R

. 635 (2017); Bill Ong Hing, Contemplating a Rebellious Approach to Representing

Unaccompanied Immigrant Children, 23 C

LIN

. L. R

. 167 (2016); Brenda Montes, A For-

Profit Rebellious Immigration Practice in East Los Angeles, 23 C

LIN

. L. R

. 707 (2017);

Daria Fisher Page, Etta & Dan: Seeing the Prelude to a Transformative Journey, 23 C

LIN

. L.

. 251 (2016); Shauna Marshall, Rebellious Deaning, 24 C

LIN

. L. R

. 135 (2017).

For only some of the exemplary scholarship about lawyering developed over the past

decades, see, e.g., Muneer I. Ahmad, Interpreting Communities: Lawyering Across Lan-

guage Difference, 54 UCLA L. R

. 999 (2007); Sameer M. Ashar, Law Clinics and Collec-

tive Mobilization, 14 C

LIN

. L. R

. 355 (2008); Alina Ball, An Imperative Redefinition of

“Community”: Incorporating Reentry Lawyers to Increase the Efficacy of Community Eco-

nomic Development Initiatives, 55 UCLA L. R

. 1883 (2008); Paula Galowitz, Collabora-

tion Between Lawyers and Social Workers: Re-examining the Nature and Potential of the

Relationship, 67 F

ORDHAM

L. R

. 2123 (1999); Bellow, supra note 3; Luke W. Cole, Em-

powerment as the Key to Environmental Protection: The Need for Environmental Poverty

Law, 19 E

COLOGY

L.Q. 619 (1992); Luke W. Cole, Macho Law Brains, Public Citizens,

and Grassroots Activists: Three Models of Environmental Advocacy, 14 V

. E

NVT

’

L.J.

687 (1995); Bill Ong Hing, Coolies, James Yen, and Rebellious Advocacy, 14 A

SIAN

L.J. 1 (2007); Bill Ong Hing, Nonelectoral Activism in Asian Pacific American Communities

and the Implications for Community Lawyering, 8 A

SIAN

. A

. L.J. 246 (2002); Bill

Ong Hing, Raising Personal Identification Issues of Class, Race, Ethnicity, Gender, Sexual

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278 CLINICAL LAW REVIEW [Vol. 24:247

identify these rivals in professional lawyering and in every other prob-

Orientation, Physical Disability, and Age in Lawyering Courses, 45 S

TAN

. L. R

. 1807

(1993) [hereafter Hing, Raising Personal Identification Issues]; Shin Imai, A Counter-

Pedagogy for Social Justice: Core Skills for Community-Based Lawyering, 9 C

LIN

. L. R

195 (2002); Minna J. Kotkin, Creating True Believers: Putting Macro Theory Into Practice, 5

LIN

. L. R

. 95 (1998); Dale Minami, Asian Law Caucus: Experiment in an Alternative, 3

MERASIA

J. 28 (1975); Shauna I. Marshall, Mission Impossible?: Ethical Community Law-

yering, 7 C

LIN

. L. R

. 147 (2000) [hereafter Marshall, Mission Impossible]; Charles J.

Ogletree, The Quiet Storm: The Rebellious Influence of Cesar Chavez, 1 H

ARV

. L

ATINO

. 1 (1994) [hereafter Ogletree, Quiet Storm]; Ascanio Piomelli, Appreciating Collabo-

rative Lawyering, 6 C

LIN

. L. R

. 427 (2000) [hereafter Piomelli, Appreciating]; Ascanio

Piomelli, Foucault’s Approach to Power: Its Allure and Limits for Collaborative Lawyering,

2004 U

TAH

L. R

. 395 [hereafter Piomelli, Foucault’s Approach]; Ascanio Piomelli, The

Democratic Roots of Collaborative Lawyering, 12 C

LIN

. L. R

. 541 (2006) [hereafter Pi-

omelli, Democratic Roots]; Piomelli, supra note 4; William P. Quigley, Reflections of Com-

munity Organizers: Lawyering for Empowerment of Community Organizations, 21 O

HIO

N.U. L. R

. 455 (1994); Dean Hill Rivkin, Lawyering, Power, and Reform: The Legal

Campaign to Abolish the Broad Form Mineral Deed, 66 T

ENN

. L. R

. 467 (1999); Laura

L. Rovner, Disability, Equality, and Identity, 55 A

. L. R

. 1043 (2004); Ann Shalleck,

Constructions of the Client Within Legal Education, 45 S

TAN

. L. R

. 1731 (1993) [hereaf-

ter Shalleck, Constructions of the Client]; Ann Shalleck, Comparative Family Law: What is

the Global Family? Family Law in Decolonization, Modernization and Globalization, 19

. U. J. G

ENDER

. P

OLICY

& L. 449 (2011); Ann Shalleck, The Feminist Academic’s

Challenge to Legal Education: Creating Sites for Change, 20 J.L. & P

OLICY

101 (2012);

Clyde Spillenger, Elusive Advocate: Reconsidering Brandeis as People’s Lawyer, 105 Y

ALE

L.J. 1445 (1996); Julie A. Su, Making the Invisible Visible: The Garment Industry’s Dirty

Laundry, 1 J. G

ENDER

ACE

& J

UST

. 405 (1998); Lucie E. White, Collaborative Lawyering

in the Field? On Mapping the Paths from Rhetoric to Practice, 1 C

LIN

. L. R

. 157 (1994);

Lucie E. White, Mobilization on the Margins of the Lawsuit: Making Space for Clients to

Speak, 16 N.Y.U. R

. L. & S

. C

HANGE

535 (1987-88); Lucie White, Paradox, Piece-

Work, and Patience, 43 H

ASTINGS

L.J. 853 (1992); Lucie White, Representing “The Real

Deal”, 45 U. M

IAMI

L. R

. 271 (1990-91); Lucie E. White, To Learn and Teach: Lessons

from Driefontein on Lawyering and Power, 1988 W

. L. R

. 699 [hereafter White, To

Learn and Teach]; Zuni Cruz, supra note 3. For a powerful articulation of a rebellious

vision of public defender and indigent criminal defense practice, see C

MTY

. J

USTICE

NST

RENNAN

FOR

USTICE

, T

AKING

UBLIC

EFENSE TO THE

TREETS

(2001), http://

www.brennancenter.org/page/-/d/download_file_34975.pdf; see also Kim Taylor-Thomp-

son, Effective Assistance: Reconceiving the Role of the Chief Public Defender, 2 J. I

NST

FOR

TUDY

EGAL

THICS

199 (1999); Kim Taylor-Thompson, Individual Actor v. Institutional

Player: Alternating Visions of the Public Defender, 84 G

. L.J. 2419 (1996); Kim Taylor-

Thompson, The Politics of Common Ground, 111 H

ARV

. L. R

. 1306 (1998) (reviewing

ANDALL

ENNEDY

, R

ACE

, C

RIME

AND THE

(1997)); Charles J. Ogletree, An Essay

on the New Public Defender for the 21st Century, 58 L

& C

ONTEMP

. P

ROBS

. 81 (1995).

For some of my own work elaborating from many angles the rebellious vision, and

along the way, demonstrating how it challenges the regnant vision, see G

ERALD

P. L

OPEZ

EBELLIOUS

AWYERING

: O

HICANO

’

ISION OF

ROGRESSIVE

RACTICE

(1992)

[hereafter L

OPEZ

, R

EBELLIOUS

AWYERING

]; Gerald P. L ´opez, Economic Development in

the “Murder Capital of the Nation,” 60 T

ENN

. L. R

. 685 (1993); Gerald P. L ´opez, Shap-

ing Community Problem Solving Around Community Knowledge, 79 N.Y.U. L. R

. 59

(2004) [hereafter L ´opez, Shaping Community Problem Solving]; Gerald P. L ´opez, A Rebel-

lious Philosophy Born in East L.A., in A C

OMPANION TO

ATINA

TUDIES

240 (Juan

Flores & Renato Rosaldo eds., 2007); Gerald P. L ´opez, The Health of Undocumented Mex-

icans in New York City, 32 C

HICANO

-L

ATINO

L. R

. (2013) [hereafter L ´opez, Health

of Undocumented Mexicans].

\\jciprod01\productn\N\NYC\24-2\NYC203.txt unknown Seq: 33 15-MAR-18 13:48

Spring 2018] Transform Legal Education 279

lem solving practice, including how we govern ourselves through de-

mocracies. And making these contrasting visions explicit proves

crucial to the practice of problem solving and to the training of law-

yers who pursue such work across roles, situations, and institutions.

That’s not at all to say that making such a contrast as apparent as

possible and as precise as defensible will automatically (or even likely)

incline any group to candidly come to grips with how they do their

work and what they would have to do to change it, even if they

wanted to. Yet the contrast between regnant and rebellious, evoca-

tively drawn, permits everyone to exercise the capacity to choose how

they work and live with one another rather than simply acquiesce in

whatever might otherwise appear natural or inevitable. Enhancing

that ability has mattered in the past (for women, Queers, communities

of color) and could matter in, and to, the future.

In the prevailing (“regnant”) vision, experts rule and collaborate

principally and often exclusively with one another. Believing or at

least behaving as if they can see superbly and widely in all directions,

these experts variously offer opinions and issue mandates and formu-

late policies and distribute protocols and determine strategies. On the

receiving end, workers and citizens and clients and patients typically

comply, even if in principle they are free to choose otherwise. Our

systems and our practices rationalize this division of labor as the prod-

uct of merit and a demonstration of good sense. Some are simply bet-

ter suited and better trained to serve as experts, and everyone ought

value the wisdom in this particular social order.

Members from any group can cross the line in either direction, of

course. Yet most of the time, across millennia, we can anticipate in

advance who more likely than not will serve as expert and who more

likely than not will be in need of such expertise. From the perspective

of its supporters, it is a virtue and not a vice that, in problem-solving

relationships and in democracies, the reigning vision does not ask peo-

ple to do more than they can. And it is an advantage that the reigning

vision indicates—to all and in advance—who should rule, who they

should collaborate with, and who they should counsel and guide. This

sort of hierarchy proves both an accurate reflection of human nature

and a programmatic approach to a life well led. Citizens choose reg-

nant democracies, and clients choose regnant lawyers.

The rebellious vision, by contrast, aims to produce, and depends

upon, networks of co-eminent practitioners, collaborating with each

other, in efforts to frame and address problems from varied perspec-

tives, aiming to produce in the future a radically egalitarian and demo-

cratic future, aspiring already to embody such a reality in their current

efforts. Especially because no caste and no individual is presumed to

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280 CLINICAL LAW REVIEW [Vol. 24:247

see panoramically or to transcend bounded rationality, these collabo-

rators learn from each other. No, not top-down or bottom-up, but

every which way and over and over. Everyone appreciates the need to

monitor and evaluate collective and individual efforts precisely to

learn how to improve the problem solving itself.

Of course in building and enhancing practice fundamentals, ab-

stracted theories and details of past efforts count equally, as do techni-

cal sophistication and street savvy. And of course “warts and all”

depictions of performance and generous shout-outs to all contributors

must (and already often enough have) become deeply appreciated

rather than perceived as too candid for the thin-skinned and too gen-

erous for the self-promoting. The collective effort to secure coopera-

tion in the midst of unavoidable complexity, difference, and

vulnerability, inevitably through and enmeshed in power strategies,

seizes as its launching point and proclaims as its aspiration engaging

equals in understanding and enhancing life.

In response to the challenge of the rebellious vision, some advo-

cates of the regnant vision candidly and comprehensively describe

why they regard their approach, their theory, as normatively superior

and as practicably more doable. From Schumpeter to Posner, these

theorists proudly defend their aspirations and methods.

From all

available evidence, they feel no unease, no defensiveness, no pangs of

conscience. Nor should they. Openly, strappingly, and fair-mindedly

advocating for what they believe to be true and best is thoroughly

commendable. They dig down deep to basic assumptions and aspira-

tions and methods and declare openly the world they regard as worthy

of their energetic defense.

Were such a straightforward response only true among lawyers

and law professors who believe in, but do not nearly so robustly de-

fend, the regnant vision of lawyering. Instead, most do not respond at

all, at least not in writing. Fair enough, many and perhaps the great

In this sense, as in all others, the rebellious vision of problem solving and radical

democratic theory inform one another, a powerful theme about which I have learned much

from Ascanio Piomelli. For a deservedly influential account of how radical democratic the-

ory parallels, shares, and reflects rebellious visions of problem solving, see Piomelli, Demo-

cratic Roots, supra note 8. For other perceptive analyses of lawyering and democratic

theory, see, e.g., Lucie E. White, Creating Models for Progressive Lawyering in the 21st

Century, 9 J.L. & P

’

297, 303 (2001) (comments of Lucie E. White); Lucie White, “De-

mocracy” in Development Practice: Essays on a Fugitive Theme, 64 T

ENN

. L. R

. 1073

(1997). For parallel literatures reflecting related aims and methods tied to pragmatic vi-

sions of radical democratic life, see, e.g., R

OBERTO

ANGABEIRA

NGER

, T

ELF

WAKENED

: P

RAGMATISM

NBOUND

(2007); Charles Sabel, Dewey, Democracy, and

Democratic Experimentalism, 9 C

ONTEMPORARY

RAGMATISM

35 (2012).

See J

OSEPH

A. S

CHUMPETER

, C

APITALISM

, S

OCIALISM

AND

EMOCRACY

(1942),

and for a modern defense of Schumpeter by an influential scholar and jurist, see R

ICHARD

A. P

OSNER

, L

, P

RAGMATISM

AND

EMOCRACY

(2003).

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Spring 2018] Transform Legal Education 281

majority of those who believe in the regnant vision feel no threat. Of

those who may, some mock the Pollyannaish and dystopian strains

they insist the Rebellious Vision embodies.

A small number even

attack the rebellious approach, substituting unsupported assertions

and falsifiable claims for the full-bodied elaborations we should all

hope to encounter.

And others, still, practice regnantly in the name

of “client-centered” work.

Perhaps ignoring, making fun of, and attacking through

fabrication and distortion will indeed bury the rebellious vision. After

all, these strategies parallel what any number of public officials do in

seeking and securing electoral victories. Yet even if the rebellious vi-

sion again recedes from view, history tells us it shall not vanish. By

whatever name, the insubordinate challenger to the reigning vision of

problem solving practice will lie dormant, available in future cycles to

be surfaced, pushed for, mobilized around through one or more social

movements.

Life teaches, though, that there is no correlation between formal

ideology and the sort of problem solving practice pursued. Initially

that would seem inaccurate. After all, the work of Ascanio Piomelli

has convincingly demonstrated the deep relationship between visions

of lawyering and visions of democracy.

The assumptions, methods,

and aspirations of rebellious lawyering and radical democratic theory

parallel and shape one another—as do the assumptions, methods, and

aspirations of regnant lawyering and experts-rule democratic theory.

Yet experience illuminates that formal ideology tells us little reliable

about how we all choose to collaborate with others across a range of

problem-solving roles and institutions.

See, e.g., Ann Southworth, Taking the Lawyer out of Progressive Lawyering, 46

TAN

. L. R

. 213 (1993). Seasoned rebellious practitioners face similarly inaccurate and

dismissive portrayals of their vision of lawyering. See, e.g., Ford, supra note 8; Carpenter,

supra note 8.

In Appreciating Collaborative Lawyering, Ascanio Piomelli eviscerates various at-

tacks on the rebellious vision, principally by demonstrating the recurring use of demonstra-

bly inaccurate and wholly fabricated characterizations. See Piomelli, Appreciating, supra

note 8. Some wonder how these very attacks continue to be cited as formulating legitimate

questions—especially within the lawyering and clinical literatures—without even a men-

tion of Piomelli’s comprehensive exposure of the unreliability (yes, the “fake news” qual-

ity) of this sort of scholarship, raising questions from how well scholars read to how

responsibly they cite to how much they may consciously evade the racial dimensions per-

vading the debate between defenders of the regnant vision and proponents of the rebel-

lious. See G´omez, supra note 8.

For a meticulous expos ´e of the various ways client-centered practice can and should

be understood, see Piomelli, supra note 4. Piomelli’s article deserves to join Ann Shalleck’s

Constructions of the Client Within Legal Education, supra note 8, as a classic must-read for

all law students and lawyers.

See Piomelli, Democratic Roots, supra note 8.

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282 CLINICAL LAW REVIEW [Vol. 24:247

Let one encounter, from decades back, stand in for the thousands

of stories I could tell. In a room filled with generous donors and

would-be donors, a team of law students and I, at the invitation of the

Office of Alumni Development, described the vision of lawyering that

shaped our work in the Community Outreach, Education, and Or-

ganizing Clinic and the training some of us collectively offered inter-

ested law students. Almost immediately after hearing our description,

perhaps even interrupting our depiction, several prominent alumni,

including very well-known elected statewide Democratic officials,

challenged our vision.

They regarded the work we did as wildly beneath and beyond

what lawyers should do—and how law students should be taught. Es-

pecially because we regarded their particular lines of attack as shallow

and ill-conceived, and probably because they could not have been

more arrogant, we hit back hard. We let them and the rest of the

packed room know the brand of regnant lawyering they practiced—

and offered a poor and shallow defense of—amounted to precisely

what we meant openly to reject as dead wrong. As the exchange grew

more extended and biting, and after nearly an hour of debate, the

Alumni Development staffers standing at the back of the room began

giving me various versions of “enough, enough, enough” signals. We

still had plenty more to say, but these fundraisers were good and hard-

working people. So I started to wrap up.

Only a few seconds into my short closing riff, I could see to my

right a hand suddenly fly into the air. Though looking front and

center, and never directly near where the person was sitting, I was

confident whose hand I was seeing. Perhaps I would have considered

finishing, but everyone in the room was already staring with a mix of

glee and awe at the man with his hand raised. They did because he

was very well known. And he was very well known because he had

founded one of the country’s most famous law firms, because he was

the richest person (perhaps by far) in the room, and because he was

renowned for being wickedly smart and fiercely independent.

Okay, I said to myself, let Charlie Munger have at us too. We’ll

listen carefully to what he offers. Whatever he says will be formidable,

doubtlessly requiring us to up our game, especially after dealing too

much with the blather of the elected Democratic official and his allies.

If the room has to get hotter still, let it be—and I’ll apologize later to

my fundraising friends. I stopped my closing rap in mid-sentence,

turned to my right, and said “Yes?” As the verbatim notes others took

and later shared with me confirmed, here’s what Charlie Munger said:

The good professor and his wonderful students have been describ-

ing and defending a vision of law practice completely consistent

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Spring 2018] Transform Legal Education 283

with what I have always sought to achieve in my work with clients.

Many here in this room find that vision incoherent, wrong, or both

incoherent and wrong. That means either I too for many years have

been going about my work all wrong or that this way of practicing is

a perfectly defensible way for me to pursue with my wealthy clients

and an utterly indefensible way for the good professor and his stu-

dents to work with low-income clients. So . . . (pausing to scan the

room) . . . which is it? Do I not know how to practice? Or is the

vision of practice I share with the good professor and his students

only for working with the wealthy and well-educated and not for

working with anyone else?

The room had fallen silent and felt motionless. I consciously waited a

long time.

“On that note,” I then said, “we’ll close. Thank you.”

F. Lawyers As Experts—Experts Differently Conceived

Of course lawyers can be experts, valuable experts, just as soil

engineers and choreographers and Regina Austin’s “bridge people”

in the Black Community can be. And if carefully studied, we can dis-

cern definable and teachable and learnable ideas, skills, and sensibili-

ties on display in the varied problem-solving roles we ask lawyers to

fill, just as we can if we scrutinize the problem-solving practices of

expert soil engineers, choreographers, and organic neighborhood

peacemakers.

Those ideas, skills, and sensibilities will inevitably re-

flect and influence the organizations, institutions, and systems in

which lawyers and others do their work. We can and should abstract

how problem solving works. We can and should do so, at various level

of generalization, precisely as part of a healthy problem-solving prac-

tice, always as parsimoniously and only as parsimoniously as life’s

complexities and trial-and-error can achieve, always open to

revision.

See Regina Austin, “The Black Community,” Its Lawbreakers, and a Politics of Iden-

tification, 65 S

. C

ALIF

. L. R

. 1769 (1992).

For only a few illustrations, a while back and more recently, of the study of the path

from novice to expertise that crosses disciplinary and professional boundaries, see William

G. Chase & Herbert A. Simon, Perception in Chess, 4 C

OGNITIVE

SYCHOL

. 55 (1973); K.

Anders Ericsson, Ralf Th. Krampe, & Clemens Tesch-Romer, The Role of Deliberate Prac-

tice in the Acquisition of Expert Performance,100 P

SYCH

. 363 (1993).

For one elegant depiction of the parsimony we seek in our depictions of problem

solving, across roles and institutions and cultures, see Herbert A. Simon, Science Seeks

Parsimony, Not Simplicity: Searching for Pattern in Phenomena, in S

IMPLICITY

, I

NFER-

ENCE

AND

ODELING

: K

EEPING IT

OPHISTICATEDLY

IMPLE

(Arnold Zellner, Hugo A.

Keuzenkamp & Michael McAleer eds., 2002). Yet the insistence on “parsimony” as a way

to defend, say, neo-classical economics against the thrust of behavioral economics amounts

to a denial of the need to face realities. See, e.g., Cass R. Sunstein, Chrstine Jolls & Richard

H. Thayler, A Behavorial Approach to Law and Economics, 50 S

TAN

. L. R

. 1471

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284 CLINICAL LAW REVIEW [Vol. 24:247

Yet we must remember productive problem solvers thoroughly—

yes, sensually—familiarize themselves with local and global cultures.

To be any good at all, they must in order to appreciate how people

make things happen and get things done. And they adapt to these

cultures, as they must, even to be understood. They adapt (or at least

can appear to) even and sometimes especially when they aim to dis-

pute or even defy local and global cultures. Adaptations and abstrac-

tions operate in tandem to permit us to generate a theory of problem-

solving practice grounded in and having a chance to improve everyday

conditions. The same adaptations and abstractions operate in tandem

to permit us to generate a problem-solving practice for how we might

constructively generate theories of all sorts, grounded in and having a

chance to improve everyday conditions. Even for those of us (unlike

Marx and MLK) who do not know how it will all turn out, the point is

to change life as we know it.

G. Mapping Reality

To define and to teach the problem solving at the heart of all

lawyering, we must map the deep background rules, the operative

conventions, and the customary rhetoric pervading and defining each

and every realm lawyers may enter, may evade, may work across. In

drawing this sheet of the world, attention naturally focuses on legal

organizations, legal institutions, and legal systems. That includes, to be

sure, charting and grasping the patterns of categories, stories, and ar-

guments discernable within judicial opinions, within and cross doctri-

nal boundaries.

And plotting and producing the legal analysis

(1997–98).

Of course I paraphrase here Marx and Engels’ assertion, in their Theses on Feuer-

bach, that “[t]he philosophers have only interpreted the world, in various ways; the point is

to change it.” Karl Marx & Friedrich Engels, Theses on Feuerbach, in B

ASIC

RITINGS ON

OLITICS AND

HILOSOPHY

243, 245 (Lewis F. Feuer ed., Anchor Books 1959) (1888). And

I allude to Martin Luther King, Jr.’s conviction that “the arc of the moral universe is long,

but it bends toward justice.” Martin Luther King, Jr., Address to the Southern Christian

Leadership Conference: Where Do We Go from Here? (Aug. 16, 1967), http://kingencyclo

pedia.stanford.edu/encyclopedia/documentsentry/where_do_we_go_from_here_delivered_

at_the_11th_annual_sclc_convention.1.html.

For kindred approaches to this teaching and learning of stocks of categories, stories,

and arguments, see, e.g., Gerald P. L ´opez, Lay Lawyering, 32 UCLA L. R

. 1 (1984);

Frank I. Michelman, Justification (and Justifiability) of Law in a Contradictory World, in

OMOS

XXVIII Justification 71 (J. Roland Pennock & John W. Chapman eds., 1986);

Duncan Kennedy, Freedom and Constraint in Adjudication: A Critical Phenomenology, 36

J. L

EGAL

DUC

. 518 (1986); James Boyle, The Anatomy of a Torts Class, 34 A

. U. L.

. 1003 (1985); Jack Balkin, The Crystalline Structure of Legal Thought, 39 R

UTGERS

. 1 (1986); Jeremy Paul, A Bedtime Story, 74 V

. L. R

. 915 (1988); A

NTHONY

MSTERDAM

& J

EROME

RUNER

, M

INDING THE

(2000); Ty Alper, Anthony G. Am-

sterdam, Todd E. Edelman, Randy Hertz, Rachel Shapiro Janger, Jennifer McAllister-Nev-

ins, Sonya Rudenstine & Robin Walker-Sterling, Stories Told and Untold: Lawyering

\\jciprod01\productn\N\NYC\24-2\NYC203.txt unknown Seq: 39 15-MAR-18 13:48

Spring 2018] Transform Legal Education 285

emblematic of opinion letters, internal memoranda, trial and appellate

briefs.

Yet just as everything operates “in the shadow of the law,” every-

thing legal operates in the shadow of the political, economic, social,

and cultural.

Each of these realms defines the others, inevitably and

thoroughly. To know how to think about and train lawyers as problem

solvers we must always focus upon describing explicitly, studying rou-

tinely, and tracking the changing nature of mutually defining realms

(everything “non-legal” and everything “legal”), then returning to see

how the explicit description perhaps should be amended. There is no

other way to be ambitious, creative, rigorous, and effective—as prob-

lem solvers, as trainers of problem solvers, as problem-solvers-in-

training.

If we should unite practice and theory into a theory of practice

and a practice of theorizing, if we should do so necessarily through the

intermingling of particular adaptations and abstracted representa-

tions, if we should do so through a true-to-life portrayal of the inti-

mately and mutually defining relationship between the legal, political,

economic, social, and cultural realms, then we should recognize, we

must recognize, we’re inevitably working with power. The problem

solving at the heart of all lawyering inevitably responds to and deploys

power. In this important sense, there is no such thing as a “safe

place”—only more-secure-than-not, only safe-enough-to-try-out.

Power—the capacity to make things the way we want them—per-

vades our lives.

Through and in “big structures,” through and in

Theory Analyses of the First Rodney King Assault Trial, 12 C

LIN

. L. R

. 1 (2005); Gerald

P. L ´opez, Rebellious Theory, supra note 7. In legal literature, the precursor and contribu-

tor to these kindred approaches is Llewellyn, supra note 7.

In law school teaching of the legal analysis produced by lawyers, perhaps the most

ignored—and most inexplicably snubbed—are opinion letters. For a classic source, which I

have drawn upon extensively in teaching transaction clinics and offering legal analysis

workshops, see D

ONALD

W. G

LAZER

, S

COTT

ITZGIBBON

& S

TEVEN

O. W

EISE

, G

LAZER

AND

ITZGIBBON ON

EGAL

PINIONS

: D

RAFTING

, I

NTERPRETING

AND

UPPORTING

LOSING

PINIONS IN

USINESS

RANSACTIONS

(2008).

For the modern source of the formulation “bargaining in the shadow of the law,” see,

for example, Robert N. Mnookin & Lewis Kornhauser, Bargaining in the Shadow of the

Law: The Case of Divorce, 88 Y

ALE

L. J. 950 (1979); Robert Cooter, Stephen Marks

&Robert Mnookin, Bargaining in the Shadow of the Law: A Testable Model of Strategic

Behavior, 11 J. L

EGAL

TUD

. 225 (1982).

For just some of the many accounts of power influencing this vision of problem solv-

ing and of training problem solvers, see, e.g., Piomelli, Foucault’s Approach, supra note 8;

Lucie White, Subordination, Rhetorical Survival Skills, and Sunday Shoes: Notes on the

Hearing of Mrs. G., 38 B

UFF

. L. R

. 1 (1990); Steven L. Winter, The “Power” Thing, 82

. L. R

. 721 (1996); Richard L. Abel, Speaking Law to Power: Occasions for Cause

Lawyering, in C

AUSE

AWYERING

: P

OLITICAL

OMMITMENTS AND

ROFESSIONAL

E-

SPONSIBILITIES

(Austin Sarat & Stuart Scheingold eds., 1998).

For just some of my own work exploring and demonstrating how power works, see

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286 CLINICAL LAW REVIEW [Vol. 24:247

“micro-practices,” through and in everything in between and beyond.

We all exercise power all the time—in friendly, in hostile, and in un-

certain circumstances, through our problem solving, our love, our jeal-

ousy, our everything. Much as some exercise far more power than

others, we all put power into effect. We’re all enmeshed within power

strategies (yes, including those of our own creation). Power involves

us, and we involve power. And our problem solving inescapably ex-

presses that we’re “involved.”

There’s nothing inherently bad and nothing inherently good

about power. Yet many appear to regard its presence as somehow es-

capable—or at least want to so insist. Some regard the essence of

power as the antithesis of empathy—treating the two as mutually ex-

clusive. Empathy, in this view, is presumed to be a benign communi-

tarian building block of a just society—a society where power can be

elided, discarded, disregarded. Power permits and encourages merci-

less, unfeeling fights, pitting one individual or group against others,

aiming to monopolize clout when dealing with the complexities of

everyday life. Sometimes the result is a benign paternalism, and some-

times the disregard for the plight of others.

Schematic distinctions between power and empathy that pretend

to banish power from the good society are no more persuasive that

the equally wrong-headed thinking of some within the Center-Left.

This branch, for example, appears to regard the very concept of

“problem solving” as necessarily claiming lawyering lies outside of

e.g., L

OPEZ

, R

EBELLOUS

AWYERING

supra note 8; Gerald P. L ´opez, Don’t We Like Them

Illegal?, 45 U.C. D

AVIS

L. R

. 1711 (2012). These publications in turn sometimes rely

upon and often parallel a range of people who illuminate the nature and workings of

power. See, e.g., M

ARY

OLLSTONECRAFT

, M

ARIA

, T

RONGS OF

OMAN

(1798);

Anna Lætitia Barbauld, Washing Day (1797), https://www.poetryfoundation.org/poems/

51901/washing-day (last visited Feb. 2, 2018); K

ARL

ARX

, T

IGHTEENTH

RUMAIRE

OUIS

APOLEON

(1852); F

RIEDRICH

W. N

IETZSCHE

, T

ILL TO

OWER

(Walter

Kaufmann & R.J. Hollingdale trans., Walter Kaufmann ed., 1967) (1901); R

UDOLF VON

HERING

, L

AW AS A

EANS TO AN

(1913); S

IMONE DE

EAUVOIR

, T

ECOND

(H. M. Parshley ed. & trans., 1960)(1949); J

AMES

ALDWIN

, T

IRST

EXT

IME

(1962);

WAME

URE

(formerly known as S

TOKELY

ARMICHAEL

) & C

HARLES

V. H

AMILTON

LACK

OWER

—T

OLITICS OF

IBERATION

(1967); E

DNA

O’B

RIEN

, N

IGHT

(1972);

ICHEL

OUCAULT

, D

ISCIPLINE

& P

UNISH

– T

IRTH OF THE

RISON

(1972); E. P.

HOMPSON

, W

HIGS AND HUNTERS

THE ORIGINS OF THE

LACK

(1975); J

OHN

AVENTA

, P

OWER AND

OWERLESSNESS

: Q

UIESCENCE AND

EBELLION IN AN

PPALACH-

IAN

ALLEY

(1980); G

LORIA

NZALD

, B

ORDERLANDS

RONTERA

: T

ES-

TIZA

(1987); J

ALEY

, T

OWER

ACTICS OF

ESUS

HRIST AND

THER

SSAYS

(1989); J

UDITH

UTLER

, G

ENDER

ROUBLE

: F

EMINISM AND THE

UBVERSION OF

DENTITY

(1990); Dale Minami, Guerilla War at UCLA: Political and Legal Dimensions of the Tenure

Battle, 16 A

MERASIA

J. 1 (1990); D

UNCAN

ENNEDY

, S

EXY

RESSING

. – E

SSAYS ON

THE POWER AND

OLITICS OF

ULTURAL

DENTITY

(1993); K

ATHA

OLLITT

, PRO: R

E-

CLAIMING

BORTION

IGHTS

(2014).

For an illuminating account of empathy as understood within the rebellious vision,

see Montes, supra note 8.

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Spring 2018] Transform Legal Education 287

power. Perhaps these critics have in mind some avowedly “apolitical”

technocrats insisting professional judgment somehow operates above

raw force. But these Center Left critics are as wrong as the apolitical

technocrats. Technocrats can pretend all they want, and yet no one

should indulge them, including those on the Center Left, by insisting

“problem solving” can or should be understood as anything but an

exercise of power strategies.

Meanwhile, in some eras, and perhaps across millennia, a strand

of sweet-hearted dreamers would like to think we could gain power

and then banish it forever.

But that’s neither true nor even in any

utopian sense obviously desirable. We created our social arrange-

ments through power, and through power we can revolutionize them.

History tells us that won’t be easy, indeed will likely be incredibly

hard; but nobody can tell us we cannot try, over and over again.

No less than social, cultural, economic, and political systems, the

legal system legitimates and reinforces inequalities in coercive power.

Government action and inaction does not “interject coercion into our

world but rather (re)distributes the coercion that unavoidably inheres

in any system of private property.”

Most can readily see coercion in,

for example, slavery and Jim Crow. Many can openly acknowledge

coercion and unequal distribution in the White Nationalism and mis-

ogyny pervading 2018, perhaps even understand them as our historical

and contemporary norms (racism and sexism “livewired” into our na-

tional spirit, endemic and not exceptional, dynamically interacting

with classism, homophobia, and still more).

And most, across politi-

cal divides, appreciate and celebrate coercion driving criminal and im-

migration law.

But coercion asserts itself throughout the legal system. The very

ideas of freedom of contract and free markets, expressed in brazenly

absolute terms, aim to deny or at least hide that, from the outset, we

have baked into the legal system a natural-looking disparity in coer-

In ending his unpublished Notes of an Oppositionist, Duncan Kennedy writes

“Maybe you will win power, and then abolish it.” Duncan Kennedy, Notes of an Opposi-

tionist in Academic Politics (1980) (unpublished manuscript, on file with author).

See generally Louis Menand, Karl Marx: Yesterday and Today,

THE

ORKER

(Oct. 10, 2016) (“We invented our social arrangements; we can alter them when they are

working against us. There are no gods out there to strike us dead if we do.”).

So declares Ian Ayres, in his typically lucidly penetrating style, describing Robert

Hale’s contributions. Ian Ayres, Discrediting the Free Market, 66 U. C

. L. R

. 273, 275

(1999).

For several examples of a large literature exploring how everyday life in the U.S.

actually works, sanctioned by law, see Devon W. Carbado, From Stopping Black People to

Killing Black People: The Fourth Amendment Pathways to Police Violence, 105 C

. L.

. 125 (2017); Devon W. Carbado & Cheryl I. Harris, Undocumented Criminal Proce-

dure, 58 UCLA L. R

.1543 (2011); Noah D. Zatz, Disparate Impact and the Unity of

Equality Law, 96 B.U. L. R

. 1357 (2017).

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288 CLINICAL LAW REVIEW [Vol. 24:247

cive power, permitting some of us to foist upon others “freely ne-

gotiated” relationships with predictably varied distributive conse-

quences.

That’s true of trade agreements between the United States

and Mexico, of confidentiality provisions in the entertainment indus-

try, of mandatory mediation clauses between sellers and consumers, of

standardized leases between landlords and tenants.

In the face of top-flight challenges to the very use of terms like

freedom of contract and free markets, propagandists respond to such

“seditious attacks” by trotting out ready-made back-up definitions,

amounting to “no one ever really means ‘free’ in the literal sense.”

(Some libertarian economists so insist, time and again, in the face of

insights offered, say, by modern behavioralists.

) In the press of eve-

ryday life, though, these concessions go back into hiding, not to be

trotted out again unless, yes, forced out by persevering critics. When

promoting as “free” an ideologically and materially tilted legal system,

we promote as decent and fair a realm that we know to be deeply

predisposed in its architecture and content.

Thoroughly systemic bias certainly helps explain why, for exam-

ple, large swaths of low-income, of color, and immigrant women rou-

tinely avoid affirmatively engaging legislative, judicial, and

administrative procedures.

Even more particularly, more than other

groups, these women most often refrain from converting righteous

grievances into legal disputes. Rather than hold accountable those in-

dividuals who have injured them, those institutions that have harmed

them, they feel coerced to “lump it.” Why sue? They’d have to find a

At the heart of E. P. Thompson’s Whigs and Hunters lie detailed historical accounts

of this phenomena, upsetting people across the ideological spectrum. See Nancy Lee Pe-

luso, Agrarian Classics Review Series, 44 J. P

EASANT

TUD

. 309 (2017) (reviewing T

HOMP-

SON

, supra note 22).

Certainly Robert Hale’s work was regarded by many as seditious in this strong sense.

See, e.g., B

ARBARA

H. F

RIED

, T

ROGRESSIVE

SSAULT ON

AISSEZ

-F

AIRE

: R

OBERT

ALE AND THE

IRST

AW AND

CONOMICS

OVEMENT

(1998). Hale’s emphasis on the

inescapable presence of coercive power and the government’s inevitable role in its distribu-

tion ought repeatedly be emphasized in 2018—as much in scholarly literature as in every-

day conversation. See Robert L. Hale, Coercion and Distribution in a Supposedly Non-

Coercive State, 38 P

. S

. Q. 470 (1923); Robert L. Hale, Bargaining, Duress, and Eco-

nomic Liberty, 43 C

OLUM

. L. R

. 603 (1943).

For an exchange along some of these fronts, see Richard A. Epstein, Behavioral

Economics: Human Errors and Market Corrections, 73 U. C

. L. R

. 111 (2006). For a

sample response by thoughtful behavioral economists, see Oren Bar-Gill, Exchange—The

Behavioral Economics of Consumer Contracts, 92 M

INN

. L. R

. 749 (2008).

See Gerald P. L ´opez, The Work We Know So Little About, 42 S

TAN

. L. R

. 1

(1989). For early and influential explorations of these dynamics, see K

RISTIN

UMILLER

IVIL

IGHTS

OCIETY

: T

OCIAL

ONSTRUCTION OF

ICTIMS

(1988); William L.F.

Felstiner, Richard L. Abel & Austin Sarat, The Emergence and Transformation of Dis-

putes: Naming, Blaming, Claiming, 15 L

& S

’

. 631 (1980–81); Stephen C.

Yeazell, Convention, Fiction, and Law, 13 N

ITERARY

IST

. 89 (1982).

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Spring 2018] Transform Legal Education 289

solid lawyer, no small matter. And even if the lawyer were awfully

good, they would encounter on the other side and on the bench their

social superiors, with unfathomably great resources, including the

built-in biases in favor of those who most often discriminate (employ-

ers, lenders, sellers).

Anyway, these women insist, even with a good lawyer, all the

treacherous effort wouldn’t likely make any difference. Indeed, it

might even worsen circumstances. They feel humiliation, of course.

Instead of choosing to fight with all their might, through all available

arenas, including law, they come off to everyone, perhaps even them-

selves, as acquiescing in the practices and policies that left them in-

jured. Yet, for all the contradictory nature of the question, for all their

shifts in viewpoints, they perceive their decision to avoid the legal sys-

tem as at least protecting their limited capacity to cope. They’re left

no worse off in dealing with the realities of difficult and even harsh

lives. Candid recognition of the ideological tilt of the legal system

feels, what, sensible. Why be a chump, a dupe, a sucker? Why be twice

a victim, initially to the injurer and then to the largely false promises

of equal treatment? Facing the truth of life in the United States, espe-

cially through and in law, feels awful and wise.

Worse yet, even those who do choose formally to fight often end

up inadvertently being co-opted and sometimes left less able than

ever. Disputes get altered from ones that challenge basic assumptions

driving institutional and interpersonal inequities into fights that most

likely will lead, at best, to marginally redistributive and modestly re-

formist results. Usually hidden from those who challenge their subor-

dination, as befits the subterranean way power can operate, the

categories, stories, and arguments that conventions “permit” those

who formally fight to employ—the legitimated strategies and tactics—

typically strengthen the systems that ensnare them. Rather than ques-

tioning fundamental cultures of inequality, they “resist” from within

those frameworks, reproducing them even when they now and then

“win” battles. Law circumscribes most (not all) fights we experience

and witness in ways meant to insulate the status-quo—celebrating as

“transformative” the tinkering at the heart of the status-quo-plus

changes.

Now and then, though, we experience a revolution-in-the-mak-

ing. Or at least all the bravery, intelligence, and perseverance embod-

ied in an uprising that stands a real chance of fundamentally altering

systems, institutions, cultures. #MeToo rebels against all expressions

of misogyny. Remarkable women have taken on—to offer just some

examples—the movie industry, the television industry, federal and

state and local governments, the federal judiciary, the music industry,

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290 CLINICAL LAW REVIEW [Vol. 24:247

and Silicon Valley. They knew they would get bashed. Indeed, many

had been bashed before, with their professional and personal lives

targeted and often devastated. And yet, like other great whistle-blow-

ers, they keep speaking out, and they have provoked action perhaps

only a small number believed they would ever achieve.

Consider, most specifically, the remarkable women and girls who,

together with some of their families and friends, let the world know

what Dr. Lawrence G. Nassar did to them.

They understood they

would lose their privacy, some friends, their faith communities. They

knew they would likely be disbelieved by most, would be ostracized

by still more, and would be patronized by others still. Yet, with the

open-hearted support of Judge Rosemary Aquilina, they translated

their horrifying pain into an effective campaign against Nassar, Michi-

gan State University, and U.S.A. Gymnastics. And they aimed their

claims at enablers of virtually every sort: coaches, university and

Olympic officials, health professionals, administrative personnel. They

not only comprehend how misogyny works, but have chosen to fight it

in ways that Simone de Beauvoir envisioned.

We have yet to learn the details of how so many (institutions and

individuals) granted Nassar permission to continue doing what he had

been doing to girls for at least thirty years. Even as the #MeToo move-

ment continues to unfold, we have yet to focus the time and energy we

should on the experiences of low-income, of color, and immigrant

women and girls. We have yet to discover whether the sought-after

transformations will be as deep and as lasting as misogynistic evil re-

quires. But we do know everyday people can make explicit and con-

front seemingly unchallengeable inequalities in coercive power

(social, cultural, economic, political, and legal systems overlapping

The foundational literature about sexual harassment remains vital today. To take

only two very important examples, see Sarah E. Burns, Engendered Change: Review of

Belos’ and Fellows’ Law and Violence Against Women, 1 C

LIN

. L. R

. 665 (1995); Sarah

E. Burns, Evidence of a Sexually Hostile Workplace: What Is It and How Should It Be

Assessed After Harris v. Forklift Systems, Inc.?, 21 N.Y.U. R

. L. & S

HANGE

357

(1995); Sarah E. Burns, Is the Law Male? The Role of Experts, 69 C

.-K

ENT

L. R

. 389

(1994); Sarah E. Burns, Issues in Workplace Sexual Harassment Law and Related Social

Science Research, 51 J. S

. I

SSUES

193 (1995); C

ATHARINE

A. M

INNON

, F

EMINISM

NMODIFIED

: D

ISCOURSES ON

IFE AND

(1987); C

ATHARINE

A. M

INNON

, S

EX-

UAL

ARASSMENT OF

ORKING

OMEN

: A C

ASE OF

ISCRIMINATION

(1979); C

ATH-

ARINE

A. M

INNON

, T

OWARD A

EMINIST

HEORY OF THE

TATE

(1989).

Among the many illuminating accounts now available, reading Rachael Denhol-

lander’s full testimony before Judge Aquilina remains a must. Read Rachael Denhol-

lander’s Full Victim Impact Statement about Larry Nassar, CNN.

COM

(Jan. 30, 2018, 7:34

AM), http://www.cnn.com/2018/01/24/us/rachael-denhollander-full-statement/index.html?sr

=fbCNN012418rachael-denhollander-full-statement0600PMVODtop.

Rereading all of de Beauvoir’s work remains a stunning experience, obviously start-

ing and ending with

EAUVOIR

, supra note 22.

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Spring 2018] Transform Legal Education 291

and reinforcing one another). And we have learned yet again, in case

we had come to doubt, that humans can shine a light on the concealed

and denied and rationalized. And perhaps, just perhaps, can change it.

The legal system obscures its exercise of coercive power in still

other ways. Sovereigns operate their legal regimes—and the U.S and

Mexico have long run their legal and illegal immigration systems—

through prohibitions and permissions. Together, prohibitions and per-

missions establish the framework of ground rules through which law

processes disputes, influences behavior, and distributes power.

Prohibitions are by far the easier to spot and to experience as law.

Permissions prove far more elusive to pick out and to comprehend. To

coordinate the mass influx of undocumented Mexicans into the

United States, especially in the interest of U.S. employers and the do-

mestic economies of both countries, the U.S. and Mexico combine

prohibitions and permissions to accomplish whatever they most want.

Over the course of modern history, they have aimed to appear to have

played no active role in large flows of undocumented Mexican labor

and pivotal roles in the deportation of and creation of opportunities

“at home” for Mexican migrants.

Recognize, though, the deployment of coercive power. The U.S.

could prohibit employers from hiring undocumented immigrants,

landlords from renting to them, and grocers from selling them food.

But instead—at least so far, one year into the regime of the 45th U.S.

president—it decides to permit (“legally privilege” by not prohibiting)

these relationships and transactions and huge numbers of others like

them. Lawmakers appear to be doing nothing when they resist de-

mands to prohibit these relationships and transactions, and many ex-

perience law as having nothing to do with these results. Savvy

participants in (and astute observers of) the legal regime know better,

however. These permissions are not inadvertent gaps but choices by

lawmakers to let employers, landlords, and grocers—and, not coinci-

dentally, undocumented immigrants—do what they must in order for

illegal and legal migration to serve the mutual needs of the U.S. and

My own thinking (as teacher, lawyer, scholar) and this passage draw directly upon a

series of superb insights, made and extended, resurrected and strengthened, in the scholar-

ship of Wesley Hohfeld and Robert Hale and Arthur Corbin and the too-often-ignored

work by Joseph Singer and Duncan Kennedy. See Duncan Kennedy, The Stakes of Law:

Or Hale and Foucault!, 15 L

EGAL

TUD

. F

ORUM

4 (1991); Joseph William Singer, Legal

Realism Now, 40 C

ALIF

. L. R

. 465 (1988); Joseph William Singer, The Legal Rights De-

bate in Analytical Jurisprudence from Bentham to Hohfeld, 1982 W

. L. R

. 975; Arthur

Corbin, Jural Relations and Their Classification, 30 Y

ALE

L.J. 226 (1920-21); Robert Hale,

Force and the State: A Comparison of “Political” and “Economic” Compulsion, 35 C

OLUM

L. R

. 149 (1935); Wesley Hohfeld, Some Fundamental Legal Conceptions as Applied in

Judicial Reasoning, 23 Y

ALE

L.J. 16 (1913). For an elaboration of this point, see L ´opez,

supra note 22.

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292 CLINICAL LAW REVIEW [Vol. 24:247

Mexico. The law is no less involved, and coercive power no less exer-

cised, when it creates ground rules of permission rather than of

prohibition.

H. Cross-Cutting Capacities At The Heart Of The Problem Solving

All Lawyers Pursue

In the course of challenging how law schools had long defined

ambitious, rigorous, and effective education, especially as a product of

close study of a wide range of wonderful practitioners, the best of

modern clinical programs perceived three slates of cross-cutting ca-

pacities at the heart of the problem solving all lawyers pursue. Or at

least that’s how I characterize everything I’ve seen, read, and done

with others since the 1970s. A rich illustration of each capacity would

consume many pages. And the training already developed deserves

extended coverage. For now, I must be content to present the capaci-

ties and pr ´ecised explanations.

Even to those who pay little attention, these capacities should

feel familiar because they are facets of our everyday navigation sys-

tem. Together, they explain how we make our way around in the

world. We’re endlessly dealing with situations, tiny to huge, always

evolving, that require us to define and address problems. So routinely

is this true, so much of our lives occupied by problems we already

know how to address, that most of what we do happens “automati-

cally.” We need not give huge amounts of conscious thought to the

dynamics—at least if we so choose. We need not if we don’t care

enough about getting better at what we do routinely. And many may

not.

For lawyers, though, that’s an unacceptable “luxury.” Especially

when our job (across roles) is to help others chart the future, find a

clear path, avoid obstacles, deal as well as possible with troubles, cut

losses, regroup and keep moving, and face catastrophes, we cannot

ever accept that what we know is enough. We can and should continu-

ously enhance our navigational abilities: to deal with recurring pat-

terns, to deal with frightening and dangerous and uncertain futures,

and to prepare (as best we can) for the unexpected.

1. Every Superb Lawyer Demonstrates The Capacity To Observe

Closely, Listen Attentively, And Size Up A Situation Well.

In order to cope, in order to thrive, we work to understand our

circumstances. And, typically, in order to survive we do something in

response to our understanding. That helps explain the enormous con-

tribution made by our stock meaning-making structures. Almost in-

stantaneously, our stock categories, stories, and arguments help us to

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Spring 2018] Transform Legal Education 293

give a situation a meaning and a menu of things we can do. If we

perceive threat, we sense the need to flee. Feelings and thinking inter-

sect. Off we may go.

Of course, almost without consciousness, we may double-check

our interpretation. Upon another scan or inspection, we may decide

we face no threat. Either there’s no threat at all or the threat appears

obviously aimed at someone or something else. Again, all this can

happen so quickly, we don’t much think about how we initially sized

up the situation only then to reinterpret the surroundings. Yet we do

this all the time, and often so rapidly, we rarely take the time to mull

over, perhaps even describe “what just happened.”

Teachers and students come to law school with a lifetime’s experi-

ence sizing up situations. They may not think consciously about the

process of appraisal, much less about their capacity to observe closely

and listen attentively. And they may not realize each lifetime’s worth

teaches us different and perhaps very different things. Context mat-

ters; culture matters. So too do our varied inclinations to make much

or not so much of a lifetime’s experience. When it comes to our capac-

ity to closely observe, attentively listen, and ably size up, some of us

may be spectacularly good, and some of us spectacularly bad. And

most of us may fall into a fairly densely occupied domain we might

label more or less average.

Where we rank may not matter to many of us. But in certain lines

of work, knowing how good we are—or at least how good others per-

ceive us to be at observing, listening, and sizing up—counts hugely. As

part of a string quartet, a violinist needs to be good and to get better

and better if he’s to join the ranks of accomplished musicians. How-

ever well we know the Haydn score, we play with others and our ca-

pacity to observe, listen, and size up what’s unfolding as the score

unfolds makes all the difference in the quality of our performance. As

a spy, smuggling information from Germans occupying France to the

British about the development of V-1 and V-2 rockets during World

War II, we better listen, observe, and size up brilliantly or we fail our

mission, endanger other members of the resistance, and risk death.

No less than violinists in string quartets and spies for the Resis-

tance fighting Nazi Germany, lawyers should be understood as need-

ing to be at least very good if not downright wonderful in observing

closely, listening attentively, and appraising well. Lawyers fill roles

across institutions where, almost daily, we’re expected to collaborate

with others in large part because we are at least tacitly understood to

observe, listen, and appraise well. And we’re expected to do so vigi-

lantly, reinterpreting circumstances to measure the adequacy of our

provisional appraisals, wondering if minor modifications or entire

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294 CLINICAL LAW REVIEW [Vol. 24:247

makeovers may be in order. Every wonderful lawyer I have known

well or seen in action demonstrates these capacities. And it’s utterly

illuminating to collaborate with them, to carefully study them, to com-

prehend all their doing in unfolding stages, never resting in their as-

sessments, even when they’re already acting on a particular

understanding of what’s happening.

For decades, heading back to the very earliest clinical and clinic-

like courses, some teachers understood and emphasized the impor-

tance of observing, listening, and sizing up. And though to my knowl-

edge no published writings amply record the activities, these teachers

studied these capacities, by consuming diverse literatures, through

careful empirical observations, through extended conversations with

others every bit as intrigued. Today, decades later, the best of clinical

legal education has made advances on what earlier cohorts had

achieved. The best clinicians consciously frame work with clients—

and the training a clinic offers—in ways that explicitly aim to build

observation, listening, and appraising chops.

We have many examples from law schools across the country—in

clinics featuring redevelopment plans, sports lawyering, environmen-

tal policies, indigent criminal defense, Know-Your-Rights workshops,

prison litigation, bankruptcy reorganization. Consider just one—an

abbreviated version of a far fuller and thoroughly impressive written

problem description focused on creating meaningful access to clem-

ency, presented to clinic students as part of the initial preparation

materials:

Strategic Advocacy to Guarantee DC Code Offenders

Meaningful Access to Clemency

This project presents an opportunity for students to represent

and advise an expert nonprofit organization focused on the reform of

judicial systems and access to justice in Washington, D.C. The client

organization seeks to design and advocate for the creation of a Clem-

ency Board for the District of Columbia. In nearly every state, of-

fenders can petition the governor for clemency. Yet D.C. Code

Offenders (individuals convicted of violations of D.C. “state” law)—

because of the complex overlay of D.C. and federal laws and sys-

tems—currently have no meaningful access to clemency, which can

only be granted by the President of the United States. Moreover, de-

spite President Obama’s 2014 announcement of new clemency crite-

ria, which sought to address the plight of thousands of offenders

serving long and unjust sentences for non-violent drug crimes, no

D.C. Code Offenders have been represented by the Clemency Project

2014 or granted clemency under the initiative to the best of the client’s

knowledge.

. . .

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The client would like to retain the clinic to create a strategic ad-

vocacy plan for the creation and implementation of a D.C. Clemency

Board, which would give D.C. Code Offenders the same access to

clemency that other state law offenders already enjoy. The project will

involve designing a detailed plan for a Clemency Board for D.C.;

identifying necessary statutory, policy, or practice changes at District

and federal levels and proposing solutions; and advising the client on

how to advocate for implementation of the Clemency Board. Over

the course of the semester, students may grapple with a range of ques-

tions including:

• What are the origins of clemency as a legal/extra-legal tool?

• How are bodies with clemency authority created and consti-

tuted in other jurisdictions?

• What are the criteria for identifying a best practice? What are

the actual best practices of other bodies with clemency

authority?

• Who are the various stakeholders in D.C. on the issue of clem-

ency? How can they be organized and unified to support a

new Clemency Board? What barriers exist for their organiza-

tion and unification?

• How does the lack of access to clemency impact D.C. Code

Offenders, their families, and the District as a whole?

• How can the voices of D.C. Code Offenders be incorporated

into the proposal for a Clemency Board?

• What decision-makers have authority to bring about the neces-

sary statutory or policy changes to implement a Clemency

Board? What would be persuasive to them? What might make

them hesitate to implement such a Board?

• What are potential strategies the client could use to push for

the creation of a Clemency Board? How can the client priori-

tize these strategies?

• How can the client best present the project findings to a range

of audiences?

The experiences of that clinic, like many others, might well be

written up as a full-blown case study. (To my way of thinking, they

should be.) At the heart of such a depiction, we would learn that the

work as planned for the clinic, and the work as it actually unfolded in

real time, relied heavily on interviews of a wide slate of individuals—

individual interviews against the backdrop of the complex dynamics

within and across organizations, institutions, and systems, heightened

by gender, racial, class, and LGBTQ dynamics, to name only some.

For the students, closely observing, attentively listening, and astutely

appraising all the interviews proved, in the words of the clinician,

Daria Fisher Page, Materials for The Community Justice Project Clinic (Fall Term

2016) (on file with author).

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296 CLINICAL LAW REVIEW [Vol. 24:247

“foundational to working with the client to develop the strategic plan

and recommendations the client desired, needed, and requested.”

Imagine all we can learn about observing, listening, and apprais-

ing through ambitiously astute studies of just a tiny cluster of lawyers,

the likes of Damon Agnos, Joaquin Avila, Janese Bechtol, Craig Mar-

tin, David Duchrow, Perla Esquivel, Willard Fraumann, Marlene

Garza, Roger Haber, Colin Cloud Hampson, James (S ´ak ´ej) Young-

blood Henderson, Robert Hirsch, Katie Hurley, Rafiq Kalam Id-Din,

Michael R. Marrinan, Yumari Martinez, John McElroy, Ana Graciela

N´ajera Mendoza, Jaime Mercado, Dale Minami, Ndidi Oriji, Gary

Peck, Darryl A. Piggee, Jeffrey Prieto, Hyeon-Ju Rho, Anne Richard-

son, Luc´ıa S ´anchez, Effie Turnbull Sanders, Dian Keywon Sohn, Mer-

iem Soliman, Vincent Southerland, Janeen Steel, Wendell Y. Tong, A.

Mina Tran, Tsui H. Yee.

Or law school’s bigger classroom teachers, folks like Janet Alex-

ander, Philip G. Alston, Devon Carbado, Peggy Cooper Davis, Steve

Derian, Ingrid Eagly, Patrick Goodman, Jerry Kang, Sung Hui Kim,

Kim Taylor-Thompson, Sherod Thaxton, David Wilkins, C. Keith

Wingate, Pavel Wonsowicz, and Noah Zatz. Or clinicians like Alicia

Alvarez, Sameer Ashar, Alina Ball, Dania L ´opez Beltran, Sarah E.

Burns, Susan Bryant, Patience Crowder, Steve Derian, John Elson,

Craig Futterman, Bill Ong Hing, Paula Galowitz, Carol Izumi, Elliott

Milstein, Michael Pinard, William P. Quigley, Anne Shalleck, Barbara

A. Shatz, Anthony C. Thompson, Lucie White, Jennifer Wright, and

Theresa Zehn.

Imagine all we can learn through terrific studies of a much larger

group still. We have access to eclectically diverse practitioners of ob-

serving, listening, and sizing up: the very best of clients, community

residents, corporate leaders, poets, union officials, craftspeople, arti-

sans, movement leaders, nurses, musicians, dancers, trade negotiators,

epidemiologists, therapists, lawyers in every role, to list just a very

limited number of categories. We should study these practitioners—

study them in serious and sustained ways, through diverse teams pul-

led together to learn all we can. In past years, I’ve been on such teams,

and we have learned lots. We did, in part, because we did not regard

observing, listening, and sizing up, any more than any other aspect of

human feeling and thinking, as “too mysterious” to understand.

Still, most of our past efforts lacked the technological and human

resources that neuroscientists, cognitive psychologists, and jury con-

sultants now routinely employ in such studies. We should employ

these resources too—and all would benefit. We should in part because

Email from Daria Fisher Page, Clinical Associate Professor, University of Iowa Col-

lege of Law, to author (Jan. 29, 2018, 12:08 PST) (on file with author).

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Spring 2018] Transform Legal Education 297

we appreciate more today, perhaps than at any point in the past, how

much the categories of observing, listening, and appraising are com-

plex on their own terms. And we understand that these capacities

both sway and reflect the work of other senses. What we see influ-

ences what we feel, and what we feel shapes what we see. What we

hear is likely to be shaped by other senses and likely to affect how we

subjectively experience circumstances. Appraisals combine emotional

and cognitive interpretations, all often utterly incapable of being dis-

entangled, in ways that strongly suggest the wrong-headedness of both

the hyper-rationality of certain strains of modeling within academic

and professional realms and the polar mistake of regarding emotions

as unaffected by cognitive cueing and processing.

2. Every Superb Lawyer Demonstrates The Capacity To Read

Discerningly, To Write Convincingly, To Speak Effectively.

If only the best of clinicians and non-clinicians explicitly recog-

nize and teach observing, listening, and sizing-up, virtually everyone

inside and outside the legal profession regards reading discerningly,

writing convincingly, and speaking effectively as perhaps at the heart

of what all lawyers do. Given the wide variety of problem solving roles

lawyers fill, that presumption may well be flawed. Many lawyers do

not write much at all. Others read only a small amount and often of

the very same materials. And, at least in public settings, some lawyers

never do any speaking.

Still, in the full-bodied study of problem solving, and in vigor-

ously transformed law schools, reading, writing, and speaking will re-

main imperative to teach resourcefully. Over the decades, the very

best of clinical legal education has helped students to grow better at

reading, writing, and speaking during their law school years and to

grasp how to continue to improve over the course of a career. Borrow-

ing from non-clinicians, practitioners, and teachers and practitioners

in other disciplines and fields, and experimenting with methods and

aims designed to enhance students’ abilities to learn and teachers’

ability to teach, those within the Alternative Vision emphasize the sig-

nificance of reading, writing, and speaking and, as importantly, their

relationship to one another across the roles and institutions in which

lawyers work.

Points of departure matter. The best of clinical legal education

believes law schools ought to train people to read, write, and speak

well. Not read and write and speak only as some narrow band of law-

yers do. Or worse still, not read and write and speak on the false as-

sumption that “lawyers think differently from normal people.” Every

realm of life—including the professional ranks—proves a definable

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298 CLINICAL LAW REVIEW [Vol. 24:247

variation on human problem solving. The assertion that somehow law-

yers are not “normal people” (whatever that means) misunderstands,

well, everything. In the various realms that define our existence, we all

may customize how we address problems (“think”) to suit various de-

mands. But it’s damaging to base an understanding of lawyers or the

training law students need on a mystifyingly wrong-headed

proclamation.

Of course, law students must learn to make meaning with others

as others expect lawyers to make meaning. To pass the bar, to fit

within any particular local legal culture, to produce in ways recogniza-

bly understood as lawyers doing quality work before varied audiences

(the SEC, immigration courts, the United States Patent and Trade-

mark Office). The Alternative Vision embraces this obligation, as

both intellectually and practically vital. Yet it’s every bit as important

to understand that making meaning with others as others expect law-

yers to make meaning is, at its core, not entirely a good thing. In fact,

it can be awful. Taken to extremes, the necessity to learn to make

meaning within the legal culture gets translated into a terrible liability.

Variation interpreted as Discontinuity re-produces Elitism.

But we should remind ourselves, as the best of clinical education

does, that making meaning in particular ways is true of all professions,

trades, crafts, arts, and of the tiniest ecosystem within subcultures

within cultures. That’s how we appear to define ourselves—at once, to

belong and to cut others out. I am absolutely not offering an excuse

for the jargon-laden insider talk many lawyers regularly employ—

much less, the inability to communicate lucidly. Instead, I mean to

emphasize only that what often passes as a pointed put-down of law-

yers and the legal culture ought to be understood as a depiction of

how we variously express ourselves within and across all boundaries.

We’d like to think “they’re doing it and we’re not,” perhaps especially

of privileged classes like lawyers. Yet for every justified critique of

legal rituals and mumbo-jumbo, there’s a cousin critique to be made

about every human grouping. Chastening, to be sure.

Yet law students can learn to make meaning with others as others

expect lawyers to make meaning without insisting law schools should

strangle students into believing “reading for lawyers,” “writing for

lawyers,” “speaking for lawyers” ought be the only sensible aim, much

less the height of intellectual achievement. That suffocating and ener-

vating focus is both empirically inaccurate and prescriptively defec-

tive. Great lawyers must be able to read a wide span of materials,

write in many different ways, and speak to reach variegated audi-

ences. And great training ought to be grounded in those truths and

fashioned to achieve those goals.

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Spring 2018] Transform Legal Education 299

Great teaching and learning must recognize, too, that reading dis-

cerningly, writing convincingly, and speaking effectively are all per-

formances. When I say reading is a performance, I don’t mean merely

or even mainly in the sense of a poetry reading. Instead the ability to

report what a text says and what a text means itself demonstrates

competence or not, special aptitude or not, brilliance or not. The same

is true of writing. Choosing not to write a dissent as a member of a

committee or a judicial panel signals as much as electing to produce a

written dissent. And training to write convincingly means gaining a

command over performing convincing writing. When we think of

speaking, perhaps insisting it’s a performance feels more accurate or

at least more commonplace. What may be less conventionally under-

stood is that speaking effectively is a performance when we say noth-

ing as much as when we say something.

To train optimally to read, write, and speak well requires what

has become for the best of clinicians and non-clinicians a familiar form

of reverse engineering. Exposing students to a wide range of readings,

writing assignments, and speaking performances is a start. But it’s far

from enough. Instead, teachers must simultaneously train students in

what it takes to offer quality interpretations of varied readings, quality

written products in response to assorted assignments, quality speaking

performances tailored to various occasions.

That means “samples” (what other call “models”) must always be

made available. Samples that reveal what every worthy learner and

teacher should be asking: What does quality look like? What does

quality look like in diverse forms? Even that is not enough, though.

Teachers must help students perceive the identifiable patterns in qual-

ity reading, writing, and speaking. How do design and content and

sensibility combine? What features routinely can be identified and la-

beled and reproduced? How do lawyers, teachers, and students learn

to generate desired effects in others through their reading, writing,

and speaking?

This approach to teaching and learning is fundamental in many

realms. Science, music, architecture, linguistics, engineering, surgery,

crafts. Modeling quality, discerning its features, practicing to produce

certain effect is how outstanding teachers teach and excellent students

learn. Learning through experience, at least the only coherently ambi-

tious brands of such an idea, always has imagined helping students to

know what they’re aiming to achieve, how through practice to begin

gaining a command, and how over time to understand how to evaluate

their own progress (and, inevitably, the progress of others). Through

disciplined repetition mixed with imaginative play, students come to

internalize how conventionally to produce quality and how to break

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300 CLINICAL LAW REVIEW [Vol. 24:247

with convention as needed or desired.

In teaching and learning to read discerningly, we can all learn

immensely from those who already employ their own variations of this

method. Take judicial opinions—by far the most focused-upon texts in

traditional legal education. Rather than the scatter-shot techniques

employed in the great majority of law school courses and discussions,

others have offered systematic and replicable ways of reading cases

and reading them as the best lawyers do:

Amsterdam and Bruner employ stock categories, stories, and ar-

guments (from both “inside” and “outside” existing doctrine) to

interpret the interpretations made explicit and left implicit by jus-

tices (and their law clerks) constructing Supreme Court opinions.

Kennedy offers phenomenological accounts of how judges experi-

ence freedom and constraint in making choices in writing opin-

ions and, at the same time, structural explanations of polar

meanings (a method anticipated in law by Llewellyn’s thrusts and

parries and variously paralleled in the deeply orderly reads of

cases offered by Balkin, Bobbitt, Carbado, Harris, Olsen, and

Siegel).

Ball, Burns, Eagly, Francois, Hertz, Howell, Marshall, Morawetz,

Piomelli, Thaxton, and Zatz offer in their clinical and non-clinical

training variations on methodologically rigorous and strategically

insightful strategic reads of “apolitical opinions,” variously

stressing the open-textured relationship between legal, political,

economic, social, and cultural realms.

The same systematic and replicable ways of reading judicial opin-

ions serve every bit as illuminating in teaching students to take on

diverse texts produced by diverse authors (all of which have been

used, together with far more, as part of teaching by those who have

developed the Alternative Vision): E. Abel, R. Abel, Ahern, Alinsky,

Anzaldua, Argyris & Schon, Ayres, Balkin, Bali, Beckert & Rockman,

Bell, Bisharat, Brown, Butler, Carbado, Dalton, de Beauvoir, Delgado

& Stefancic, Desan, Dewey, Dostoevksy, A. Dworkin, R. Dworkin,

Edin, Fadiman, Fallon, Foucault, Gabel, Galeo, G ´omez, Hart & Sachs,

O. W. Holmes, C. Harris, Jolls, Kang, D. Kennedy, R. Kennedy, Law-

rence, Lorde, Michelman, Nietzsche, Olsen, Pitkin, Pollitt, Posner,

Rosaldo, Rose, Sackman-West, Sanger, Schmitt, Schumpeter, Schle-

gel, Shalleck, Simon & Newell, Tarullo, Thaxton, Veblen, Wang, L.

White, Unger, Wang, P. Williams, R. Williams, Zatz.

In teaching and learning to write convincingly, the best of clini-

cians and non-clinicians have employed methods and aims visible in

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Spring 2018] Transform Legal Education 301

teaching and learning to read discerningly. Employing variations on

reverse engineering, samples of quality writing range far outside law-

yering and illustrate diversity within the profession. These samples

permit teachers to help students identify patterns present in various

genres—design, content, and sensibilities combining to produce par-

ticular effects in readers. And these same samples permit students to

more or less replicate those patterns in routinely practicing to gener-

ate quality products within life-like and real constraints.

Student-generated products provide teachers and faculty, in turn,

still more samples to collectively dissect. And as students become

more and more able to produce as conventions mandate, they become

freer to experiment consciously with the various genres they have be-

gun to command. In engaging this dynamic process, students and

teachers imitate what many of history’s greatest writers have done to

aim toward mastery of their craft. Even if unintentionally, they honor

Van Gogh, who, perhaps as much as anyone in history, learned to be

fiercely independent by learning how meticulously to emulate.

Emulating superb opinion letters, briefs, investigative reports,

bankruptcy reorganization plans (and still more) permits students to

begin to understand and reproduce the architecture, content, and af-

fect demanded by other lawyers, clients, and others still. There’s noth-

ing quite like practicing producing judicial opinions to get students to

understand what judges (their law clerks) do daily on the job. There’s

nothing quite like practicing editing of diverse legal documents to

achieve a functional appreciation of how ideas and feelings get most

effectively translated through the written word. In trying on for size

what other lawyers do, in improving documents produced by

respected practitioners, students move toward the “muscle-memory”

they need to develop to produce quality written work within often

less-than-optimal conditions.

But as critical as the lessons gained from first-rate samples pro-

duced by lawyers can be for teaching and learning writing, the samples

employed by clinicians and non-clinicians within the Alternative Vi-

sion range far and wide. Alexie, Arenas, Atwood, Austen, Baldwin,

Balliet, Barnes, Beckett, L. Berlin, Bishop, Blume, Capote, Caro,

Cheever, Cohen, O. K. Davis, Erdrich, Gaitskill, Gates, Greenblatt,

Groopman, Hansberry, K. Harrison, Higgins, Highsmith, Hurston,

Izzo, Karr, Kung, Kushner, LaGuin, Lahiri, Leonard, Lepore, Lis-

pector, Lorde, Luisell, Markell, McGuane, L-M Miranda, Moraga,

Morrison, Munro, Murakami, O’Brien, Nguyen, Remnick, Sacks,

Schulz, Shelley, Smiley, Soto, E. B. White, Woolf, Zhang. Here, as

elsewhere, teachers help students identify patterns, label recurring

features, emulate through routinized practice design, content,

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302 CLINICAL LAW REVIEW [Vol. 24:247

sensibility.

The insights can be as dazzling as the writings themselves. Per-

haps at bottom, though, the most important lesson is the intimate rela-

tionship between disciplined control, leaps of imagination, and

emotional clout. To write convincingly, lawyers must be as able to pro-

duce in readers the experience of neutrality as well as partisanship, of

prudence as well as recklessness, of seriousness as well as playfulness.

That may seem more obvious in some products than in others. But

even ostensibly the dullest and driest document, at least produced by

a master, reflects the conscious rendering of dull and dry. Great writ-

ers know this, inside and outside the legal profession. And in the Al-

ternative Vision, so shall law students.

Speaking effectively is even more ignored and mangled in the

current model of legal education than is writing convincingly. Most

would disagree. They think of conversations in the classroom, various

moot court and negotiation opportunities, and “experiential offer-

ings” as providing ample and even quality training for all law students.

But classroom conversations in the typical Socratic case method

course offer anything but ambitious and sustained training in speaking

(and often amount to the equivalent of an argumentative ambush or a

fill-in-the-blank exercise by a teacher lecturing through fake conversa-

tions). And the training typically provided for diverse learning oppor-

tunities where students do in fact speak proves at best hit-or-miss and,

far too frequently, a strange brew of insubstantial, perfunctory, and

careless.

This same point can be made another way—and often is. New

graduates frequently hear that if you want to feel better about your

ability to speak effectively, sit in for a week or more in any courtroom

in the country. There you’ll find a variety of lawyers on a variety of

matters performing, unintentionally, in tranquilizing and even cringe-

worthy ways. If following this advice makes young lawyers feel better

about themselves, they often take away the wrong message. They’ll

too often find themselves joining their more senior co-workers poking

fun at the poor-to-abysmal quality of the speaking they’ve witnessed.

But far more often than not, they’re blaming the victim and not the

perpetrator. Exactly what sort of training did law schools and employ-

ers provide these lawyers? How could legal education permit students

to graduate and legal organizations permit lawyers to practice display-

ing abilities far below any defensible standard of speaking effectively?

Those within the Alternative Vision, clinicians and non-clinicians

alike, imagine training effective speakers. They condemn teaching

“speaking for lawyers” and instead champion training students to be-

come effective speakers across roles and circumstances and institu-

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Spring 2018] Transform Legal Education 303

tions. To do so, they offer diverse samples of high-quality speaking—

by lawyers, of course, but by a far wider range still. Drawing on di-

verse literatures and videos, on contemporary technology, and when-

ever possible live performances, they help students identify and label

patterns and provide routine opportunities for students to emulate

what superb speakers do. They then review those simulated or live

practices, permitting all involved yet another cluster of valuable sam-

ple to appraise and learn from—and so the learning process continues.

What the best teachers stress most, perhaps, is an awareness of

the relationship between silence and vocalizing. Learning to say noth-

ing may well be the ideal point of departure. Learning to use silence

mixed with vocalizing may well be next. And learning how to vocalize

well when we do speak begins to fill out the picture—well, fill out the

picture, so long as vocalizing well includes not just what we do with

words and what we do with pitch and timbre (and the like), but what

we do with everything, from our eyes to our body posture. Speaking

effectively, after all, involves all the senses and their effects on our

audiences.

What those within the Alternative Vision stress emphatically is

that every time a lawyer speaks it’s a performance. That strikes many

as somehow “off.” They understand wonderful trial lawyers as prac-

ticed performers. They even can appreciate their artistry. (J. Bernard

Alexander, Michael R. Marrinan, Charles Ogletree, Anne Richard-

son, Kim Taylor-Thompson, Gerry Spence—to name only a tiny num-

ber.) But lawyers negotiating a redevelopment deal? Delivering a

report to an academic personnel committee? Serving as an appointed

Special Master? Asking questions as a bankruptcy judge? Interview-

ing a domestic violence victim? Sorting through the budget details

with diverse regulators?

Yet study these lawyers, in these roles and circumstances, and we

can find the very same qualities as we readily see in other performers.

In the person giving a closing argument or a speech at a mass demon-

stration. Once we accept the inevitability of performance, we can be-

gin to see, as teachers and as students and as practitioners, how crucial

it becomes to borrow from great speakers of all sorts. It’s not self-

evidently lawyers who offer us the best versions of varied perform-

ances. As negotiators, reporters, questioners, persuaders. In any

event, it’s less that we care at all about debating whether or not law-

yers are inferior or superior to others. The aim of the Alternative Vi-

sion, in training effective speakers as in everything else, is to learn

from wherever we can, always knowing we’ll find ourselves surprised

and enriched for having opened our hearts and minds

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304 CLINICAL LAW REVIEW [Vol. 24:247

3. Every Superb Lawyer Demonstrates The Capacity

a. To Frame And Understand Problems From Varying

Perspectives

We’ve got to understand problems before we can effectively at-

tack them.

After all, how can we remedy environmental degradation

or homelessness without having a strong grasp on what exactly we

confront? Regrettably, legal education does not robustly reflect this

basic truth. Most law schools still teach way more about “thinking like

a lawyer,” “reading cases,” and “sophisticated black-letter law” than

about how to comprehend and formulate problems. Indeed, legal edu-

cation tends to conflate learning to categorize problems into various

doctrinal categories with teaching everything lawyers must learn

about framing and addressing problems.

To make matters worse, lawyers often litigate, negotiate, and leg-

islate, they often transact deals, formulate policies, and design diplo-

matic relations (and more) without ever really studying—without ever

knowing what it means to regularly study—the very social phenomena

they hope to influence. Indeed, history is loaded with accounts of well-

intentioned lawyers attacking problems they only vaguely compre-

hended. Often in the name of justice, people and the problems they

face are ill-served. Think of the financial industry, gentrification, and

family violence, to name only prominent areas. Think too of law stu-

dents’ social justice fellowship applications, in which would-be fellows

must lay out their plans to solve (yes, solve) pressing problems in two-

year timelines. But we cannot solve what we do not understand—I

don’t care how much law we know or how good we happen to be in

the courtroom, before a legislative committee, or in negotiations, and

I don’t care how much we enjoy writing a white paper, organizing a

teach-in, or drafting a deal.

Teachers must teach and students must learn to study social

problems—not just some arguably relevant body of law. We must

A massive interdisciplinary literature speaks of the challenges of variously framing

problems precisely to understand them from varied perspectives, and especially the mid-

twentieth-century giants doing this work influenced my own thinking as much as did the

practices of those who surrounded me during my childhood years. For only a tiny sample of

the literature, see A

LLEN

EWELL

& H

ERBERT

A. S

IMON

, H

UMAN

ROBLEM

OLVING

(1972); T

HINKING

: A

NVITATION TO

OGNITIVE

CIENCE

(Daniel N. Osherson & Ed-

ward E. Smith eds., 1991); W

AYNE

W. R

EEVES

, C

OGNITION AND

OMPLEXITY

: T

OG-

NITIVE

CIENCE OF

ANAGING

OMPLEXITY

(1996). Herbert Simon stressed how much

time is spent structuring problems and how relatively little solving once choices are made

about framing. Herbert A. Simon, The Structure of Ill-Structured Problems, 4 A

RTIFICIAL

NTELLIGENCE

181 (1973). In more recent years, some clinicians have consciously bor-

rowed themes and insights from this great body of thought. For just one example, see

Susan D. Bennett, Embracing The Ill-Structured Problem in a Community Economic De-

velopment Clinic, 9 C

LIN

. L. R

. 45 (2002).

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Spring 2018] Transform Legal Education 305

learn—all of us—how to become and remain lifetime students of the

economic, political, social, cultural, ideological, and legal forces that

create and sustain the problems we hope to influence. Of course we

must teach and learn how to use a variety of approaches and methods

(quantitative as well as qualitative, structural as well as ethnographic,

to name only two) to get a handle of what with others we may be

trying to affect.

We must reach and learn to focus on the importance

of how problems get framed.

If we think we have already begun to

learn how to do all this, in school or in life or in both, then we must

learn to do it better still. We cannot know enough about how to study

and how to think about problems. It’s never-ending work—certainly

For several of my published accounts of how such community-participant empirical

work we at the Center for Community Problem Solving undertook can shape community

problem solving, see Gerald P. L ´opez, Shaping Community Problem Solving, supra note 8;

Gerald P. L ´opez, Health of Undocumented Mexicans, supra note 8.

I routinely use “frame” in the classic sense that influential thinkers about thinking

(Simon, Cowell, Bruner, for example) use “represent”—so that, for me, representing a

problem and framing a problem describe and evoke the same complex and important in-

terpretive processes and acts. See, e.g., Herbert Simon et al., Decision Making and Problem

Solving, Report of the Research Briefing Panel on Decision Making and Problem Solving,

in RESEARCH BRIEFINGS 1986 at 29 (1986), http://www.nap.edu/openbook.php?re

cord_id=911&page=17 (“The very first steps in the problem-solving process are the least

understood. What brings (and should bring) problems to the head of the agenda? And

when a problem is identified, how can it be represented in a way that facilitates its solu-

tion?”). In my initial written work on human problem solving, the depiction of the lay

lawyering of which professional lawyering is a stylized variation, both the text and foot-

notes reflect important interdisciplinary literatures about such matters. See L´opez, supra

note 19. For another article in those years, authored by a talented lawyer and clinician,

sorting through the influence of diverse “representation” and “framing” literatures (among

others) in thinking about trials, see Albert J. Moore, Trial by Schema: Cognitive Filters in

the Courtroom, 37 UCLA L. R

. 273 (1989).

A large literature, scholarly and professional, now focuses on “framing,” often defin-

ing the term in different ways, though not routinely describing the variations. For only a

tiny number of the many salient works I and others use regularly in our teaching, beginning

with perhaps the most influential in modern years, see Amos Tversky & Daniel

Kahneman, The Framing of Decisions and the Psychology of Choice, 211 S

. 453 (1981);

RVING

OFFMAN

, F

RAME

NALYSIS

: A

SSAY ON THE

RGANIZATION OF

XPERIENCE

(1974); C

HARLOTTE

YAN

, P

RIME

IME

CTIVISM

(1991). George Lakoff, a respected

scholar, has in recent years emerged as a publicly recognized “go-to” expert on how best to

frame to understand, persuade, perhaps find common ground. For a sample of popular and

scholarly work, see G

EORGE

AKOFF

& E

LISABETH

EHLING

, T

ITTLE

LUE

OOK

SSENTIAL

UIDE TO

HINKING AND

ALKING

EMOCRATIC

(2012); G

EORGE

AKOFF

, T

OLITICAL

IND

: A C

OGNITIVE

CIENTIST

’

UIDE TO

OUR

RAIN AND

OLITICS

(2009); G

EORGE

AKOFF

, H

OWARD

EAN

, & D

AZEN

, D

’

HINK OF

LEPHANT

: K

NOW

OUR

ALUES AND

RAME THE

EBATE

: T

SSENTIAL

UIDE

ROGRESSIVES

(2004); G

EORGE

AKOFF

& M

ARK

OHNSON

, M

ETAPHORS

IVE

(2003); G

EORGE

AKOFF

, M

ORAL

OLITICS

: H

IBERALS AND

ONSERVATIVES

HINK

(2d ed. 2002); G

EORGE

AKOFF

, M

ETAPHOR

: T

ANGUAGE OF THE

NCON-

SCIOUS

. T

HEORY OF

ONCEPTUAL

ETAPHOR

PPLIED TO

REAM

NALYSIS

(1992).

Enormously intellectually rich and pedagogically valuable literature, covering a wide-range

of phenomena, can in today’s world be understood as all about “framing,” at least if we use

the term in the most vigorous sense. See, e.g., A

MSTERDAM

& B

RUNER

, supra note 19.

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306 CLINICAL LAW REVIEW [Vol. 24:247

for lawyers and, from my perspective, for many others still.

Even if students have no idea what they would most like to un-

derstand for future work, teachers should offer and students should

pursue training designed to reveal and encourage how to study and

how to become lifelong students of some problem (capital markets,

job discrimination, law enforcement, domestic violence, dissent in a

democratic way of life).

Decades within and outside law schools

have taught us that learning about any problem, and about how to

learn about problems, matters far more than learning about one par-

ticular problem directly related with what we think we want to do in

our first job or for a lifetime. Once we learn what it takes to learn

about and continue learning about a problem, it’s been my experience

that we are far more likely to be more humble about what we know,

far more curious about what we must still learn, and far better

equipped to get ourselves up to speed.

Consider only a few examples.

Some phenomena we examine from different angles, through dif-

ferent histories, in the face of varying evidence precisely to under-

stand what has gone on and continues to face us. How should we think

about mass incarceration? Should we regard it as the answer to the

problem of crime and the challenge of protecting law-abiding citizens?

Should we appreciate that, at the deepest level, the United States has

relied too much on procedural safeguards in the Bill of Rights and not

on a substantive idea of justice as a premise and aspiration of the na-

tion and state and local communities? Or should we acknowledge the

brute and brutal truth that we simply have rigged up yet another “Jim

Crow” system for Blacks, and parallel systems for all communities of

color and for all poor White communities, substituting for earlier

forms of totalitarian social control?

Or should we locate prosecutors at the heart of the growth and

persistence of mass incarceration? Don’t they get paid well and

elected over and over for using their vast power to lock people up and

to trumpet their tough-on-crime credentials, proving themselves time

and again more responsible than on-the-street cops, misguided drug

laws, or profit-seeking prisons? Or should we openly appreciate that

prosecutors are no more responsible than all elected federal, state,

and local officials who, even as they insist they have now seen the light

and urge ambitious and effective reentry programs, assiduously avoid

In more recent years, law professors (working alone and with others outside of law)

have offered imaginative and concrete explorations of problem solving, including particu-

larly how everyday capacity proves powerfully important to any sort of challenge. See, e.g.,

YRES

& B

ARRY

ALEBUFF

, W

? H

VERYDAY

NGENUITY TO

OLVE

ROBLEMS

IG AND

MALL

(2003).

\\jciprod01\productn\N\NYC\24-2\NYC203.txt unknown Seq: 61 15-MAR-18 13:48

Spring 2018] Transform Legal Education 307

challenging the criminal justice system’s racially-tilted brutalities, all

because they fear being portrayed in the next election cycle as soft on

crime, proving once again we cannot trust mainstream officials to

transform any system?

Other phenomena we begin to examine in one way, only to ap-

preciate we may have neglected an alternative way that may well be

far more illuminating and yet deeply uncomfortable for most of us

openly to investigate and admit. After the campaign and election of

November 2016 revealed the considerable numbers of White

Supremacists actively supporting and voting for Donald Trump, after

many came to believe Donald Trump himself and many within his new

administration more than occasionally behaved in ways strongly sup-

portive of White Supremacists, any number of people—from everyday

folks to scholars to journalists—began to study earlier fascist states.

They hoped to learn how best to oppose (“resist”) effectively, how to

strengthen the Democratic Party, how to strengthen anti-White

Supremacists within the Republican Party, how to extend Bernie

Sanders’ movement. For all the apparent variety of these efforts, most

These questions draw upon a large and ever-growing body of literature. For only a

small sample of sources worthy of careful study and use in legal education, see J

OHN

FAFF

, L

OCKED

: T

RUE

AUSE OF

ASS

NCARCERATION

—

AND

OW TO

CHIEVE

EAL

EFORM

(2017); J

AMES

ORMAN

., L

OCKING

: C

RIME AND

UNISH-

MENT IN

LACK

MERICA

(2017); S

ABRINA

ONES

& M

ARC

AUER

, R

ACE TO

NCARCER-

ATE

: A G

RAPHIC

ETELLING

(2013); E

RNEST

RUCKER

, A P

LAGUE OF

RISONS

: T

PIDEMIOLOGY OF

ASS

NCARCERATION IN

MERICA

(2011); W

ILLIAM

J. S

TUNTZ

, T

OLLAPSE OF

MERICAN

RIMINAL

USTICE

(2011); M

ICHELLE

LEXANDER

, T

ROW

: M

ASS

NCARCERATION IN THE

GE OF

OLORBLINDNESS

(2010); M

ARY

OS-

WORTH

, E

XPLAINING

U.S. I

MPRISONMENT

(2009); M

ICHELLE

ROWN

, T

ULTURE OF

UNISHMENT

: P

RISON

, S

OCIETY

AND

PECTACLE

(2009); R

UTH

ILSON

ILMORE

, T

OLDEN

ULAG

: P

RISONS

, S

URPLUS

, C

RISIS

AND

PPOSITION IN

LOBALIZING

ALIFOR-

NIA

(2007); M

ARIE

OTTSCHALK

, T

RISON AND THE

ALLOWS

: T

OLITICS OF

ASS

NCARCERATION IN

MERICA

(2006); P

UNISHMENT

: T

U.S. R

ECORD

, 74 S

OCIAL

E-

: A

NTERNATIONAL

UARTERLY

(No. 2, Summer 2007); B

ERT

SEEM

& A

NNE

ORRISON

IEHL

, P

RISON

TATE

: T

HALLENGE OF

ASS

NCARCERATION

(2008);

RUCE

ESTERN

, P

UNISHMENT AND

NEQUALITY IN

MERICA

(2006); T

ENTER

ON THE

TATES

, O

NE IN

100: B

EHIND

ARS IN

MERICA

(2008); T

ENTER ON THE

TATES

, O

NE IN

31: T

ONG

EACH OF

MERICAN

ORRECTIONS

(2009); R

OBERT

ERKINSON

, T

EXAS

OUGH

: T

ISE OF

MERICA

’

RISON

MPIRE

(2010); T

RAVIS

RATT

, A

DDICTED TO

NCARCERATION

: C

ORRECTIONS

OLICY AND THE

OLITICS OF

IS-

INFORMATION IN THE

NITED

TATES

(2008); M

ARC

AUER

, R

ACE TO

NCARCERATE

(2006); A

NGELA

Y. D

AVIS

, A

RISONS

BSOLETE

? (2003); Gerald P. L ´opez, How Main-

stream Reformers Design Ambitious Reentry Programs Doomed to Fail and Destined to

Reinforce Targeted Mass Incarceration and Social Control, 11 H

ASTINGS

ACE

& P

. L.J.

1 (2014). For a thorough and revealing depiction of the Mayor Bloomberg-endorsed, ra-

cially-targeted “stop and frisk” practices of the New York City Police Department, read

Judge Shira Scheindlin’s 198-page opinion and her 39-page order in Floyd v. City of New

York, No. 08 Civ. 1034 (SAS), 2013 WL 4046209 (S.D.N.Y. Aug. 12, 2013) (holding New

York City’s “stop and frisk” practices unconstitutional), available at http://www.nytimes

.com/interactive/2013/08/12/nyregion/stop-and-frisk-decision.html.

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308 CLINICAL LAW REVIEW [Vol. 24:247

public commentary insisted Trump’s White Supremacists violated

“American values,” the “democratic tradition in the United States,”

and our convictions in and outside law about treating all as equals.

At least some, however, already had challenged this way of for-

mulating the question. Scholars of Nazi Germany, perhaps most

prominently, spoke about how, at least during its early years, Hitler’s

regime and especially talented German lawyers assiduously studied

the United States history (before and after the Civil War) to learn how

best to handle groups of people targeted as less than fully human and

certainly not entitled to full membership in the national community.

Perhaps to the surprise of those who had never read this superb litera-

ture, Nazi Germany looked not just at slavery and Jim Crow but per-

haps even more closely at how the U.S. had treated Chinese and

Japanese and Filipinos and Mexicans and Puerto Ricans, how it had

manipulated immigration and citizenship law, how it had handled its

own colonies. Nazi Germany’s Nuremberg Laws (the anti-Jewish leg-

islation enacted in 1935 creating a formal race order through new

forms of second-class citizenship and bans on interracial sex and mar-

riage) trace their origins to the dominant interpretation of the United

States Constitution, laws, and practices. Trump’s most extreme White

Supremacists speak with authority when they insist they mean to re-

establish, in full force, the political racial order that for most years has

defined the United States.

b. To Work Well (Collaborate) With Diverse Others

To solve problems, we have all got to learn to work productively

with others—clients and allies and diverse audiences, and, yes, adver-

saries and, yes, enemies. That’s more complicated than it sounds. Ob-

viously, it’s hard to cooperate with opposing counsel in the midst of

bitter disputes or with ideological antagonists in the midst of endless

conflict. But troubles with foes often obscure other profound chal-

lenges in lawyering. Many clients, for example, feel deeply ambivalent

about the legal system and everyone associated with it, including their

own lawyers. And many other people who work with the same popu-

lations—professionals and problem solvers of every sort—doubt the

For a small sample of the excellent literature, see J

AMES

Q. W

HITMAN

, H

ITLER

’

MERICAN

ODEL

: T

NITED

TATES AND THE

AKING OF

AZI

ACE

(2017);

AVID

COTT

ITZGERALD

& D

AVID

OOK

-M

ARTIN

, C

ULLING THE

ASSES

: T

EMO-

CRATIC

RIGINS OF

ACIST

MMIGRATION

OLICIES IN THE

MERICAS

(2014); M

ARILYN

AKE

& H

ENRY

EYNOLDS

, D

RAWING THE

LOBAL

OLOR

INE

: W

HITE

’

OUN-

TRIES AND THE

NTERNATIONAL

HALLENGE OF

ACIAL

QUALITY

(2008); S

TEVEN

ORWOOD

, T

HIRD

EICH IN THE

VORY

OWER

(2009); I

ERSHAW

, H

ITLER

, 1889-

1936: H

UBRIS

(1999); S

TEFAN

UHL

, T

AZI

ONNECTION

: E

UGENICS

, A

MERICAN

A-

CISM

AND

ERMAN

ATIONAL

OCIALISM

(1994).

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Spring 2018] Transform Legal Education 309

capacity of most lawyers to work with other problem solvers. In the

eyes of many, lawyers are the very antithesis of the collaborative

problem solver.

That’s a nasty reputation for any problem solver to live down.

And it doesn’t make it any easier when lawyers have not been

equipped in law school to think about, deal with, and constantly adjust

to the dynamics of working with others. Collaboration isn’t a science,

to be sure. And it can’t be reduced to mere technique. But we arrive

at law school, typically, with vast experience in collaboration. What

we know may often be more tacit than explicit. And what we have

learned may turn out to be something quite at odds with what we most

need if we’re to be as successful as we would like. We all have to grow

aware of who we are and how we work—not just what we aspire to be

on these fronts. Through training, we can nurture and develop the

ideas and skills and sensibilities—and the acute awareness necessary

to work well with others to understand and address problems.

Such training is as important in cutting a movie deal with HBO as

it is in designing new policies to govern the internal practices of Uber

as it is about somehow improving the relationship between the Native,

Latino, Asian Pacific Islander, and Black communities and law en-

forcement as it is in addressing violence within the LGBTQ commu-

nity across the state of Minnesota. All the more bewildering that

collaboration has been, for such a long period, central to graduate

business and public policy schools and so peripheral to legal educa-

tion.

No less than business and government personnel, lawyers can

and should equip ourselves to appreciate the challenges and advan-

tages of designing with others institutions and relationships suited to

the task of collective problem-solving.

Happily, thanks to discerning and persevering and distinguished

Even if the views develop through media, or especially if they reflect and get rein-

forced through modern technology, opinions about lawyers are often strongly negative and

utterly confident. See, e.g., P

AUL

ERGMAN

& M

ICHAEL

SIMOW

, R

EEL

USTICE

THE

OURTROOM

OES TO THE

OVIES

(2006).

For a small sample of the literature, see Elizabeth C. Lamoste & Peter D. Jacobson,

Collaboration Amid Crisis, 14 I

. H

EALTH

L. R

. 40, 53 (2017); Devin Lyons-Quirk &

Meghan Haggerty, Managing Cross-Departmental Collaboration: A Performance Scorecard

for Boston’s Mayoral Sub-Cabinets (Harv. Kennedy School, Working Paper, 2010); Gary P.

Pisano & Robert Verganti, Which Kind of Collaboration Is Right for You?, 86 H

ARV

. B

. (Dec. 2008); Lawrence M. Sung, Collegiality and Collaboration in the Age of Exclu-

sivity, 3 D

EPAUL

J. H

EALTH

ARE

L. 411 (2000); Howard Anawalt & Karen Robbins, The

Joint Enterprise: Collaboration Between the Public and Private Sectors, 6 M

ICH

. J. I

’

253 (1984).

The literature produced by clinicians about collaborations—including, working with

students—is insightfully powerful, as emotionally open as intellectually courageous. For

only a few examples, see Fisher Page, supra note 8; Kathleen A. Sulllivan, Self-Disclosure,

Separation and Students: Intimacy in the Clinical Relationship, 27 I

. L. R

. 115 (1993).

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310 CLINICAL LAW REVIEW [Vol. 24:247

contributions from the best in clinical legal education, law schools are

closing this gap. More than ever before, law students can find within

existing curricula, at least if they diligently scout out the offerings,

training at law schools structured to teach how to collaborate in the

less-than-ideal circumstances in which everyone inevitably finds them-

selves. That training can be both expanded and enhanced, of course.

But existing learning opportunities already establish a baseline worthy

of praise and emulation.

We already know much. To offer just some important themes, on

a list we should always regard as incomplete, evocative, and open to

question: Teaching and learning

• should explicitly define and pointedly call into question cus-

tomary paradigms of how lawyers regard other problem solvers

and of how others problem solvers regard lawyers;

• should deal directly rather than tangentially or implicitly with

gender, class, race, sexual orientation, culture, religion, age,

disabilities, ideology;

• should explore the interaction of lay and professional know-

how in framing issues, designing strategies, and evaluating

effectiveness;

• should develop and examine data that illuminate how every-

one—particularly, perhaps, clients and lawyers—assesses the

value lawyers bring to the diverse work they pursue together;

• should understand how community members interact with one

another, with other communities, with diverse other problem

solvers when lawyers are nowhere in sight or formally involved;

• should grasp how to work with—how to be a part of—the di-

verse phenomena commonly referred to as social movements.

The literatures addressing these and other pivotal themes has grown, and the strik-

ingly insightful contributions by people like Gary Bellow, Leroy Clark, Ron Edmonds,

Derrick Bell, Dale Minami, Lucie White, Regina Austin, Ann Shalleck, Bill Ong Hing,

Charles Ogletree, Paula Galowitz, Anthony Alfieri, Kathleen A. Sullivan, Shauna Mar-

shall, Kim Taylor-Thompson, Ascanio Piomelli, Susan Bryant, Jean Koh Peters, Muneer

Ahmad, Sameer Ashar, Alina Ball, Eduardo R. C. Capulong, Tara Ford, Patience

Crowder, Daria Fisher Page, Martha G ´omez, Brenda Montes, and Stephen Carpenter have

dramatically advanced our knowledge of the infinitely varied world of collaborations. See

Comment, The New Public Interest Lawyer, 79 Y

ALE

L. J. 1069 (1970); Leroy D. Clark,

The Lawyering in the Civil Rights Movement—Catalytic Agent or Counter-Revolutionary

19 K

, L. R

. 459 (1971); Ron Edmonds, Advocating Inequity: A Critique of the Civil

Rights Attorney in Class Action Desegregation Suits, 3 B

LACK

L. J. 176 (1974); Derrick A.

Bell, School Litigation Strategies for the 1970’s: New Phases in the Continuing Quest for

Quality Schools, 1970 W

. L. R

. 257 [hereafter Bell, School Litigation Strategies]; Der-

rick A. Bell, Jr., Serving Two Masters, 85 Y

ALE

L.J. 470 (1976) [hereafter Bell, Serving

Two Masters]; Minami, supra note 8; White, To Learn and Teach, supra note 8; White,

supra note 22; Regina Austin, Employer Abuse, Worker Resistance, and the Tort of Inten-

tional Infliction of Emotional Distress, 41 S

TAN

. L. R

. 1 (1988); Regina Austin, “The

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Spring 2018] Transform Legal Education 311

Black Community,” Its Lawbreakers, and a Politics of Identification, 65 S

. C

ALIF

. L. R

1769 (1992); Hing, Raising Personal Identification Issues, supra note 8; Shalleck, Construc-

tions of the Client, supra note 8; Sulllivan, supra note 46; Shauna Marshall, Class Actions as

Instruments of Change: Reflections on Davis v. City and County of San Francisco, 29 U.S.F.

L. Rev. 911 (1994-1995); Ogletree, Quiet Storm, supra note 8; Bellow, supra note 3; Taylor-

Thompson, Individual Actor, supra note 8; Taylor-Thompson, Politics of Common Ground,

supra note 8; Ann Shalleck, Theory and Experience in Constructing the Relationship Be-

tween Lawyer and Client: Representing Women Who Have Been Abused, 64 T

ENN

. L. R

1019 (1997); Galowitz, supra note 8; Piomelli, Appreciating, supra note 8; Susan Bryant,

The Five Habits: Building Cross-Cultural Competence in Lawyering, 8 C

LIN

. L. R

. 33

(2001); J

EAN

ETERS

, R

EPRESENTING

HILDREN

HILD

ROTECTIVE

ROCEED-

INGS

: E

THICAL AND

RACTICAL

IMENSIONS

(2d ed. 2001); Ascanio Piomelli, Cross-Cul-

tural Lawyering By The Book: The Latest Clinical Texts and a Sketch of a Future Agenda, 4

ASTINGS

ACE

& P

OVERTY

L. J. 131 (2006); Ahmad, supra note 8; Ashar, supra note 8;

Ball, supra note 8; Capulong, supra note 8; Fisher Page, supra note 8; Ford, supra note 8;

G´omez, supra note 8; Hing, Representing Unaccompanied Immigrant Children, supra note

8; Montes, supra note 8; Piomelli, supra note 4; Carpenter, supra note 8.

For illustrations of still other literaure I have used in training law students and law-

yers, see, e.g., W.E.B. D

OIS

, T

OULS OF

LACK

OLKS

(1903); A

UGUSTO

OAL

HEATER OF THE

PPRESSED

(Charles A. McBride & Maria-Odilia Leal McBride trans.,

Theatre Communications Group 1985)(1974); T

HIS

RIDGE

ALLED

ACK

: W

RITINGS

ADICAL

OMEN OF

OLOR

(Cherrie Moraga & Gloria Anzaldua eds., 1981); A

UDRE

ORDE

, I A

OUR

ISTER

: B

LACK

OMEN

RGANIZING

CROSS

EXUALITIES

(1985);

UDRE

ORDE

, S

ISTER

UTSIDER

(1984); Charles R. Lawrence III, The Id, the Ego, and

Equal Protection: Reckoning with Unconscious Racism, 39 S

TAN

. L. R

. 317 (1987);

ENATO

OSALDO

, C

ULTURE AND

RUTH

: T

EMAKING OF

OCIAL

NALYSIS

(1989);

Regina Austin, “A Nation of Thieves”: Securing Black People’s Right to Shop and Sell to

White America, 1994 U

TAH

L. R

. 147; Claude M. Steele & Joshua Aronson, Stereotype

Threat and the Intellectual Test Performance of African Americans, 69 J. P

ERSONALITY

. P

SYCHOL

. 797 (1995); Stephanie M. Wildman with Adrienne D. Davis, Making Sys-

tems of Privilege Visible, in P

RIVILEGE

EVEALED

: H

NVISIBLE

REFERENCE

NDER-

MINES

MERICA

(Stephanie M. Wildman ed., 1996); L

INDA

TOUT

, B

RIDGING THE

LASS

IVIDE

: A

THER

ESSONS FOR

RASSROOTS

RGANIZING

(1996); John A. Bargh et

al., Automaticity of Social Behavior: Direct Effects of Trait Construct and Stereotype Activa-

tion on Action, 71 J. P

ERSONALITY

& S

. P

SYCHOL

. 230 (1996); K

ATHRYN

DIN

AURA

EIN

, M

AKING

NDS

EET

: H

INGLE

OTHERS

URVIVE

ELFARE AND

-W

AGE

ORK

(1997); Claude M. Steele, A Threat in the Air: How Stereotypes Shape

Intellectual Identity and Performance, 52 A

. P

SYCHOLOGIST

613 (June 1997); A

NNE

ADIMAN

, T

PIRIT

ATCHES

OU AND

ALL

OWN

: A H

MONG

HILD

, H

MERICAN

OCTORS

AND THE

OLLISION OF

ULTURES

(1997); D

AVID

UCCHINO

YTH OF THE

ELFARE

UEEN

: A P

ULITZER

RIZE

-W

INNING

OURNALIST

’

ORTRAIT

OMEN ON THE

INE

(1997); F

RED

OSE

, C

OALITIONS ACROSS THE

LASS

IVIDE

ESSONS FROM THE

ABOR

, P

EACE

AND

NVIRONMENTAL

OVEMENTS

(2000); Michael

Zweig, Introduction—The Challenge of Working Class Studies, in W

HAT

’

LASS

OT TO

O WITH

?: A

MERICAN

OCIETY IN THE

WENTY

-F

IRST

ENTURY

1 (Michael Zweig ed.,

2004); Jerry Kang, Trojan Horses of Race, 118 H

ARV

. L. R

. 1489 (2005).

In my own and in collectively-authored courses, and in scholarship about lawyering

and teaching, I’ve aimed to feature collaboration of very diverse sorts—without lawyers,

within and across communities, with diverse credentialed and un-credentialed problem

solvers. See, e.g., Gerald P. L ´opez, Anti-Generic Legal Education, 91 W. V

. L. R

. 305

(1989) [hereafter L ´opez, Anti-Generic Legal Education]; L

OPEZ

, R

EBELLIOUS

AWYERING

supra note 8; Gerald P. L ´opez, An Aversion to Clients: Loving Humanity and Hating

Human Beings, 31 H

ARV

. C.R.-C.L. L. R

. 315 (1996); L ´opez, Shaping Community Prob-

lem Solving, supra note 8; Gerald P. L ´opez, A Rebellious Philosophy Born in East L.A., in

A C

OMPANION TO

ATINA

TUDIES

240 (Juan Flores & Renaato Rosaldo eds.,2007);

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312 CLINICAL LAW REVIEW [Vol. 24:247

We should make available and make use of courses (and other

specially designed learning opportunities) that require students to be

in role in simulated and real life situations. Of course we ought to

include ambitiously taught interviewing and direct examination. But

as importantly, we ought to include the many stages of planning work

(estate, corporate, election), community outreach and education and

mobilization, reorganizing corporations and municipalities, working

with and through social media, policymaking and lobbying, mediating,

practicing within intensely regulatory regimes. And, yes, more still to

match the remarkable diversity of work lawyers do with others.

Find or put into action field experiences and writing projects that

force students and teachers alike (and others still), from the diverse

perspectives collaboration can entail, to examine the allocation of

scarce resources; to evaluate possible options through which to pro-

ceed (various dispute resolution mechanisms; corporate buyout plans;

child custody arrangements). In the course of collaborations, develop

the capacity to learn from others, while together implementing and

evaluating strategies that present themselves as a result of the collec-

tive process of framing a problem.

Open up to the extraordinary amount we can learn from one an-

other in the course of deep and sustained collaborations. We can al-

ways learn from everyone we work with. But we perhaps learn most

when we collaborate with others who see the world differently, go

about their practices in ways different and even divergent from our

own, regard as difficult and as easy challenges we might differently

label. So vital is this learning from one another, in all collaborations,

that my current students, with a wry appreciation, have come to call it

“game stealing”—enhancing our own games by adapting what others

think and feel and do that might never before have occurred to us.

To emphasize the significance of collaboration, consider just one

example. In 1976, Derrick Bell published Serving Two Masters in the

Yale Law Journal.

The article became prominent and then canonical

for its frontal challenge to the ways lawyers autocratically governed

the aims and methods of big “impact” cases like the desegregation

lawsuits brought in the wake of Brown v. Board. Bell wanted to know

how, in the name of justice, lawyers and their funders refused to pay

close attention to members of diverse Black communities across the

country who yearned for quality education for their children rather

than the “integration” that White flight, judicial intransigence, and vi-

olent White mobilization had rendered increasingly unlikely if not

downright impossible.

L´opez, Health of Undocumented Mexicans, supra note 8.

Bell, Serving Two Masters, supra note 47.

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Spring 2018] Transform Legal Education 313

Bell’s article enraged a significant number of civil rights lawyers

and their supporters and funders of all races.

Yet because certain

prominent lawyers and funders were White, Bell’s message almost im-

mediately became portrayed as an in-your-face calling out of The

Man. Bell certainly did not flinch when probing whether the aspira-

tions of large (disproportionately White) donors influenced the views

and actions of LDF leaders and lawyers. And in Serving Two Masters,

and even earlier, it’s impossible to miss what would later get labeled

his Interest Convergence thesis: Change will ensue if and only if it

matches the needs of Whites. Even these depictions, however, miss

just how deeply and sharply Bell aimed his critique of the “collabora-

tion” practiced by many (most) LDF lawyers and NAACP members

in particular.

Deeply immersed as a litigator in these desegregation suits, Bell

knew from the inside just how intensely working-class and poor Black

communities for some time had been insisting that LDF’s strategies

had both utterly backfired and completely ignored growing numbers

of Black folks’ views. While unafraid to target Whites and the power

of dollars, Bell primarily aimed his message to other Blacks. He made

explicit divides between poor and working-class communities and

middle-class and upper-middle-class elites within Black life. He made

explicit the embedded notion of “expertise” that seemed, at least in

civil rights litigation, almost by default to adopt the views of lawyers

over the views of clients.

But what most pained and incensed Bell was the mounting evi-

dence that, consciously or otherwise, Black LDF lawyers and NAACP

members practiced a condescension toward everyday Black communi-

ties (as genetically and culturally unable to lead their own lives and

their own fight for freedom) that reproduced the very racial order at

the heart of slavery and Jim Crow. That way of lawyering, of living

life, defiled the idea of collaboration between equals and the very lib-

eration struggle waged by Blacks across the globe. That would not

do.

Bell shared with me in many personal conversations that he was ostracized by LDF,

a charge Julius Chambers insists he does not recall, though Bell never was again extended

an invitation to the annual Airlie Civil Rights Training Institute.

For only a small number of publications from a very large literature that, together

with many years of working with Bell, shapes this summary, see Clark, supra note 47;

Edmonds, supra note 47; Derrick Bell, School Litigation Strategies, supra note 47; Bell,

Serving Two Masters, supra note 47; Derrick A. Bell, Jr., Brown v. Board of Education and

the Interest-Convergence Dilemma, 93 H

ARV

. L. R

. 518 (1984); M

ARY

UDZIAK

, C

OLD

IVIL

IGHTS

: R

ACE AND THE

MAGE OF

MERICAN

EMOCRACY

(2000); Richard

Delgado, The Shadows and the Fire: Three Puzzles for Civil Rights Scholars, 6 A

. C.R.

& C.L. L. R

. 21 (2014).

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314 CLINICAL LAW REVIEW [Vol. 24:247

c. To Learn About “Local Communities,” “Geographically

Dispersed Communities,” And The Intimate Relationship To

“Global Forces”

We cannot understand problems or how to work with others in

devising strategies without learning about local and geographically

dispersed communities. That’s true whether you’re a legal service law-

yer in Boise, a policy wonk in Washington, D.C., or a corporate lawyer

in Tampa. Local and geographically dispersed communities are where

problems take root, where international, national, regional, and state

dynamics manifest themselves, where people suffer injustices and take

action to correct them, where problems and actions evolve over

time.

Learning how to learn about local communities includes develop-

ing both reliable methods for excavating historical patterns and con-

temporary practices and a down-to-earth savvy about interpreting

what you discover. Yes, that means we must teach and learn how to

find and consume published and unpublished studies (qualitative and

quantitative) describing, for example, local housing markets, law en-

forcement policies, commercial and banking and transportation sys-

tems, print and telecommunications centers. Yes, that means we’ve

got to keep our eye out for the little-publicized documentary and tele-

vision special that traces the origins or takes us inside contemporary

life of this or that neighborhood.

And, yes, that means we have got to learn to get out of the of-

fice—whether as a solo practitioner or a management consultant or a

government employee—to check out what’s going on in family farm

country, in small towns, in suburban sprawl, in “the streets” of urban

centers. That in turn means learning how to ask questions, how to

make room for answers, how to follow up—and, perhaps most impor-

tantly, how to discerningly find the right people with whom to ally

ourselves.

But when the best of clinical programs insist we have got to learn

to find and consume published and unpublished studies describing lo-

Problem solving literature—about politics, markets, and civic life—emphasizes now

more than ever before the relationship of learning locally and sharing across boundaries.

Again for only the tiniest sample of what for years has contributed to trainings I offer

inside and outside university boundaries, see Andrea Cornwall & John Gaventa, From

Users and Choosers to Makers and Shapers: Repositioning Participation in Social Policy

(Inst. of Dev. Studies, Working Paper No. 127, 2001); Susan Helper et al., Pragmatic Col-

laborations: Advancing Knowledge While Controlling Opportunism, 9 I

NDUS

. & C

ORP

HANGE

443 (2000); Anne Marie Goetz & John Gaventa, Bringing Citizen Voice and Cli-

ent Focus into Service Delivery (Institute of Development Studies, Working Paper No. 138,

2001); Ricardo Hausmann & Dani Rodrik, Economic Development as Self-Discovery

(2002), https://wcfia.harvard.edu/files/wcfia/files/525_rodrik1.pdf.

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Spring 2018] Transform Legal Education 315

cal social conditions, for example, they do not and should not mean

just during formal law school training. Reading widely and deeply

about the places where we find ourselves working is not just a course

assignment. It’s a never-ending part of first-rate lawyering. When we

say, “Keep your eye out for the ignored documentary and television

special,” we do not mean just every so often when the mood strikes.

Tracking what the big and small screens offer should be as habitual as

our morning cup of java or black tea or a Califia Cold Brew.

And when we say, “Get out of the office,” we do not mean get

out of the office in order to attend yet another meeting of elites or

even allies or even grass-top leaders. We mean get out of the office to

learn about what all people are doing, what all people are thinking,

about political life in the broadest sense of honor and justice. To learn

about “what all people” do and think and feel is impossible, of course.

But aiming high helps eliminate the possibility of doing little or noth-

ing at all, a routine incredibly familiar to most lawyers. When we say

“get out,” that’s true of finding out about the rural and suburban and

urban expanse called the Rust Belt and every bit as true about discov-

ering what is variously true of the diverse Asian Pacific Islander popu-

lations living in the greater Seattle area. For all the important patterns

discernable, by getting out we can discover the different particulars in

every community as essential to our capacity to attack problems as

anything we might do.

Do not for a moment, though, imagine all this is possible only “in

theory.” Practitioners and clinicians—and all those working with

them, especially students and co-workers—daily demonstrate how we

can all do what some would pretend we cannot in dealing with geo-

graphically dispersed communities. Think of Brenda Montes working

with immigrants spread out across greater Southern California. Con-

sider Tara Ford driving her car to clients and their caretakers and their

communities in every imaginable part of the larger-than-you-might-

think state of New Mexico. And picture Meg Satterthwaite, with her

characteristic mix of humility and daring, trying with her students to

practice rebellious lawyering “from afar” with communities living in

Haiti and other parts of the globe.

Even after exhaustive searches, sometimes available resources

may fall short—may even fail entirely—in helping us learn what we

most need to understand. That’s true of less well-known and very

well-known places. We may be intensely in need of information about

certain residents, certain neighborhoods, and even boroughs in New

York City. If we arrived in NYC in 1999—and even perhaps in 2018—

See Ford, supra note 8; Montes, supra note 8; Meg Satterthwaite, Rebellious Law-

yering from Afar (Power Point presentation on file with author) (2016).

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316 CLINICAL LAW REVIEW [Vol. 24:247

far too little could be found, even after exhaustive search, about the

growing Mexican immigrant population, about the problems faced by

and the problem solvers available to residents of East Harlem and

Harlem, Bushwick and Bedford Stuyvesant, Chinatown and the

Lower East Side, and about particular swaths of neighborhoods in

Staten Island. To generate the knowledge we and others so badly need

may then require that we create, implement, and evaluate the data

produced by targeted empirical studies—even about New York, a city

as studied as it is lionized.

Yes, justice-seeking problem solving de-

mands as much.

We teachers and students should prepare ourselves well. Create

and take advantage of educational opportunities (in and outside the

law school) that regard learning about local communities as central to

responsible lawyering. Offer and search out readings, simulations,

writing projects, and field experiences that require students (often

with teachers) to learn the nitty-gritty of how power operates, the de-

tails of how strategies have influenced policies and routines, the first-

hand accounts of how residents variously perceive how things happen

and how they might change. Provide and enroll in courses and field-

work projects that train in rigorous empirical work, enabling us to de-

sign and put into action our own studies as well as digest and assess

the research produced by others. Look for training that cultivates an

endless curiosity about what immediately surrounds you, because

those communities are endlessly changing, and a healthy skepticism

about intervening without reliable local knowledge.

d. To Imagine And Implement Varied Strategies And

Ensembles Of Strategies (Across Legal, Political, Economic,

Social, And Cultural Realms)

Resourceful lawyers generally decline to rank strategies in ad-

vance—to label one necessarily more effective than others. Whether

they’re planners, transaction lawyers, litigators, mediators, lobbyists,

or policy theoreticians, they appreciate the limits as well as the prom-

ise of what they happen to do. In collaborating with others, they focus

on the particular problem, what might work to solve it, and which

practitioners (lay and professional) are best equipped to take the lead

and which best equipped to help out in less central ways. Their assess-

ments are always ad hoc, concrete, and provisional. They never design

any strategy or constellation of strategies without some ambivalence

about how well it suits the task at hand. And they remain alert to the

For a tiny illustration of studies undertaken to fill such voids in our knowledge of

New York City, see L ´opez, Shaping Community Problem Solving, supra note 8; L ´opez,

Health of Undocumented Mexicans, supra note 8.

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Spring 2018] Transform Legal Education 317

need to alter or even abandon strategies as the circumstances

dictate.

Developing a penetrating strategic sense is a lifetime assignment,

one we have all already begun to pursue simply by virtue of our every-

day experiences. We should use law school, though, to enhance what

we already know and to discover what we have not had much oppor-

tunity to think about and nurture. Provide and take advantage of

training specially designed to teach how to plan, transact, negotiate,

litigate, mediate, lobby, educate, mobilize, organize, form social

movements, and work with the media and through social media.

Explore competing theories of how power influences the choice

of strategies, how strategies might be conceived and executed, how

existing capacities give life to or frustrate strategic planning, how law-

yers might best serve strategic ends. Practice doing everything neces-

sary to execute strategies—identifying what particular capacities we

need and focusing on their conscious development. Do not just prac-

tice them a little. Practice them as much as possible, in simulated and

real life settings, with the aim of improving both what we’re not so

good at and what we may very well be gifted at doing.

Closely study what may already be available to consume. Pour

over Stephen Carpenter’s description of FLAG (Farmers’ Legal Ac-

tion Group, Inc.), focusing on the incredibly diverse strategies those

working there develop and, perhaps even more frequently, proudly

borrow from their clients and client communities. Examine closely

Bill Ong Hing’s exploration of the Eric Cohen-led ILRC (Immigrant

Legal Resource Center), gaining a handle on just how magnificently

the ILRC staff and its clients and its collaborators improvise as situa-

tions demand, sometimes developing entirely novel strategic ensem-

bles required by necessity. And pour over news clippings and

television clips piecing together the strategic wisdom of the Nevada

ACLU during the years when the astonishingly gifted, persevering,

and resilient Gary Peck served as the Executive Director.

Or get inside the relationships cultivated by—and the spirit of—

Shauna Marshall. As a lawyer, executive director, clinician, and dean.

Begin to recognize the strategic genius that animates her collaboration

Together with many others, I have long advanced this view. See L

OPEZ

, R

EBELLIOUS

AWYERING

, supra note 8; Gerald P. L ´opez, A Declaration of War by Other Means: Disa-

bling America: The ‘Rights Industry’ in Our Time, 98 H

ARV

. L. R

. 1667 (1985).

Such work can take the form, for example, of “ends-means thinking” that Tony Am-

sterdam has stressed over the years. See Anthony G. Amsterdam, Clinical Education—A

21st Century Perspective, 34 J. L

EGAL

DUC

. 612 (1984).

See Carpenter, supra note 8; Bill Ong Hing, Legal Services Support Centers and Re-

bellious Advocacy: A Case Study of the Immigrant Legal Resource Center, 28 W

ASH

. U.

J.L. & P

’

265 (2008).

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318 CLINICAL LAW REVIEW [Vol. 24:247

with remarkable numbers of people and organizations, routinely ex-

amining what off-the-shelf strategies might well be customized (don’t

remake the wheel) and breathing into life as necessary novel strate-

gies and tactics when nothing else works (make up what you must). At

least for a while, and now and then for longer than a while, Marshall

does what most of us find as daunting as any challenge we face: She

changes institutions. The imagination at work can feel intimidating.

Most of all, though, like so many other brilliant strategists (including

clinicians like Bellow, Charn, Eagly, L ´opez Beltran, Stevenson,

Thompson – to name just some), sweat labor combines with collective

creativity to picture what others cannot and to figure out ways to get

there.

e. To Monitor And Evaluate The Effectiveness Of Strategies

As Pursued And Problems As Framed

A superb lawyer must learn to monitor and evaluate whether

strategies pursued bring about the desired change. Ambitious and ef-

fective problem solving demands as much. Does the new baseball sta-

dium actually provide the jobs and revenue—all the “multiplier

effects” promised by its developers? Does the community bank we

may have helped design actually improve the capacity of low-income

residents and small business owners to borrow much needed capital?

Does the clean water legislation we may have successfully helped push

through actually do anything to rid water of dangerous pollutants and,

if so, at what cost? Did our “successful” class action lawsuit actually

change the investment practices of the trust fund managers? Does the

civilian review board we helped create and staff effectively deter po-

lice abuse of local residents? Does the community outreach program

we helped implement effectively educate immigrants about the cur-

rent impact of proposed new federal, state, or local legislation? Did

the fellowship project we funded achieve its stated purpose?

See Marshall, Rebellious Deaning, supra note 8.

Over the decades, clinicians and lawyers have learned from many about how best to

evaluate strategies implemented. For me one important source has been the work of public

health specialists, including those leading and working with the Center for Urban Epidemi-

ologic Studies in New York City. For a small sample of publications describing what I

regard as the Center’s rebellious approach to public health, see Barbara A. Israel et al.,

Challenges and Facilitating Factors in Sustaining Community-Based Participatory Research

Partnerships: Lessons Learned from the Detroit, New York City and Seattle Urban Research

Centers, 83 J. U

. H

EALTH

1099 (2006); Nicholas Freudenberg, Case History of the Center

for Urban Epidemiologic Studies in New York City, 78 J. U

. H

EALTH

508 (2001); Sandro

Galea et al., Collaboration Among Community Members, Local Health Service Providers,

and Researchers in an Urban Research Center in Harlem, New York, 116 P

. H

EALTH

. 530 (2001); Donna L. Higgins et al., CDC Urban Research Centers: Community-Based

Participatory Research to Improve the Health of Urban Communities, 10 J. W

OMEN

’

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Spring 2018] Transform Legal Education 319

These questions can be as difficult as they are important to an-

swer. After all, societies, institutions, and relationships evolve in cy-

cles, taking their definition from and giving rise to ever-evolving

strategies and counter-strategies. New or recycled strategies often

render useless some previously successful line of attack, and the cycle

begins again, leading along the way to new and improvised ways of

seeing the world and trying with others to change it. It’s always diffi-

cult to determine exactly where we are in any cycle, whether current

strategies are working, and for how long. The very difficulty of know-

ing with confidence what’s happening and where we are emphasizes

the importance of stepping up to the challenges—however indetermi-

nate and even perhaps indecipherable—rather than shirking as if

“waiting it out” necessarily tells us when a cycle has run its course.

By and large, lawyers have not been very careful about examining

the consequences of our own efforts. Perhaps this state of affairs only

reflects time and resource constraints. Like many clients, lawyers may

simply be too overwhelmed just getting by day to day to undertake

the sorts of studies necessary to evaluate their own strategies. At

times, however, the habits of lawyers also seem to reflect a failure to

appreciate how central detailed feedback is to effective strategic

thinking and successful problem solving—maybe a belief we are

above such feedback. Or perhaps we are sometimes afraid of what we

might find; after all, who wants to look back on her work and find that

the solution she advocated for so zealously turned out not to be a

solution at all? For whatever reason, none of them good, too many

lawyers fail to take advantage of those studies of our work developed

by think tanks, academic institutions, and government agencies. For

whatever reason, many law offices fail to integrate into their strategic

thinking the relative successes of their own past efforts.

In any event, our job is certainly not to repeat earlier generations’

failures, whatever their causes. Instead, teachers and students in and

around law schools must equip ourselves to study—as a regular mat-

ter, as part of everyday practice—the impact of various strategies.

Provide and seize diverse training during formal years in law school

(and of course beyond). Through some combination of courses, inde-

EALTH

& G

ENDER

ASED

. 9 (2001); Donna L. Higgins & Marilyn Metzler, Imple-

menting Community-Based Participatory Research Centers in Diverse Urban Settings, 78 J.

. H

EALTH

488 (2001). See also East Harlem Community Resource Guide, April 2012,

https://www1.nyc.gov/assets/doh/downloads/pdf/dc/east-harlem-resource-guide.pdf; Insti-

tute for Urban Health, The New York Academy of Medicine, http://www.nyam.org/insti-

tute-urban-health/ (last visited Feb. 2, 2018).

Of the various studies of the work of lawyers, some do take on pronounced signifi-

cance. See, e.g., G

ERALD

N. R

OSENBERG

, T

OLLOW

OPE

: C

OURTS

RING

BOUT

OCIAL

HANGE

? (1991).

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320 CLINICAL LAW REVIEW [Vol. 24:247

pendent study programs, and field experiences, come to grips with

what the historical record may reveal about the demonstrated capacity

to change social life. Develop methods for assessing the quantitative

and qualitative impact of strategic actions. And, importantly, try these

critical methods on for size. In role, participate in evaluating the suc-

cesses and failures of our own work and that of others.

Consider only one example—but a big one, in terms of its impor-

tance and its price tag.

To control soaring health care costs, many U.S. corporations have

rolled out wellness programs. Executives have believed encouraging

employees to adopt a healthy lifestyle would lead to fewer trips to the

doctor and fewer missed workdays. Roughly three-quarters of HR

professionals said their organizations offered some sort of a wellness

program in 2014. And more than two-thirds of these Human Re-

sources officials reported that their programs were “somewhat effec-

tive” or “very effective” in reducing health care costs.

In thinking as they do, these corporations are hardly outliers. For

decades, people have heard and many have come to believe that

adopting a healthier lifestyle would lead directly to improved health.

The fundamental notion can be traced to studies conducted half a cen-

tury ago. Public health specialists sought to identify particular behav-

ioral risk factors (say, smoking or physical inactivity) that influence

mortality and illness. They concluded—and by now it has become con-

ventional wisdom—that “fixing” our lifestyle is the right approach to

improve the health of employees.

Yet a closer look at the feedback from all the available studies

casts considerable doubt on this very way of framing and addressing

the problem. A 2013 RAND Wellness Programs Study, targeting

about 600,000 employees at seven large U.S. employers, found well-

ness programs had little, if any, immediate influence on the amount

employers spend on health care. In a follow-up study of PepsiCo’s

wellness program, the disease management component of the pro-

gram produced some return while the lifestyle component did not re-

duce costs by any significant amount. Yet the percentage of employees

enrolled in the lifestyle component of their employers’ wellness pro-

grams (covering weight reduction, smoking, and the like) dwarfed by

sixfold the percentage enrolled in the disease management component

(designed to improve control of chronic conditions).

In evaluating these data, one highly respected epidemiologist,

Sandro Galea, thinks the conventional wisdom about wellness pro-

grams may reflect a problem poorly represented, leading in turn to

strategies doomed to fail. A focus on trying to “fix” lifestyle—the pre-

mise driving many corporate wellness efforts—incorrectly elevates the

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Spring 2018] Transform Legal Education 321

role of personal agency in health. Yet, says Galea, we know enough to

question this focus. It is not at all evident, despite conventional wis-

dom, that changing lifestyle by itself works to reduce or minimize

much disease. Targeted efforts at reducing the onset of gout and of

heart disease through individual lifestyle changes offer negligible to

no proof that the strategy works.

Indeed, the idea that we have the capacity to predict individual

health to any meaningful extent is, says Galea, likely mistaken. Be-

cause a person has a gene that increases cancer risk (the premise of

genomics applied to cancer prevention) does not mean cancer will de-

velop. The development of disease is far more complex than simple

cause and effect—turning, instead, on the interaction between many

biological and environmental factors. The unpredictability of individ-

ual risk explains why we all know people who smoke or are obese and

are quite healthy, and, at the same time, why we know people who

have fallen ill despite the most “virtuous” behavior.

Our behaviors can only be understood and altered only in con-

text, insists Galea. By context, he means not only where we live but, to

name just two more forces, within what cultures and at what income

level. For example, 92 percent of the global population lives in places

where pollution levels exceed widely accepted limits, affecting both

indoor and outdoor environments. In 2012, approximately 6.5 million

deaths were linked to this polluted air. Lifestyle changes, says Galea,

will make little to no difference on our lung health if we live in a place

where we are breathing polluted air. Much the same is true of culture.

The fact that smoking is no longer an accepted behavior, at least

among some groups, is tied to the sharp decline in smoking in the U.S.

Income shapes all aspects of our life, from how we live to where

we live and who we live with. And, understandably, it remains a tre-

mendously consequential driver of wellbeing. Worldwide, children

who are born into the poorest 20% of households are almost twice as

likely to die before reaching age five as children born into the richest

20%. Income affects wellbeing through its link to food ac-

cess, neighborhood safety, educational advantage, and quality of ac-

cessible healthcare.

In framing the problem far more accurately, Galea urges us to

shift our focus away from individuals, and individual lifestyles, toward

programs that target the full set of factors that shape the collective

health of populations. Instead of focusing on employee wellness, we

may focus on community wellness. Think of the wellbeing not just of

employees but of the surrounding population from which they are

drawn. For example, even healthy employees often miss work when

their children get sick or their parents need care. But in a generally

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322 CLINICAL LAW REVIEW [Vol. 24:247

healthy community, there would be fewer such occurrences.

Galea offers several examples. Consider asthma, afflicting about

25 million Americans and costing the country $56 billion dollars annu-

ally in medical costs, lost work, missed school days, and early deaths.

While the work of the health care sector can certainly go a long way

towards reducing that burden, he says, we can do just as much, and

likely more, by addressing the environmental factors that trigger

asthma, factors that are beyond the control of any one individual or

corporation.

Or consider the sharp rise in obesity, which costs the country an

estimated $210 billion annually in health care, and contributes to the

$4.3 billion annual cost of days absent from work. Why would Ameri-

cans be eating so much more today than they did 30 or 50 years ago?

Because, among other factors, over the past 20 years, portion sizes for

readily available foods have almost tripled, while the price of calorie-

dense, nutrient-poor foods has dropped. So though we can certainly

counsel individuals to eat less, we could make far more headway by

looking to the provision of unhealthy food that contributes to obesity

to begin with, or into building environments that favor physical activ-

ity over sedentary transportation.

Galea’s no pie-in-the-sky problem solver. Defining health

problems in this way may be far more accurate and fruitful—but, he

openly acknowledges, exceeds what most corporations regard as

within their orbit. Engaging health requires corporations to collabo-

rate with other organizations, including many outside their industry

sector, and with other entities that may seem still further out there.

Familiar or not, desired or not, such a coordinated effort is necessary

if we want to make real progress toward having healthier employees

and, as a result, healthier businesses and a healthier economy.

f. To Design And Manage The Institutions Through Which We

Work And Live

We cannot understand how lawyers might more effectively tackle

problems unless we study the design and management of the offices,

organizations, coalitions, networks, and institutions in which we inevi-

tably work. That proves true no matter how exactly we structure our

problem-solving practice. How we make use of time, resources, and

personnel shapes our relationships, our ability to get things done, and

our satisfaction with what we achieve. Of course, individual talent,

skill, and dedication matter. But certainly over the long haul, we are

See Sandro Galea, What Corporate Wellness Programs Get Wrong About Health,

ORTUNE

(Oct. 4, 2016), http://fortune.com/2016/10/04/corporate-wellness-programs-

health/.

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Spring 2018] Transform Legal Education 323

ultimately only as good as we collectively equip ourselves to be. The

design and management of offices, organizations, coalitions, networks,

and institutions play a hugely influential role in determining the na-

ture, quality, and trajectory of work.

Perhaps this is all self-evident. Indeed, many respond to such ob-

servations with a “what else is new?” shrug. But these reactions make

all the more puzzling why legal education does not already emphasize

sustained attention to design and management questions. It is hardly

that these questions are foreign to professional schools or professions.

Graduate management schools offer a wide variety of courses and

produce mountains of scholarship on the organizational structure and

practices of business enterprises. And dissimilar for-profit busi-

nesses—from monstrous global corporations to “mom & pop

stores”—have come to treat such issues as central to their survival and

growth.

In fairness to some law schools and some scholars, the organiza-

tional structure of corporate law firms has become a topic of increas-

ing interest. Yet the various offices, organizations, coalitions,

networks, and institutions within which lawyers work remain far too

frequently outside the bounds of formal legal training, in and after law

school. If we all really do understand how much our work environ-

ments shape what we do in the world, why then don’t we raise design

and management questions everywhere we find ourselves—in law

schools, at conferences, in law offices, and at coalition meetings?

We must change this state of affairs. We must offer and seek out

those learning opportunities where design and management issues al-

ready get treated as centrally important. But we cannot stop there.

Why not make such issues central to every situation where the nature,

quality, and satisfaction of work matter? Certainly the promise of such

a shift is already there to be found. Some training opportunities in law

schools make these questions central. Consider James Liebman’s

Center for Public Research and Leadership (CPRL). Combining in-

terdisciplinary study and practicum training, Liebman and his stu-

dents—and the diverse span of institutions, communities, and

individuals with whom they work—offer us an evocative illustration of

how all of legal education might pursue such aims:

The mission of the Center for Public Research and Leadership

(CPRL) is to revitalize public education while reinventing profes-

sional education. CPRL conducts rigorous coursework, skills train-

ing, and research and consulting projects to ready talented graduate

students for challenging twenty-first century careers enhancing the ed-

ucation sector’s capacity to improve the outcomes and life chances of

all children.

Currently, a serious talent and leadership gap threatens the ca-

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324 CLINICAL LAW REVIEW [Vol. 24:247

pacity for change in U.S. public education. Education and allied or-

ganizations need leaders capable of transforming information and

experiences into action for constant and rapid learning by those lead-

ers themselves, the educators and other adults with whom they work,

and the children, families and communities they serve.

At the same time, many graduate students enter professional pro-

grams hoping to help transform public education, yet find that their

programs do not provide the experiential problem-solving skills they

need to meet their aspirations and those of the forward-thinking edu-

cation sector organizations they hope to join. Nor do their programs

provide career services designed to maximize their access to those

organizations.

CPRL fills these gaps by immersing talented graduate students

in:

• The study of P-12 organizational design, democratic account-

ability, and transformation

• Intensive training in a range of twenty-first century team-based

problem-solving skills

• High-priority research and consulting projects on behalf of

public- and social-sector education organizations nationwide

Supervised by CPRL’s exceptionally talented and experienced

faculty and Engagement Managers, CPRL’s high quality, low cost

professional services are highly rated by its clients and run the gamut

from diagnostic performance evaluation and continuous improve-

ment to content areas such as personalized and socio-emotional

learning, teacher preparation and retention, early childhood educa-

tion and school integration, to traditional strategic and management

support.

Armed with this rigorous preparation and aided by targeted ca-

reer services, a majority of CPRL graduates embark on promising

careers managing change-minded P-12 and allied organizations.

These include state and district departments of education, charter

management organizations, innovative non-profits, advocacy organi-

zations, and many others.

To date, CPRL has completed more than 100 consulting

projects; formed partnerships with two dozen professional schools;

and prepared over 300 students, with over 70% of its graduates serv-

ing education and allied organizations.

And outside of law schools, in the hard-bitten world of over-

worked lawyers, there are extraordinary small for-profit offices, mas-

sive non-profit organizations, statewide bureaucracies, middle-size

Columbia Law School, Center for Public Research and Leadership, About CPRL,

http://www.law.columbia.edu/public-research-leadership (last visited, Jan. 27, 2018). For

just a sample of Liebman’s scholarship about design and management, see James Liebman

& Charles F. Sabel, A Public Laboratory Dewey Barely Imagined: The Emerging Model of

School Governance and Legal Reform, 28 NYU. R

. L. & S

. C

HANGE

183 (2003).

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Spring 2018] Transform Legal Education 325

firms, and global corporate firms that have made design and manage-

ment issues central to their mission and their idea of effective practice.

Think only of Tsui Yee and Law Offices of Tsui. H. Yee, P.C. in New

York City; Bryan Stevenson and Equal Justice Initiative in Montgom-

ery, Alabama; Tara Ford and Liz McGrath and Pegasus Legal Services

for Children in Albuquerque, New Mexico; The Team of Founders

(Jim Massey, Lynn Hayes, Sarah Vogel, and the late Dale Reesman)

and Current Leaders (including Stephen Carpenter) and Farmers Le-

gal Action Group in St. Paul Minnesota; Dale Minami and Don

Tamaki and Miami Tamaki in San Francisco, California; Guy Halgren

and Sheppard Mullin with offices in San Diego, Beijing, Brussels,

Century City, Chicago, London, New York, North County San Diego,

Palo Alto, Seoul, Shanghai, and Washington, D.C.

We within legal education should follow the lead of such lawyers

and organizations, not because they claim to have any one-size-fits-all

blueprint, but because they endlessly examine whether their work en-

vironments give life to the practices they hope will solve vexing

problems, provide a healthy place for their employees to labor, and,

yes, change the world for the better.

g. To Learn How To Learn (From Experience And In Every

Which Way) Throughout The Course Of A Problem-Solving

Career

Problem solving is something we all already know how to do and

something we can always get better and better at—along some dimen-

sions, wildly better at. The tired notion that equates expertise with

having little or nothing to learn must be discarded, buried, burned. We

must cultivate, instead, an image of the expert that makes always

learning central to what it means to be any good at all, much less

great.

In some ways, this challenge has as much to do with popular cul-

ture as legal culture. But insofar as they intersect, we must not shy

See https://www.yeeimmigration.com; https://eji.org/bryan-stevenson; http://pegasus-

law.org/staff/; http://www.flaginc.org/about/our-team/; http://www.minamitamaki.com/;

https://www.sheppardmullin.com/ghalgren.

During the past decade, as in earlier eras, some emphasized the importance of learn-

ing to learn across the course of a career as a pivotal aspect of a transformed legal educa-

tion. See, e.g., William Berman, When Will They Ever Learn? Learning and Teaching From

Mistakes in the Clinical Context, 13 C

LIN

. L. R

115 (2006); Julie A. Oseid, When Big

Brother is Watching (Out For) You: Mentoring Lawyers, Choosing a Mentor, and Sharing

Ten Virtues From My Mentor, 59 S.C. L. R

. 393 (2008); Leslie C. Levin, Bad Apples,

Bad Lawyers or Bad Decision Making: Lessons From Psychology and From Lawyers in the

Dock, 22 G

. J. L

EGAL

THICS

1549 (2009); Gail B. Agrawal, Foreword (Symposium:

The Future of Legal Education), 96 I

OWA

L. R

. 1449, 1451 (2011); Laurie Barron, Learn-

ing How to Learn: Carnegie’s Third Apprenticeship, 18 C

LIN

. L. R

. 101 (2011).

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326 CLINICAL LAW REVIEW [Vol. 24:247

away. Not many courses in law school go explicitly by such names as

“Learning to Learn” and “From Novice to Master”—though courses

elsewhere in and outside the university do.

We can make it our indi-

vidual and collective job to investigate what teachers and students,

what materials and methods, what experiences treat always learning

as elemental to what any good problem solver believes and practices.

And we can both avail ourselves of existing training and, obviously,

develop new and ambitious and effective training about how to learn

even and especially as the years unfold.

From the outset, and through today, the best of clinical legal edu-

cation (and all the realms contributing to its development) has empha-

sized the importance of law schools consciously training students how

imaginatively, resourcefully, and effectively to learn over the course of

their career. We can find this exhortation in the teaching of everyone

from Aaronson to Abel to Abernathy to Achiume to Adler to Aiken

to Alfieri to Alvarez to Amsterdam to Anabtawi to Anderson to

Ashar to Austin to Ball to Barnhizer to Bechtol to Bell to Bellow to

Binder to Binder to Bergman to Bisharat to Boland to Boswell to

Brudney to Bryant to Bruner to Burciaga to Burns to Burns to Bussel

to Camp to Capulong to Cazares to Champagne to Charn to Chemer-

insky to Cohen to Cole to

Crowder to Dalton to D’Amelio to Davis to Davis to Derian to

Dickson to Donald to Eagly to Elke to Elson to Ely to Fendall to

Fisher Page to Fei to Francois to Ford to Riedman to Futterman to

Galowitz to Gilbert to Goldberg to Goldfarb to G ´omez to Goodman

to Grillo to Guggenheim to Hamada to Hawver to Hertz to Hing to

Holmquist to Horne to Ivey to Johnson to Jones to Kadushin to Ken-

nedy to Kennedy to Kennedy to Kim to Klee to Kotkin to LaRue to

Lesnick to Letwin to Liebman to L ´opez Beltran to LoPucki to Mabry

to Marshall to Mart´ınez to Mart´ınez to McFarlane to Mendez to Men-

doza to Mersky to Michelman to Milstein to Minami to

Mirsky to M ´onica to Montoya-Lewis to Moore to Moulton to

Nelson to Nerney to Ogletree to Patterson to Peck to Piomelli to

Prager to Quigley to Rabb to Ramon to Rivkin to Rubin to Sander to

Santiago to Satterthwaite to Schatz to Schwartz to Sexton to Shalleck

to Shiffrin to Steel to Steinglass to Stevenson to Stone to Sullivan to

Taylor-Thompson to Thompson to Tolbert to Tong to Trautman to

Valdes to Varat to Warren to Wilkins to White to Wizner to Won-

sowicz to Wortham to Wright to Wright to Yamamoto to Zehn to

Zuni Cruz. And we can find the same lessons in how they have con-

Of the scholars producing a large literature, certainly Anders Ercsson is among the

most influential. See A

NDERS

RCSSON

& R

OBERT

OOL

, P

EAK

: S

ECRETS FROM THE

CIENCE OF

XPERTISE

(2106).

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Spring 2018] Transform Legal Education 327

ducted themselves over the course of a career—how they practiced

what they preached.

When I think of Tom Adler, Ralph Abernathy, Derrick Bell,

Gary Bellow, Haywood Burns, Melinda Binder, Cecilia Burciaga,

Jerry Bruner, Luke Cole, Skye Donald, Tom Elke, M. Shanara Gil-

bert, Trina Grillo, Napoleon Jones, Linda Mabry, Miguel Mendez,

Chet Mirsky, Dorothy M ´onica, Sister Mary Nerney. Kathleen A. Sulli-

van, Donald Trautman, and Bill Warren, as I often do, I see the excite-

ment on their faces, the joy in their eyes, as they came to appreciate

something fresh was dawning on them. For them, learning was a turn-

on. If they happened to be doing things pretty well, they wanted to

know why. If they happened to have had things quite wrong, they

wanted to know even more. They delighted in knowing we can get

better.

What I feel honored to have experienced in Adler, Bell,

Burciaga, Bellow, Binder, Bruner, Mabry, Mendez, M ´onica, Nerny,

Sullivan, Warren—and in the others I’ve named, and in the many

wonderful people I’ve not—I sensed in one encounter with John Hart-

ford. A renowned and endlessly sought-after musician, a legend in

bluegrass and country music, Hartford could play the fiddle and the

banjo with the best ever. He could and did sing, alone and with others.

And he could write wonderful songs, some hauntingly beautiful.

“Gentle on My Mind” is the work of a gifted poet.

Decades ago, hanging out, I played a full night’s worth of music

with about five people in a tiny room in a friend’s small apartment.

One of the folks was Hartford. He had only his fiddle; he knew only

one other person in the room; he knew only a small number of the

songs (many original and many obscure compositions) the others of us

would play. Not much was said that night. It was almost all music, one

song leading to another, folks taking turns with their voices or on their

other instruments.

Hartford never took the lead. Instead, he would simply listen for

a bit to a song, then gently weave in his fiddle, always careful to be a

complement to whatever the lead singer or instrumentalist was trying

to make happen, playing off everyone in the room. To experience

Hartford just wrap his fiddle playing around what the rest of us were

doing proved magical. From my teenage years on, I had known some

first-rate studio musicians and some well-known groups. They lit me

up and taught me lots. Hartford, though, was other-worldly. He was

quieter than low-key, more generous than generous, and an utterly

brilliant musician. He always enhanced what the rest of us were doing

in that room that night, in ways that made me appreciate why every-

one—in every line of music—wanted to experience the high of playing

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328 CLINICAL LAW REVIEW [Vol. 24:247

with him.

When Hartford died of cancer in June 2001, Neil Strauss’ obitu-

ary appeared in the New York Times.

Like the best of obituaries, the

entire tribute is worth a read. Or, if you’re like me, fairly routine

reads. Hartford had many sides. He had studied art, had worked as a

commercial artist, a disc jockey, and became a licensed riverboat pilot.

He could be very private, now and then public, and had done some

acting and some voiceovers (including for Ken Burns’ “Civil War”).

And he had recorded a ridiculously large number of albums, before

and especially after he got famous. And always he was collaborating,

with famous folks and not-so-famous folks.

Strauss describes Harford as already having been diagnosed with

cancer in the 1980s, and “nonetheless regularly invited local musicians

over for bluegrass picking parties, where he would play violin and re-

gale them with his homespun personal philosophy, riverboat adven-

tures, and tales of bluegrass masters. Even after he lost control of his

hands after a series of engagements in Texas in the spring [of 2001], he

continued to host picking parties, where he watched instead of

played.” I could easily imagine the picking parties. I am only left to

wonder how the same man who said no more than thirty words that

one night he played with us strangers could readily “regale” people in

his own home. Wish I could have been there.

But one passage in the obituary always sticks with me, about

Hartford and so many I’ve known wonderful at what they do. Straus

writes:

Surprisingly, Mr. Hartford always considered himself a medio-

cre musician. He continued to release records like “Retrograss,”

with Mike Seeger and David Grisman, and was working on a book

about the blind fiddler Ed Haley.

But when he learned several years ago that death was ap-

proaching, he became obsessed with practicing, returning to his first

instrument, the fiddle. He realized that what had always attracted

him to both riverboats and music was craftsmanship, and worked on

becoming as good a craftsman as possible in the time he had left.

In my judgment, and more importantly in the judgment of the

best musicians, Hartford was crazily wrong in his self-assessment. But

his illness made him appreciate all the more what mattered. What al-

ways attracted Hartford to many things he did, especially music, was

working on becoming as good a craftsman as possible in the time he

See Neil Strauss, John Hartford, Composer of Country Hits, Dies at 63, N.Y. T

IMES

(June 6, 2001), http://www.nytimes.com/2001/06/06/arts/john-hartford-composer-of-coun-

try-hits-dies-at-63.html.

Id.

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Spring 2018] Transform Legal Education 329

had. Those bluegrass picking parties he hosted when he was very sick

must have been about the excitement and joy of playing with and

learning from others. And just maybe that night he spent with us de-

cades ago was about that too. Even with unfamiliar folks, hardly in the

same league as musicians, Hartford was about helping make music

and learning along the way. A craftsperson as artist, an artist as

craftsperson.

* * *

To be sure, on a regular basis, different specialties appear to re-

quire a greater command over some capacities compared to others.

Great courtroom lawyers ought to be good on their feet. Great deals

lawyers ought to be able to craft and review language with the (vari-

ous sorts of) precision required. Great children’s advocates ought to

be able to listen well. Yet far too much can be made of these capaci-

ties and far too little of others. If a trial lawyer at the Public Defender

Service cannot size up a situation well, being an impressive-sounding

speaker does little good persuading a jury. If a transaction lawyer at

Kirkland cannot negotiate particular deal points others would have

realized, precision drafting proves to have severe limits. If an advocate

for a child Pegasus Legal Services for Children represents cannot ef-

fectively play the endless power games of New Mexican state and lo-

cal politics, all the great listening imaginable will help identify only the

gap between what was needed and what was achieved.

Rather than teach these capacities in one-off and otherwise in

irregular ways (say, stressing writing on first-year memoranda, speak-

ing in moot court, listening in interviewing courses), rather than half-

burying or even never explicitly labeling key abilities (say, sizing up a

situation), rather than presuming students already know or must fig-

ure out on their own “certain fundamentals” (say, the standards by

which others will regard a lawyer as “reading discerningly”), the best

of clinical programs have recognized the need to surface these capaci-

ties, to define and illustrate them in various illuminating ways, and to

develop conventional and experimental methods for drawing out what

already is in students and what must be developed and refined. They

have built learning opportunities both focused and demanding. And,

over time, especially drawing upon a wide assortment of influences

and insights, students and teachers and others have deepened and

broadened and sharpened these methods and the aims achievable

through them. We in legal education are already able to provide this

training and to improve—in conscious and shared ways—as the years

unfold.

That it can (and must) be done does not mean it’s not difficult. To

train students in such capacities means cutting sharply against the

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330 CLINICAL LAW REVIEW [Vol. 24:247

grain, counteracting the tacit image of lawyering that now plays at a

low hum behind all of legal education. Though law and not lawyering

is front-and-center in modern law schools, don’t legal educators nev-

ertheless send messages?

There is no such thing as neutrality in any

space, let alone one with such a mystique and a reputation as law-

yering. Attuned to this background hum, students graduate thinking

that lawyers need look from no perspectives than their own and their

clients’ to understand problems. That collaboration is pointless and to

be avoided. That legal research will tell them all they need to know.

That the menu of strategic options is necessarily limited to the legal

and that legal solutions are inherently effective solutions. That organi-

zational structure is a limited menu, perhaps containing only large and

small firms. That they need know no more than they learn in law

school and in their field of expertise. Graduates go out into a profes-

sional world that far too often (and erroneously) agrees with them on

each of these points. And so many are never truly superb.

Some may think I’m inventing or overblowing the background

hum—that no such messages are being sent. But are we really going to

claim legal education is agnostic on these issues? Surely we don’t

claim the profession is. Every law student who has been to a job inter-

view can tell you otherwise. Indeed, even in such a self-proclaimedly

sacred space as public interest fellowship applications, the message is

clear: Come to the application process knowing all the answers. “What

is your two-year plan to resolve issues around crimmigration in Los

Angeles? What actions will you take at three months, six months, nine

months, a year?” Any applicant bringing an “I don’t know” to the

process will find himself out of the running before he knows it.

Fortunately (in the narrowest, instrumental sense), applicants to

both private sector jobs and public interest fellowships for three years

have been socialized, perhaps even formally trained, to give the over-

blown answers for which those in charge are looking. Those few stu-

dents who’ve had the benefit of the best of clinical courses are able to

see through it all and be aghast. They either give the answers sought

to get in the door, or they abandon the fellowship hunt in favor of

greener, but less certain, pastures.

Are these the sorts of lawyers we want to relegate our students to

being? Are law school graduates untrained in these capacities the

For elaborations of how a traditional curriculum focusing on law inevitably sends

strong messages about lawyering, see, e.g., Howard Lesnick, Infinity in a Grain of Sand:

The World of Law and Lawyering as Portrayed in the Clinical Teaching Implicit in the Law

School Curriculum, 37 UCLA L. R

. 1157 (1989); L ´opez, Anti-Generic Legal Education,

supra note 47; L ´opez, supra note 31.

See Robert Ian Stringham, Reflection #6 for Rebellious Lawyering (Jan. 9, 2018) (on

file with author).

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Spring 2018] Transform Legal Education 331

sorts of lawyers we want to turn loose on the world? Why wouldn’t we

want at least to offer students a choice and a chance? Help them build

the capacities they’ll need to be truly superb? To be sure, unless and

until this sort of education becomes standard, having these knowledge

stores will not immunize students from having to deal with the top-

down, lawyer-as-expert conceit that props up so much of the legal pro-

fession. But they’ll be far better off—and far better lawyers.

III. D

EFINING

FRESH

MBITIOUS

EACHING AND

EARNING

With their focus on lawyering, especially with the problem-solv-

ing developments in formally unrelated fields of work, modern clini-

cians (and some non-clinicians) and all their students did not take long

at all to openly challenge how legal education had long defined ambi-

tious, rigorous and effective training. Perhaps as early as the late

1960s, perhaps in decades earlier still, and certainly by the early 1970s,

through some mix of formal study and trained intuition, the best

clinical programs put into action training that reflected an educational

approach at one with the problem solving at the heart of all law prac-

tice. The training they developed and implemented even took account

(if only half-consciously) of the challenge the rebellious vision already

had issued to the regnant.

But subsequent generations, from the 1980s through today, did

far more still. Aware that legal education had for some decades

seemed stuck with some mix of mainly Socratic case method

and

seminars, with a dabble of independent research credit, these clini-

cians and non-clinicians and students did their best to open up to

largely scorned and ignored possibilities, discoverable in their own ex-

periences, learnable from others, imaginable to the open-minded. In

the process of opposing the status-quo-plus brand of law school, they

extended, deepened, and strengthened the Alternative Vision.

A. Opening Up To Scorned and Ignored Possibilities

Rather than presumptively regarding the everyday work of di-

verse lawyers as beneath or beyond what law schools should entertain,

why not put as much into play as possible? And why not put all this

into play refusing in advance to pre-define what that might end up

looking like and meaning? The best clinical programs presumed, accu-

rately, that close study could discover in the standard patterns and

even the seemingly banal rituals of law practice complex empirical

I use the term “Socratic case method,” and speak of the Socratic method and the

case method in tandem, because in legal education the methods are typically paired (and

have been since 1870), with many limits and evils, even from the diverse perspectives of

defenders. See L´opez, supra note 5.

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332 CLINICAL LAW REVIEW [Vol. 24:247

and normative assumptions. Ought not these patterns and rituals be

surfaced, described, examined closely? Ought not they be taught and

learned and, at the same time, scrutinized and challenged? And cer-

tainly in the more advanced practices of experts, might not teachers

and students identify aspects that could prove both central to the

training of novices and teachable and learnable during three years of

training? Ought not all those aspirations be understood as wildly more

doable than ever envisioned by all those who have taught only (and

only ever have thought of teaching) a steady diet of Socratic case

method doctrinal courses and some seminars?

B. Problem Solving—Method And Aim

It is difficult to overstate the importance of live training, simu-

lated training, and a combination of both, whether at once or in se-

quence. Teachers simply must put students into the diverse roles

lawyers fill, either in live or in life-like situations. Only then can stu-

dents experience the situations lawyers routinely face and begin to

grasp while in training the problem solving at the heart of all they will

do as licensed lawyers. Only then can students be afforded “the op-

portunity to learn how to learn from experience”—not in an ad hoc

and half-conscious fashion, as they might currently in the course of

their summer employment, but systematically through explicit tech-

niques suited to the task.

If at the beginning of the 1970s, for some purposes, Gary Bellow

stressed live-client clinics and Tony Amsterdam emphasized simulated

life-like clinics, they simultaneously appreciated and employed both

methods of having students train in and reflect on the diverse work

lawyers do with clients and with diverse others. At bottom, clinical

teachers and clinical students and their allies realized then what tradi-

tionalists continue to ignore or deny: Problem solving is as much the

method as the aim of any ambitious and effective legal education—in

every class, no matter the size, through every learning and teaching

opportunity.

C. Teaching As Coaching

Teaching, at its most ambitious, amounts to the best sort of coach-

ing. If problem solving is both means and ends, if putting students into

role in live and life-like situations must be at the heart of all three

years of law school and a career of continuing education, then teach-

ers must be all that great coaches have always been.

They must plan

In our Lawyering for Social Change Concentration at Stanford Law School, and in

the ethos that influenced other programs during the 1970s and right up through the best of

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Spring 2018] Transform Legal Education 333

and implement “deliberate practice,” aimed directly at particular

dimensions and details of problem solving. They must provide stu-

dents all they need to perform, to accept forthright feedback, to re-

flect deeply on how well they did (measured by shared examples and

articulated standards), to adapt to what they had learned, and to pre-

pare themselves yet again (and again and again) to perform, aiming to

produce in diverse roles still better results.

But understanding that the best teaching is like the best coaching

benefits coaches every bit as much as students. We train students to

hold us accountable, just as we insist they meet their obligations. In so

doing, we routinely face the gap between our aspirations and our cur-

rent practices. Well-prepared and engaged students engage the

teacher in ways routinely doable and immensely important. Like the

greatest coaches, teachers must remain always open to and excited

about learning. That never ends, and if and when it does, teachers

should consider finding another job.

In the time spent together, teachers as coaches ought to put stu-

dents through “drills.” They should drill, and they should drill rou-

tinely. While drilling, teachers as coaches should employ great

explanations, vivid demonstrations of what coaches expect, and great

examples of insightful reflections about both drilling and preparation

for drills. Teachers and students should drill with all those elements

melded together precisely in order to produce high quality perform-

ance as the new standard they all sought to achieve. If we inevitably

default to the mean (in any and every aspect of problem solving and

of life), then we ought to aim smartly, for open and defensible rea-

clinical education in 2018, the idea of teachers as coaches proved central to our planning,

implementation, feedback, and improvement. As I wrote:

[T]eachers teach by a sort of coaching—by designing, by getting students ready

for, through, and reflecting on a set of (broadly defined) practice simulations.

In this conception of the big classroom, well-prepared students trigger the very

possibility of a reciprocally reflective relationship with the teacher. It is a rela-

tionship where it becomes apparent that teachers do learn and students do

teach, where the aspiration is to share and exercise power responsibly, and

where everyone’s engaged risks change along the way.

L´opez, Anti-Generic Legal Education, supra note 47 at 316. And, later, in the same article:

And, like any well-conceived practice (including the most extraordinary teach-

ing now going on in the big classroom), these workshops would be outfitted for

the task of apprehending and commanding a practice with students learning by

doing, teachers teaching by a sort of coaching, and each challenging the other

as together they work through, critique and imagine alternatives to available

bodies of knowledge.

Id. at 378.

See Gary Bellow, On Talking Tough to Each Other: Comments on Condlin. 33 J.

EGAL

DUC

. 619 (1983); Robert J. Condlin. Clinical Education in the Seventies: An Ap-

praisal of the Decade. 33 J. L

EGAL

DUC

. 604 (1983); Robert J. Condlin, “Tastes Great,

Less Filling”: The Law School Clinic and Political Critique, 36 J. L

EGAL

DUC

. 45 (1986).

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334 CLINICAL LAW REVIEW [Vol. 24:247

sons, to drill repeatedly, aspiring to realize the standard we regard as a

worthy mean.

That absolutely need not signify, as some insist, that the training

of lawyers necessarily leads to unending conformity. Making some-

thing “second nature” permits the very planned improvisation central

to the best (and, yes, the most radical) problem solving. What is true

of jazz and futbol and dance (and so much more) is every bit as true of

lawyering and teaching and learning.

D. Learning To Be “Coaches On The Floor”

If teaching resembles the best sort of coaching, then learning

looks like everything implicated in aiming to be “a coach on the

floor.” In the vernacular of sports that has now spread to many di-

verse realms, students have to embrace learning to be problem solvers

and learning how to coach themselves and others about problem solv-

ing. To do so, students like teachers must initially open up to being

coachable—to permitting others to bring out the best in them, and to

accept feedback not just from their teachers but from their peers. Ac-

cepting critique is no small matter, for any of us. Students must learn

to prepare smartly for the real or simulated performance, to accept

feedback on what they do well and what they must do better, to pre-

pare again to perform aiming for still higher quality performances.

At least as important as an openness to being coached is an open-

ness to coaching. In order for coaching on the floor to be truly effec-

tive, to take a deservedly central place in the learning process, it must

be practiced in the classroom by every student in relation to every

other. Students must willingly and repeatedly open up their own

knowledge stores to their compatriots, understanding that their contri-

butions will be reciprocated in kind and that their own knowledge will

grow as a result of the exchange.

At the same time, they have to focus on learning to see in per-

formances, including their own, what their teachers (and increasingly

their fellow students) can see. To see equips the students, as it does

the coach, to commend, to correct, to encourage—to coach both

themselves and each other into ever-better performances. To be sure,

commending and correcting and encouraging entail their own chal-

lenges, complete with ideas, skills, and sensibilities for how to do all

this well. Yet seeing (in the full sense) serves as the point of departure

for students learning to be coaches on the floor just as it does for

teachers learning to coach well.

If a student can see what is effective in her own work, she can

repeat and elaborate on those techniques, testing their stretch and

their boundaries; seeing her classmates’ strengths allows her to emu-

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Spring 2018] Transform Legal Education 335

late their games and incorporate the best aspects into her own; and

seeing holes and weaknesses allows her to continue working to fill

them, in both her performances and those of her fellow students, as

they coach each other and themselves up the learning curve.

E. Teaching and Learning Like This—Doable, Intensive,

and Not For Everyone

To reach the heights sought, this approach to great training re-

quired certain fundamentals often overlooked or at least largely unap-

preciated. Much as everyone interested in clinical legal education

focuses on the “practices” with the teacher (the live and simulated in-

role performances), what gets too often lost is the preparation every-

one must undertake to make these experiences all they should be.

Teachers must make explicit and available everything imaginable to

equip students to prepare and perform well. And students must ac-

tively engage everything made available to prepare (and practice in

preparation) for live and simulated work.

1. Preparation—For Teachers and Students

Decades have demonstrated this sort of preparation is eminently

doable. Yet equipping others to prepare, and taking full advantage of

the opportunity to prepare, requires painstaking, thorough, and imagi-

native work. For every performance that goes well, not just for one

student but for many, peek behind and examine the preparation by

the teacher and the students. Long before the term “flipped class-

room” became trendy, the best clinical programs had already imple-

mented, experimented with, and gained an admirable command over

all of the very best that modern expression encompasses.

So had

coaches and English teachers who, earlier still, took the same ap-

proach to great and effective education.

And the Alternative Vision

For a superb recent contribution to how to think about and implement and improve

clinical legal education, in my view a “must-read” for all students as well as all teachers, see

RYANT

ET AL

., supra note 3.

For a small sample of the growing literature on the “flipped classroom,” see

ONATHAN

ERGMANN

& A

ARON

AMS

, F

LIP

OUR

LASSROOM

: R

EACH

VERY

TU-

DENT IN

VERY

LASS

VERY

(2012); L

UTZ

-C

HRISTIAN

OLFF

& J

ENNY

HAN

LIPPED CLASSROOMS FOR LEGAL EDUCATION

(2016); B

EST

RACTICES FOR

LIPPING THE

OLLEGE

LASSROOM

(Julee B. Waldrop & Melody A. Bowdon eds., 2016) (containing

nine examples of flipped classrooms); William R. Slomanson, Blended Learning: A Flipped

Classroom Experiment, 64 J. L

EGAL

DUC

. 93, 95 n.13 (2014) (adopting Bergmann &

Sams’ “simplified description of a ‘flipped’ classroom” as one where “(a) the professor’s

lecture is delivered at home and (b) the student’s homework is done in class”); Ashley A.

Hall & Debbie D. DuFrene, Best Practices for Launching a Flipped Classroom, 79 B

ROF

. C

OMM

. Q. 234 (2016); Alex Berrio Matamoros, Answering the Call: Flipping the

Classroom to Prepare Practice-Ready Attorneys, 43 C

. U.L. R

. 113 (2015).

For an illuminating study of John Wooden’s coaching and teaching, see Ronald Gal-

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336 CLINICAL LAW REVIEW [Vol. 24:247

borrows openly and proudly from folks in every imaginable realm

Including from bus driving instructors like Eyvonne Eagles and

Sean Collins, lionhearted people who train their students on the road.

These instructors’ confidence in their pupils and in their own teaching

ability is such that they ride unsecured in buses driven by students

who’ve never before piloted anything larger than a sedan. Trainees

drive buses in the yard on their very first day, and a few days later are

out on city streets. Every moment on the bus is a teaching moment—

not just for the student driving, but for the rest of the class riding

along. “All right, what’s the protocol here?” “Don’t forget to fan your

brakes!” At first, every turn and lane change is coached, and then the

instructor sits back until there’s a sign of trouble. Eventually the

trainee is handling all the trouble on her own.

Including from ballet teachers, like Madame Karin von Arold-

ingen, who taught at the School of American Ballet. Not unlike lion-

hearted bus driving instructors Eyvonne Eagles and Sean Collins,

Madame was bold: She taught with kindness in a place that was often

cruel, with joy in a school that prized obedience and precision. While

happiness and lightness might not seem brave, they were. She taught

her young dancers that rigor was not enough. Rote practice was just

that, unless it engaged the light and the joy that movement and music

gave you. Madame didn’t pine for her days of performing—at least

not in front of students—and embraced, indeed seemed to love, her

new role as a teacher. Her presence, her ability to be present in the

studio and the care with which she taught made her young charges pay

better attention to exactly what they were doing in exactly that mo-

ment. She essentially taught the same class as all the other teachers—

the same repetitions of tendus, adagios, turns, and jumps; but it felt so

different. Madame critiqued as often and as pointedly as the other

teachers, but then she would laugh or make a little joke, not to suggest

the work wasn’t important, but as if to say, “Enjoy! We are trying to

get better at something we love!” All the young girls in that room,

wearing the same colored leotards and the same pink tights, fiercely

competing against each other were, for the suspended moment of her

classes, working together at something they loved. With a little less

fear, and less fear of humiliation in front of their peers, they could

absorb what Madame said to them, and what she said to the other

girls, experiment with it, and try to dance it.

Including from tennis coaches, like Rance Brown and Stella Sam-

limore & Roland Tharp, What A Coach Can Teach a Teacher, 1975-2004: Reflections and

Reanalysis of John Wooden’s Teaching Practices, 18 T

PORTS

SYCHOLOGIST

119

(2004). For the authors’ earlier treatment of Wooden’s coaching, see Roland Tharp & Ron-

ald Gallimore, What a Coach Can Teach a Teacher, 9 P

SYCH

. T

ODAY

74 (1976).

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Spring 2018] Transform Legal Education 337

pras, who coach the UCLA Women’s Tennis Team and run week-long

camps for kids. Like Madame and lionhearted bus driving instructors,

“Coach Stella” and “Coach Rance” somehow manage to coach young

kids who range from never having picked up a racket to nationally

ranked, all in the very same camp, often side-by-side, and to focus

everyone’s attention (everyone’s) on routinely practicing the basics,

on bringing a joyful attitude not just to each day but to each and every

drill, and on the importance of profoundly appreciating that “competi-

tion is an everyday matter” and “pressure is a privilege.” Coach Stella

and Coach Rance are outwardly unalike with their campers and their

staff of young talented co-coaches, one more openly talkative and the

other quieter and even perhaps bashful, and yet they bring, alone and

together, the same remarkably caring focus (dare I say loving focus,

especially of big-time Division I coaches, especially given all I know

about big-time athletics—yes, I dare insist on saying loving focus) on

each and every player, on the rhythms of the day and the week, and

on how to teach kids to compete intensely while remaining able to

laugh at themselves and cheer on their competitors.

Like Eyvonne Eagles and Sean Collins and Madame Von Arold-

ingen, Coach Stella and Coach Rance can do all this, of course, be-

cause they spend massive amounts of time resourcefully preparing.

For each camp and each camper, coaching their young assistant

coaches on how to teach their way, organizing schemes that permit

campers to move from drill to drill, improvising whenever they feel

improvisation seems right. Yet always inventing in the way celebrated

by Duke Ellington, understanding that there’s only “planned improvi-

sation,” at least in great jazz and great coaching. Adaptions on adapta-

tions on adaptations prove something to behold, both genuinely in the

moment and the product of the serious homework, the sort only those

who treasure teaching seem willing to do, always hoping to get better

themselves as coaches so that those they teach can learn more, with

more love of themselves, and finding endless joy in the very competi-

tion they must confront.

Every school at every stage of life should manage somehow to

feel like the week-long camps Coach Stella and Coach Rance run, like

Madame’s dance training, like Eyvonne Eagles’ and Sean Collins’

teaching of bus drivers.

2. Teaching People, Not Teaching Things

No one should deny how demanding magnificent preparation can

be. And that quality of preparation is a routine part of great teach-

ing—not just something teachers do “only at the start of their ca-

reers.” Yet, exacting as this sort of preparation can be, many consider

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338 CLINICAL LAW REVIEW [Vol. 24:247

shifting the very focus of great education to be the most challenging

aspect of the vision of education embodied in clinical programs.

Rather than teaching contract drafting, cross-examination, or negotia-

tions, to take only obvious examples, the best clinical programs totally

embrace that they’re training individuals and groups how to draft con-

tracts, conduct a cross, and negotiate ably. They’re not teaching

“things,” they’re teaching people.

This change of focus strikes some as no big deal and strikes others

as impossible. Yet it is a big deal, and it has been proven possible. It’s

a big deal and possible not only for 8–1 ratio clinics but for everyone

teaching. Those non-clinicians and clinicians assigned to teach large

classrooms courses, and who have done so through a problem method

drawing upon and paralleling clinical methodology, prove capable of

knowing how the students as a whole are doing and of diagnosing ac-

curately the strengths and weaknesses of individual students. I know

because I have received years of these “progress reports,” and these

assessments have proven uncannily accurate. Remarkable teachers

like Patrick Goodman and Pavel Wonsowicz give me a strong sense of

the scouting reports that, say, the resourceful Becky Hammon now

gets to see as an assistant coach in the exceptional organization built

by the San Antonio Spurs.

When teachers already have prepared well and already have

equipped students to prepare well, they can concentrate on what they

can discern in what students produce. (Produce in writing, in simula-

tion, in real-life situations, in reviews of videos, in various meetings.)

And through these perceptions, teachers can begin to determine with

increasing confidence how to help students train so as to shore up and

eliminate their weaknesses and enhance their strengths. Yes, of

course, appraisals of that caliber quality entail close study of students,

a never-ending evaluation process, systematically pursued through

well-targeted methods. But the teaching and the learning become all

the more intellectually and emotionally exciting and satisfying when

everyone focuses on “training people” rather than “teaching a topic.”

That means, in the shorthand I have heard some of the very best

coaches and teachers use, that they must learn the students before

they teach them. Of course, these coaches and teachers aim in ad-

vance of meeting students to learn all they can about them. But they

For illustrations of an illuminating literature by and about teachers, see, e.g., How-

ard Lesnick, The Practice of Teaching, The Practice of Law: What It Means to Practice

Responsibly, 29 P

ACE

L. R

. 29 (2008); Christine N. Cimini, Bridget M. McCormack &

Michael Pinard, Kathleen A. Sullivan: A True Teacher’s Teacher, 8 C

LIN

. L. R

. 13 (2001);

Ann Shalleck, Clinical Contexts: Theory and Practice in Law and Supervision, 21 N.Y.U.

. L. & S

. C

HANGE

109 (1993-94).

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Spring 2018] Transform Legal Education 339

mean, too, that even as they teach their students, they’re always scout-

ing, looking to understand each and every student, from every per-

spective. Being able to offer a candid scouting report does not at all

mean these coaches and teachers don’t care about their students, that

they value them only on the basis of their abilities. Natalie Hirsch, the

Artistic Director of The 52nd Street Project in New York City, gushes

with love for each and every one of her students, just as the famously

grumpy Greg Popovich does, at least to those he trusts, and every

once in a long while even to the public.

In the Alternative Vision, Natalie Hirsch and Greg Popovich es-

tablish the floor and not the ceiling when we speak of teaching people

and not things.

F. Neutralizing The Virus Of The Curve

The sum total of the lessons learned so far paint a picture of legal

education that is, at once, highly ambitious and very much within

reach. Yet standing in the way, at most law schools across the country,

is the curve, which for many is at the very heart of law school. Simply

put, the curve is destructive to learning and should be eliminated.

The claim that the curve should be done away with is not so out-

landish as all that. Criticism of the curve historically has come from

many quarters, including from students decrying its inherent subjectiv-

ity and its opaque operation and from professors whose grading hands

are forced by school policies. Indeed, some schools have done away

with the curve altogether.

Yale, for example, assesses all first-year

students on a pass-fail basis in their first semester, distributes Honors

and Passes purely per teacher preference thereafter, and neither re-

leases a curve nor ranks students.

Some might argue that only Yale

and schools of its ilk can get away with such practices. After all, even

the lowest-performing Yale student still went to Yale. But a trend

away from the curve is visible in other quarters as well. Many clinics

have long been graded on a pass-fail basis, and at many schools, the

curve only takes hold once class size crosses a certain threshold, al-

lowing small seminars on diverse topics to be carried on outside its

reach.

Stanford and Harvard are examples. See Stanford Law School Grade Reform—Fre-

quently Asked Questions (FAQ), Stanford Law Sch. (Oct. 1, 2008), https://law.stanford

.edu/press/stanford-law-school-grade-reform-frequently-asked-questions-faq/; HLS Grad-

ing Policy, Harvard Law Sch., http://hls.harvard.edu/dept/ocs/employers/hls-grading-pol-

icy/?redir=1 (last visited Jan. 26, 2018).

J.D. Program, J.D. Degree Requirements, Y

ALE

., https://law.yale.edu/

study-law-yale/degree-programs/jd-program/jd-degree-requirements (last visited Jan. 26,

2018); J.D. Program, The Degree of Juris Doctor, Y

ALE

., https://law.yale.edu/

study-law-yale/degree-programs/jd-program (last visited Jan. 26, 2018).

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340 CLINICAL LAW REVIEW [Vol. 24:247

The most salient criticism of the curve, and the most powerful

reason for banning it across the board (including in large doctrinal

classes), is that it stifles learning. By mandating that students be evalu-

ated based solely on how well or poorly they do in relation to each

other, legal education as currently iterated operates to discourage stu-

dents from sharing their knowledge through mutual coaching. Why on

earth would a right-minded student, whose summer and post-gradua-

tion prospects depend in large part on her grade point average, coach

those around her to improve their performance? And located as she

necessarily is in this closed, competitive mindset, how likely is she to

be open to absorbing any knowledge dropped by her competitors, to

appreciating any of their ideas, skills, and sensibilities, incorporating

them into her game?

Not only that, but the curve is at odds with the very practices of

teachers we should most be encouraging. When faced with the curve,

a teacher who drills her students until they all achieve mastery, who

scouts students and attends to their weaknesses, and who successfully

imparts all she set out to teach is left with the unenviable task of sepa-

rating her students by a point or two and assigning some students

much higher grades than others. To avoid this dilemma, a teacher

might get a good curve by giving a nearly impossible exam, leaving

disappointed (and, in terms of future prospects, disadvantaged) some

students who mastered the material and rewarding others who, by vir-

tue of possessing some set or other of qualities not systematically

trained up in the course itself, did better (or less poorly) than their

fellows.

Despite what law schools as a nearly-harmonious national chorus

proclaim, the curve is not an inevitability, not a necessary component

of a healthy legal education. There are workable alternatives. In addi-

tion to the pass/fail system of many clinics, uncurved seminars, and

entirely curve-less law schools like Yale, an intriguing alternative can

be found in the practices of a few undergraduate schools like UC

Santa Cruz, which until 2000 used a narrative evaluation system in-

stead of letter grades.

Some might protest that adopting an alternative system would

frustrate all concerned: students accustomed to or expecting a com-

petitive race to the top, employers seeking to evaluate candidates by

the numbers, professors forced to take the time to assess each student

individually rather than assigning points based on a rubric. And yes,

neutralizing the virus of the curve would be met with frustration and

Tanya Schevitz, UC Santa Cruz to Start Using Letter Grades, S.F. G

ATE

(Feb. 24,

2000, 4:00 AM), http://www.sfgate.com/education/article/UC-Santa-Cruz-To-Start-Using-

Letter-Grades-2773570.php.

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Spring 2018] Transform Legal Education 341

resistance, at least at first. But as increasing numbers of schools inocu-

lated themselves against the curve, the system would adjust, and as

recompense, everyone involved—students bolstered by coaches on

every side, employers enriched by capable new hires, teachers permit-

ted and encouraged to be effective—would benefit.

G. Coordinated And Sequenced Training

Without pretending to know with perfect confidence what each

student shall most need upon graduation and over the course of a ca-

reer, the best of clinical programs (and the best of every identifiable

concentration borrowing from clinical aims and methods) have still

recognized and acted upon the need to provide coordinated and se-

quenced training.

With each capacity in mind, they do all they can to

build learning opportunities to facilitate and demand development,

growth with lucidly explained and vivid images in mind, improvement

from wherever students begin at the start of law school to where they

might with training end up after three years. These programs and con-

centrations embrace, implement, and endlessly review in order to real-

ize aims and methods that established as standards that:

• earlier learning and teaching should provide the deepest and

strongest points of departure (thoroughly interdisciplinary, sys-

tematically empirical and theoretical, perpetually practical in

the fullest sense) precisely so that later learning and teaching

can and should draw upon and elaborate and reconsider;

• later learning and teaching should explicitly reinforce, extend,

and refine earlier learning in ways students and faculty can

identify, appreciate, articulate, and make full use of as in fact

and not just in principle “cross-fertilizing, reciprocally enlight-

ening, cumulatively reinforcing,”

• earlier and later learning and teaching should be self-con-

sciously synchronized so that teachers and students can re-

spond to and shape how learning opportunities (courses,

See, e.g., Anthony G. Amsterdam, The Lawyering Revolution in Legal Education, in

AMBRIDGE

ECTURES

(1985) at 11 (Frank E. McArdle ed., 1987). For instances of

fully coordinated and sequenced training, permitting students and faculty at Stanford and

CUNY to experience deliberate development, see, e.g., L ´opez, Anti-Generic Legal Educa-

tion, supra note 47; Howard Lesnick, The Integration of Responsibility and Values: Legal

Education in an Alternative Consciousness of Lawyering and Law, 10 N

OVA

L. J. 633

(1985); Lesnick, supra note 67; Charles Halpern, A New Direction in Legal Education: The

CUNY Law School at Queens College, 10 N

OVA

L. J. 549 (1985); Vanessa Merton, The City

University of New York Law School: An Insider’s Report, 12 N

OVA

L.J. 49 (1987).

The quote is from the remarkably gifted and dedicated Frank Michelman, who re-

ceives far too little credit for the demanding and superb work he did over years to trans-

form legal education. Frank Michelman, The Part and the Whole: Non-Euclidean

Curricular Geometry, 32 J. L

EGAL

DUC

. 352 (1982).

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342 CLINICAL LAW REVIEW [Vol. 24:247

independent research, and beyond) fit together, one after an-

other, side by side, and as a coherent regimen;

• earlier and later learning and teaching should be “in role,”

about lawyering in all its varieties, in which law and the legal

culture and the other circumscribing forces and their cultures

dynamically interact, grounded actually or through life-like

problems in the lives and work of particular people, within par-

ticular institutions, enhancing lasting growth of cross-cutting

capacities implicated in all problem solving; and

• earlier and later learning and teaching should unite the cogni-

tive, the practical, and the identity in all matters, as they are in

life so should they be in great training, condemning once and

for all seeing these dimensions or portals as separate, as se-

quential, as hierarchical, in any year in law school or in any

aspect of the practice of problem solving or the careers of

lawyers.

In all these convictions, clinicians and non-clinicians in legal edu-

cation borrow from the best of educational theorists, including the il-

lustrious Jerome Bruner, who deserves to be quoted:

[A] theory of instruction must specify the ways in which a body of

knowledge should be structured so that it can be most readily

grasped by the learner. “Optimal structure” refers to a set of pro-

positions from which a larger body of knowledge can be generated

. . . the merit of a structure depends upon its power for simplifying

information, for generating new propositions, and for increasing the

manipulability of a body of knowledge. . . .

Especially since clinicians and their allies and their students typi-

cally have occupied only a part of the second and third years, realizing

their aspirations has proven demanding. Even when some clinicians

and non-clinicians together managed, often through imaginative

means, to build a three-year sequence, the total number of units

proved limited compared to the total number required. The strongest

clinical and sequential programs at best created a vibrant counter-cul-

tural law school within a law school, aware of the mainstream still

embodied and evoked through the Socratic case method, yet less and

less defined by it. Indeed, the very mapping of the intersecting capaci-

ties has helped students evaluate their own needs and desires, and

with those in mind to choose for explicitly defensible reasons from

among curricular offerings. They advanced as problem-solvers-in-

training and as coaches-in-training. With the foundation provided and

pursued, to whatever degree each law school’s courses make feasible,

graduates appreciated what they must develop and why if they’re to

See J

EROME

RUNER

, T

OWARD

A T

HEORY OF

NSTRUCTION

41 (1966).

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Spring 2018] Transform Legal Education 343

become, over time, the superb lawyers they aspire to be.

H. As “Practice-Ready” As Imaginable

Of course law schools should aim to get students as “practice-

ready” as possible within the three years of law school. “Why wouldn’t

they?”

At least for a fleeting moment, law schools adopted the slo-

gan as a marketing pitch and deans as a talking point, all to demon-

strate legal education proved worth the price tag.

Yet in response to

both the term itself and the movement it engendered, some exper-

ienced law faculty have openly derided the idea and its feasibility.

Some have condemned “practice-ready” as contentless; others a “mil-

lennialist” fantasy. They urge law schools to ignore such a goal, to

mock it out of existence.

But in the Alternative Vision embodied by the best of clinical

programs, the term “practice-ready” makes obvious sense—and gets

demonstrable traction—intellectually, pedagogically, practically. Per-

haps critics of the targeted aspiration do not know how—or have not

themselves achieved success in trying—to meet this goal. That’s too

bad. Yet after more than forty-five years, the best of clinical programs

do know how to get students ready: trained through problems to be-

come problem solvers, across the capacities implicated in the diverse

roles lawyers fill.

Achieved through the most ambitious and effective training, be-

coming “practice-ready” leaves all graduates still very much on the

path from novice to expert. But what in heavens is wrong with that?

Of course there’s far more to be learned, about particular roles law-

yers fill, about problem solving going on all around us. Why settle for

less with legal education than we would in any other demanding edu-

cation?

If you’ve got decent chops going in, three years of terrific

training at a music conservatory may not at graduation yield an Ella

Seeing this aim as practicable and familiar, some clinicians already have tried seri-

ously to address the effectiveness of clinical and non-clinical education. See, e.g., Sympo-

sium, The Way to Carnegie: Practice, Practice, Practice—Pedagogy, Social Justice, and Cost

in Experiential Education, 32 B.C. J.L. & S

. J

UST

. 213 (2012).

See Margaret Martin Barry, Practice Ready: Are We There Yet?, 32 B.C. J. L.& S

UST

. 247 (2012).

For an example of those who insist no one knows what practice-ready means and

hence law schools should not try to and cannot realize this goal, see Harry W. Arthurs, The

Future of Law School: Three Visions and a Prediction, 51 A

LTA

L. R

. 705 (2013-14). For

those who regard the very aspiration as a millenialist fantasy, incoherent and ignorable,

see, e.g., Robert Condlin, ‘Practice Ready Graduates’—A Millennial Fantasy, 31 T

OURO

. 75 (2014).

Of course ambitious teachers within law schools have for decades emphasized the

contrasting training within other professional schools, from management to medicine. For

only one recent example, see Jayne W. Barnard & Mark Greenspan, Incremental Bar Ad-

mission: Lessons from the Medical Profession, 53 J. L

EGAL

DUC

. 340 (2003).

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344 CLINICAL LAW REVIEW [Vol. 24:247

Fitzgerald or a Sarah Vaughn. Neither will it likely yield a Wes Mont-

gomery or a Django Reinhardt.

The Alternative Vision does not deny the occasional presence of

genius—genius realized through smart hard work. (And Fitzgerald,

Vaughn, Montgomery, and Reinhardt were among the smartest, hard-

est working people we might ever encounter.) Still, three years can

make a student “performance-ready” and teach how to learn from ex-

perience and everybody and everything else. Much as we should sanc-

tify each day we get to hear Fitzgerald and Vaughn, much as we

should feel astonished by Reinhardt and Montgomery, take a night to

have your mind blown by the Pat Malones of this world. In unlikely

places, there is virtuosity out there to be discovered.

I. Preparing Students To Pass the Bar

What doubtlessly will prove far more inflammatory than embrac-

ing “practice-ready,” especially for elite and want-to-be-considered-

elite schools, is this public claim made by the best of clinical programs:

Law schools absolutely should shoulder the burden of preparing their

graduates to pass bar examinations. No, I do not mean in the fashion

we long have treated as the norm where law schools confidently insist

their graduates have learned through the Socratic case method how to

think like a lawyer, remember this or that about some doctrinal areas,

and know plenty well enough how to prepare themselves through

commercial bar courses. (Insisting that the best preparation for the

bar is to take still more Socratic case book courses on bar topics is

simply nonsense on stilts.)

Instead, I mean in the ambitious sense of offering training during

law school years targeting the bar exam as part of the intellectually

bold and practically forceful education in the problem solving at the

heart of all lawyering. And this ambitious training should be available

to every law student, not just those struggling grade-wise in law

school. Learning to pass the bar can be and demonstrably has been

made a natural part of learning through the problem method how to

be a practice-ready problem solver.

That law schools should prepare students for the bar exam is both

an attainable and a compelling goal. At the end of the day, law school

is and should be an intellectually ambitious vocational school—voca-

tional in the full-bodied sense of “a calling.” (All vocational schools

should help students achieve their calling.) Part of what law schools

must do, if they’re as responsible as they claim to be, is to arm stu-

dents with the chops it takes to become certified in the trade. For law

schools to disclaim this obligation—to point to the availability of com-

mercial bar courses and faux loftier goals as reasons for the paucity of

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Spring 2018] Transform Legal Education 345

practical preparation—is utterly to fail in their role and in their obli-

gation to students.

Rather than regarding training for the bar exam as beneath or

beyond law school education, the Alternative Vision regards prepar-

ing law students for final law school exams and the bar exam as natu-

rally entailed within its problem-solving method for teaching problem-

solving practitioners. Preparing students to pass the bar exam (Essays,

Performance Tests (PTs), Multi-State (MBEs)) can and should be un-

derstood as requiring the same approach to training students law

schools should and can provide to write high quality memoranda,

briefs, opinion letters, white papers, and judicial opinions, and still

more.

That approach, in turn, at the deepest level, presupposes and

makes explicit to students that “legal analysis” is a stylized variation

of everyday analysis, that legal analysis is one expression of the prob-

lem solving lawyers pursue in diverse roles they fill within contrasting

institutions across the globe, and that conceptual and concrete chal-

lenges they face on a brief, in a trial memorandum, on the PTs and the

essays are both parallel and manageable. Absolutely no one has to

agree with the bar’s decision to choose essays (much less MBEs) as

the guild’s way of protecting clients (and itself) in order to be able to

understand why in the Alternative Vision students graduate prepared

to pass the bar exam.

IV. B

ANNING THE

OCRATIC

ASE

ETHOD

In renewing support for the Socratic case method system, deans

and faculty members and leaders of the bar are perhaps at peace with

their born-again allegiance to the traditional Socratic case method.

Over the past ten or so years, they have tried on for size and perhaps

voted on more comprehensive critiques and options. Now, taking all

due credit for having intellectually entertained such appraisals and al-

ternatives, they have returned to the comforts of what they have al-

ways done.

In one important sense, that hardly separates deans and

faculty members and leaders of the bar from the rest of us. Unless

impelled, we all regress to the mean. Regressing to mediocrity, how-

ever, is another matter altogether. And celebrating the return of the

Socratic case method as the best of all homecomings is perverse, espe-

cially in the face of all the smart and hard work of the past decade.

Some utterly celebrate the Socratic case method as both a deeply

intellectual exercise and a realistic form of what lawyers look like dis-

For an extended description and analysis of how this happened, see L ´opez, supra

note 5.

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346 CLINICAL LAW REVIEW [Vol. 24:247

cussing a case.

Others publicly praise the Elliot-Langdell approach

but, in confidence, figure they can limit any damage resulting from law

school case method by surrounding that mainstay with diverse learn-

ing opportunities, expanding and strengthening the training future

lawyers receive. In 2018, many have returned to depicting the Socratic

case method as magisterially anchoring legal education, providing the

legitimating stability law schools need to deliver new emphases on

global and comparative and legislative and regulatory and leadership

aspects of the world into which law students will find themselves

practicing.

I regard this born-again explanation as hogwash, hokum,

malarkey, all fancied up as professional and intellectual erudition. In a

transformed legal education, aiming to train great problem solvers,

the Socratic case method is a hugely circumscribed and covert and

bewildered and bewildering way to teach lawyering, creating down-

ward pathologies others (clinicians, employers, clients, judges) later

must deal with.

To make matters worse, the Socratic case method

routinely treats law and politics as separate, ignoring (at least

marginalizing) widespread agreement shared by everyone from politi-

cal scientists to everyday voters to (plenty of) judges that ideology and

law are one, each defining the other—not defining the other out of

existence, mind you—but co-existing within the very doctrine “for-

malists” or “legalists” regard as sanctuaries of “pure law.”

But my disagreement goes straight to the heart of what the So-

cratic case method is supposedly ideally suited for or at least specially

designed to achieve. It is an unambitious and ineffective way of teach-

ing both particular bodies of doctrine in the moment and how to learn

law, as needed, over the course of a career. It is a confused and con-

fusing way (rather than a systematic and accessible way) of teaching

how to read, interpret, and use cases—scrambled surprises regularly

substituting for patterned techniques and conventions. And, yes, the

See, e.g., Larry Kramer, Stanford Law School Dean: We Aim to Teach Our Students

Not Just to Spot Problems, But to Solve Them, A.B.A. J. (Mar. 29, 2012), http://www

.abajournal.com/legalrebels/article/stanford_law_school_dean_larry_kramer/.

Richard Posner describes how, in thirty-four years of reading briefs as an appellate

judge, he finds “the vast majority of appellate lawyers remain immersed in the culture of

formalism that they imbibed in law school.” P

OSNER

, supra note 7, at 317.

Political scientists focus a great deal on the intermingling of law and ideology, con-

firming through empirical data what through scholarship and teaching realists and clini-

cians and members of the Critical Legal Studies movement insisted upon, what any savvy

lawyer knows thoroughly to be true, and what some highly regarded conservative judges

emphatically embrace as true. For illustrations of a vast literature, overwhelmingly ignored

in Socratic case method classes, see, e.g., R

ICHARD

OSNER

, H

UDGES

HINK

(2008);

ENNEDY

, supra note 7; U

NGER

, supra note 7; L

TORIES

(Gary Bellow & Martha

Minow eds., 1998); Frank, supra note 7.

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Spring 2018] Transform Legal Education 347

Socratic case method is a terrible and misleading way to teach stu-

dents to produce the very written legal analysis still celebrated by so

many as paradigmatically what lawyers must do well. Ban it,

immediately.

In condemning the Socratic case method, in insisting we must ban

it from legal education, I am likely parting ways with some of this

country’s greatest clinicians, non-clinicians, and full-time practitioners.

Alison Anderson, Joaquin Avila, Devon Carbado, Roy Cazares,

Peggy Cooper Davis, Carole Goldberg, Robert Goldstein, Jerry Kang,

Kris Knaplund, (the late) Miguel Mendez, Hector Ramon, Jon Varat,

Leah Wortham, David Wilkins come to mind, to name only some.

Many others from past generations, all worthy of deep respect, some

of whom regarded law school’s teaching of legal analysis (‘its logic’)

through the Socratic case method as the one part that did (and does)

work.

All these wonderful teachers appear to regard far more favorably

than do I the basic design of legal education. Certainly they believe

they can live with a model that does not ban Socratic casebook class-

rooms. They may even regard the Socratic casebook courses as neces-

sary and important in order to prepare students for the work they do

in short courses in the first year and many other clinical and non-

clinical courses in the second and third years.

As one of the coun-

try’s all-around brilliant teachers said to me only weeks ago, “I need

my clinic students to know what they have learned in Socratic

casebook courses.” (What she/he overlooks is that there are more in-

tellectually ambitious and more practically effective ways to teach all

students what at most some manage to learn from those classes.)

Disagreeing with eminent clinicians and imaginative non-clini-

cians and exceptional practitioners is not something I do lightly. But if

these wonderful people regard traditional legal education either as

meriting a robust role in transformed training or at least not necessa-

rily damaging students entering their second and third years and their

post-graduate careers, then we part ways. The Socratic casebook class-

rooms (together with mediocre seminars, colloquia and experiential

offerings) do not belong in any alternative vision worthy of our enthu-

siastic support.

Those who pay tribute to the Socratic method are plain wrong. In

praising the “critical cognitive thinking” purportedly entailed, they’re

empirically out of touch with or inaccurately describing what over-

whelmingly goes on in classrooms. They routinely fail to identify the

Perhaps the gifted David Wilkins writes this most emphatically. See B

W. H

EINE-

MAN

, J

., W

ILLIAM

F. L

& D

AVID

B. W

ILKINS

, L

AWYERS AS

ROFESSIONALS AND AS

ITIZENS

: K

OLES AND

ESPONSIBILITIES IN THE

ENTURY

(2014).

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348 CLINICAL LAW REVIEW [Vol. 24:247

huge gap between what they claim or presuppose the Socratic case

method accomplishes and the reality it most often achieves. And they

rarely pinpoint the inherent mismatch between what the Socratic case

method can accomplish, even in the hands of its most gifted practi-

tioners, and what students actually need to develop the capacity to

produce in writing the very legal analysis regarded as the gateway to

all else.

Of course I appreciate how much these teachers may simply be

cutting necessary deals. Compromise is inevitable in and central to

life. I know first-hand how true that is in all matters, including my

efforts with others to transform legal education, lawyering, and even

our democratic life. But we ought not conflate what “we can live

with”—and perhaps even “celebrate” legitimately as an advance over

the status quo—with what we must openly regard as noxious arrange-

ments. The modern version of the traditional Socratic case method is

substantially less intellectually high-powered and far less productive at

teaching legal analysis (“critical thinking”) and, as routinely practiced,

proves far more damaging to law students, lawyers and, yes, law

professors, than most apparently perceive or at least publicly

acknowledge.

To all those superb clinicians and imaginative non-clinicians and

acclaimed practitioners who either believe in or put up with the So-

cratic casebook method, I am explicitly saying what we too often fail

to say openly, directly, and firmly: In 2018, across the country, as in

1870 at Harvard, legal education is built around a poor idea, haphaz-

ardly implemented. In reality, the Socratic case method is mainly prac-

ticed in name rather than in fact, and often practiced poorly,

especially compared to how it has been long mythologized. Even in

the hands of the very best Socratic professors, among the best teach-

ers in the country, it is and shall remain an underachiever. We should

disaggregate the legitimate discernable aims within the Socratic

method—and I strongly believe there are some—and we should teach

them far better than we do.

Indeed, some people have already done just that—and they have

for decades. They include clinicians, academic support faculty, law-

yering faculty, and former Socratic case method teachers who have

switched to variations of the problem method. They include, at least

as prominently, a wide variety of students who since before 1970 fig-

ured out much more imaginative and valuable ways to learn than what

was happening in their classrooms. Instead of regarding these teachers

as the back-up practical and remedial team and these students as

shifty slackers, why not see that, for decades, they together and alone

have developed a parallel training regimen? And why not at least in-

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Spring 2018] Transform Legal Education 349

vestigate if the learning and teaching they have undertaken may not

entail more ambitious aims and more effective methods than the con-

ventional law school curriculum? Why not learn from, rather than dis-

miss out of hand, how we might get better and better? As students, as

teachers, as a team?

The stubborn refusal to recognize these superior and already

available substitutes has led me, for decades now, to wonder how best

to explain the resilience of the Socratic case method. Inertia plays its

role. Certainly many simply keep doing what we in legal education

have always done. And the force of continuing to do what we do inev-

itably reflects material interests and ideas. Yet that statement, true as

it is, almost slides by the challenge of describing what we’re all in-

volved (implicated) in. Especially when we consider those less-than-

scintillating Socratic case method courses that are bafflingly slow and

drawn out, yet still perplexing and obtuse—how exactly should we de-

scribe the phenomena? Decades ago, I took to calling it a “ceasefire,”

a treaty tacitly negotiated between students and faculty. Yet ceasefire,

even a strong-armed detente, does not now seem precise enough to

describe what I observe in others and experience myself as part of a

law school and legal education. And, at least for me, searching for an

apt representation feels crucial.

A. Realistic Portrayal

In the much celebrated portrayal of the 2018 Socratic case

method, Langdell’s approach to teaching students to think like law-

yers continues. To be sure, not many teachers today aspire to prove

law a science. Nor do they aim to make a body of doctrine self-evi-

dently cohere. Compared even to the 1970s and 1980s, decreasing

numbers rely exclusively on the “cold call.” Yet, goes the 2018

description, teachers still expect students to read cases, to prepare for

question-and-answer exchanges, to identify opposing lines of argu-

ment, to pick apart inconsistencies within reasoning, to identify “slip-

pery slopes” and exceptions that may swallow the rule, to mull over

the policies underlying doctrines, to deal with spare hypothetical vari-

ations on the decision, and with equally lean variations on the initial

hypotheticals.

Through such preparation, through such exchanges, through

note-taking and outline preparation, boasts today’s marketing of the

Socratic case method, students learn to think like lawyers. Students

learn to think in the paradigmatic legal ways of litigation and, as cele-

See, e.g., W

ILLIAM

M. S

ULLIVAN

, A

NNE

OLBY

, J

UDITH

ELCH

EGNER

, L

LOYD

OND

& L

S. S

CHULMAN

, E

DUCATING

AWYERS

: P

REPARATION FOR THE

ROFESSION

(Carnegie Foundation for the Advancement of Teaching 2007).

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350 CLINICAL LAW REVIEW [Vol. 24:247

brated, to think in a far broader sense deservingly labeled “critical

thinking.” They learn to think quickly, to improve their capacity to

perceive and give voice to argument, and to comprehend and learn to

live with an ambiguity defined pithily as “it depends.”

For all the changes that have transpired over the past 148 years,

in so many ways today’s Socratic case method still realizes Langdell’s

central goals: Students should come to appreciate how few principles

actually hold together entire bodies of doctrine and grow through the

first year (combined with second and third year Socratic case method

classes) to be able “to apply [these principles] with consistent facility

and certainty to the ever-tangled skein of human affairs.”

Or so

we’re once again told, in daily exchanges and, yes, at 2018 commence-

ment ceremonies.

That the teacher may “know the answer” in advance of a pre-

scripted discussion is openly acclaimed as a strength and not a weak-

ness, as the realization rather than the diminution of Socratic case

method. Before becoming Dean of Stanford Law School, Larry

Kramer, describing himself as “probably the most traditional person”

at N.Y.U. School of Law, encouraged other teachers to use the So-

cratic case method more, endorsing it as “the best way to teach stu-

dents to build an effective legal argument.” In his own words, “I pick a

student and have exactly the same discussion I would have with a

group of lawyers in a firm to discuss a case,” he said. “Except that I

have control, because I know the answers and I know where I want

the discussion to go.”

Perhaps that very predictability—the pre-scripted nature of the

unfolding and the outcome—is what has led far more teachers than

ever before to interrupt question-and-answer exchanges with mini-lec-

tures. If the exchanges you imagine and employ are pre-scripted, espe-

cially if both teacher and student experience the stilted quality of the

ostensibly “open discussion,” then why not just say what you want to

say instead of requiring students to provide fill-in-the-blank answers?

(Or, better yet, why don’t you just write it in advance, as part of pre-

paring students well?)

As a term, “Soft Socratic” came into being probably to signal re-

laxation of cold-calling and meanness of spirit, even if the latter is

See Christopher Columbus Langdell, Teaching Law as a Science, 21 A

. L. R

. 123

(1887).

Emily Bernstein, Law School Women Question the Teaching, N.Y. T

IMES

, June 5

1996, http://www.nytimes.com/1996/06/05/us/law-school-women-question-the-teaching

.html?pagewanted=all. For among the most staunch of modern defenses of the Socratic

case method, see, e.g., Philip E. Areeda, The Socratic Method), 109 H

ARV

. L. R

. 911

(1996); Paul D. Carrington, Hail! Langdell!, 20 L. & S

. I

NQUIRY

691 (1995); Clark Byse,

Fifty Years of Legal Education, 71 I

OWA

L. R

. 1063 (1986).

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Spring 2018] Transform Legal Education 351

simply better disguised. “Very Soft Socratic” emerged to describe lec-

tures, interrupted by some questions here and there. Soft Socratic

teachers still use casebooks, but they cannot be described as engaging

in the probing questioning trumpeted as emblematic of Langdell’s

creation.

Some teachers have been thoroughly flummoxed by the aims and

methods of the Socratic case method. Yet, most often, they keep those

thoughts and feelings to themselves. Or at most they share them with

a small circle of trusted friends and co-workers. Yet, again in the

twenty-first century, much as in decades earlier, some have written

openly about the rebellion they staged by turning exclusively to lec-

tures. Perhaps most prominently, Stephen Bainbridge published a lec-

ture he gave on the occasion of receiving a prestigious teaching award

at UCLA. The article proves uncommonly candid and illuminating

about the experience of finding the Socratic case method, as a student

and a teacher, disappointing and confusing and even perhaps worse

than useless. Particularly in sharing in print his unfolding thinking and

decision-making about pedagogy, in a profession where so few legal

academics talk in print about Socratic case method teaching, Bain-

bridge remains a must-read.

So too, among relatively recent writings, does a short 2003 blog

written by Brian Leiter entitled The “Socratic Method”: The Scandal

of American Legal Education.

Perhaps coining the term “recovering

Socratic teacher,” Leiter snappily summarizes decades of experiences,

lessons, and insights. Because he believes the Socratic case method is

“still widely used, more or less, in most law schools, by most profes-

sors, at least some of the time,” he calls the situation a scandal. Why?

There is no evidence—“none,” as he says—that this approach is an

effective teaching method. And there is much evidence “it’s a recipe

for total confusion” and worse. New teachers use it (and perhaps

more experienced teachers too) because, well, they think that’s what

law professors do. Because the claim, the unsupported claim, is that

the method leads students to “think like lawyers.” Yet without benefit

of the Socratic case method, lawyers in other countries presumably

think like lawyers, insists Leiter. So how can it be that the Socratic

Though using different labels, the study of the use of the Socratic case method at

Harvard proves valuably informative. See Orin S. Kerr, The Decline of the Socratic Case

Method at Harvard, 78 N

. L. R

. 113 (1999).

Stephen M. Bainbridge, Reflections on Twenty Years of Law School Teaching, 56

UCLA L. R

. D

ISC

. 13 (2008).

See Brian Leiter, The “Socratic Method”: The Scandal of American Legal Education,

EITER

EPORTS

: A P

HILOSOPHY

LOG

, (Oct. 20, 2003, 12:15 p.m.) http://leiterreports.type

pad.com/blog/2003/10/the_socratic_me.html.

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352 CLINICAL LAW REVIEW [Vol. 24:247

case method is key to that achievement?

“Thinking like a lawyer,” he insists, “is a matter of learning how

to reason and argue, in some ways that lawyers share with everyone

else, and in other ways that are peculiar to lawyers (e.g., arguments

from authority are not fallacious in the law).”

Leiter remains as-

tounded that people still insist getting grilled Socratically about cases

teaches any of that. Instead, why not have students study examples of

lawyerly thinking, he asks, with teachers helping students to identify

what they see and what, in turn, they must learn to produce analysis of

the sort anointed as “thinking like a lawyer”?

He notes, with perhaps a mix of admiration and exasperation and

“to-further-prove-my–point” conviction, that students seek out

through other means what they cannot learn at all or at all well

through the Socratic case method. He takes pains to emphasize that,

in his view, all students (including the highest achieving) look to these

many commercial aids precisely to gain some command over what law

professors apparently expect them to have learned, but aren’t actually

teaching them.

In Leiter’s experience, students almost immediately adopt the

lingo and lore that speaks of faculty “hiding the ball” through the So-

cratic case method and then expecting memorized black letter law to

frame answers to law school exam questions.

Calling himself a “fully

recovered” Socratic teacher, he urges the American Association of

Law Schools to start a self-help program for others in recovery. And

he looks forward to the day “perhaps in a generation or two, when the

Socratic method has been buried for good, law students, lawyers, and

law professors will look back in amazement at how stupidly the law

was taught for an entire century in the United States.”

Where are such assessments, a decade later, in today’s renewed

celebration of the Socratic case method? Defenders would likely say

Leiter and Bainbridge are outliers. In their willingness to speak and

write openly about their experiences, their convictions, their choices,

perhaps they are. They would appear, however, to be part of a grow-

ing plurality of faculty, perhaps even a (mainly) silent majority. That

Leiter foreshadows a terrific article by Kris Franklin where, in syllogistic form, she

makes an allied claim. See Kris Franklin, Sim City: Teaching “Thinking Like A Lawyer” in

Simulation Based Clinical Courses, 53 N.Y.L. S

. L. R

. 861 (2008-09).

Leiter cites no authority. Otherwise you might expect to see a trail of articles and

books and training materials produced by those clinicians and non-clinicians and practicing

lawyers who, for the longest time, have described the problem solving of lawyers as a styl-

ized variation of human problem solving and legal analysis as a stylized variation of every-

day analysis.

The literature addressing the phenomena captured by the slogan “hiding the ball” is

large, and for one uncommon, too often ignored piece, see Pierre Schlag, Hiding The Ball,

71 N.Y.U L. R

. 1681 (1996).

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Spring 2018] Transform Legal Education 353

has been true, in my experience, since the early 1980s.

100

Those in the silent majority still require students to buy and read

casebooks. But they otherwise have largely or entirely abandoned the

classroom method linked to casebooks originally by Langdell and then

by those who at the close of the past decade returned to lavishly prais-

ing the Socratic case method as the way to teach thinking like a law-

yer. Even as of 1999, Orin Kerr declared, in his empirical study of

Harvard Law School, the traditional Socratic method is “more myth

than reality.” In 2018, the celebrants write and speak as if most in

legal education believe what Kramer insists, even when they must

surely know many, if not most, in legal education behave like Bain-

bridges and Leiters.

101

What appears to be an accurate picture of today—and probably

accurate going all the way back to the 1980s—may reveal a deeper

truth. The much mythologized Socratic case method has always been

something of a fake. Neither Langdell nor the overwhelming numbers

of faculty since 1870 have ever contemplated systematically providing

students all that is necessary to think through in advance—to really

prepare for—what then they would be required to do in the class-

room. Law schools claimed faculty wanted to engage students in deep

thinking about cases, arguments, policies, and doctrine.

Yet the reality almost always has been vastly different. Some

faculty drafted in advance the preferred and maybe required discus-

sion, complete with acceptable and unacceptable routes, and pre-de-

termined outcomes. Others had absolutely no coherent idea of what

they were doing and why. Like their students, they found themselves

trapped in a set of rituals without any deep appreciation of what they

did or could mean for learning and teaching. Others still bounced be-

tween these poles, never entirely knowing how to explain their own

oscillation, put aside what students may have been experiencing.

Worse still, the entire approach to education seems to proclaim

one thing in principle and actually do quite another in everyday prac-

tice. Claiming to respect students, to want them fully engaged in ways

they had not been in the very lectures Langdell condemned and aimed

to replace, most faculty had no formal training and little idea what to

do to realize these aspirations. Did they really want to work resource-

fully and diligently enough to prepare students well for what together

100

See L´opez, Anti-Generic Legal Education, supra note 47. In the mid-1990s, Steven

Friedman’s survey would seem to have largely confirmed such impressions. See Steven I.

Friedland, How We Teach: A Survey of Teaching Techniques in American Law Schools, 20

EATTLE

U. L. R

. 1 (1996).

101

See Orin S. Kerr, The Decline of the Socratic Method at Harvard, 78 N

. L. R

(1999).

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354 CLINICAL LAW REVIEW [Vol. 24:247

they would do in the classroom? Did they really want to draw students

out, discover what they thought about particular cases, particular doc-

trines, opposing arguments and policies, how one body of doctrine re-

lates to others?

What Bainbridge and Leiter describe, and what so many other

faculty have long since taken to doing, may well in the eyes of the

Alternative Vision take them only part of the way to where they

should be. (In today’s language, they have not yet “flipped their class-

rooms,” though they appear ever so poised to do so.) But the big

point, for now, is that the Bainbridge’s and Leiter’s approach—antici-

pated by many before them and followed by many after—may well be

entirely less hypocritical and more productive than the Socratic case

method at communicating sophisticated ideas about bodies of

doctrine.

102

Of course I realize there exist tiny numbers of faculty whose use

of the Socratic case method proves about as wonderful as its limita-

tions allow. I know some of these greats, have extensively worked

with them, have closely studied them. These teachers actually depend

upon precisely what most other law teachers seem to fear most: They

need to find themselves working with really well-prepared students—

students who, before walking into the classroom, have assimilated

what the materials say, what the teachers think and what the teachers

have asked them to prepare to do “for practice” each day. These

teachers see the classroom as a setting primarily geared for the task of

apprehending and commanding the practice of lawyering—at least in

the limited dimensions permitted through the Socratic case method.

In these settings, students learn by doing—by using, challenging,

and improvising their own fledgling alternatives to the stocks of cate-

gories, stories, and arguments revealed by individual cases, by particu-

lar doctrines, by entire bodies of doctrine, by lawyering, by law. Even

within the bounds of the Socratic case method, these teachers already

teach as a sort of coaching, by designing, getting students ready for,

helping students through, and reflecting on what (very loosely de-

fined) amount to practice exercises in the classroom. And that’s a re-

markable achievement, one to be emulated and not just commended.

To emulate, however, requires hard training, often learning an entirely

different philosophy and practice of teaching, and an overall and daily

102

Again, in every earlier generations, such critiques have been openly and strongly

made. For just some from the late 1970s and early 1980s, see Carolyn S. Bratt, Beyond the

Law School Classroom and Clinic - A Multidisciplinary Approach To Legal Education, 13

. L. R

. 199 (1977); Roger Cramton, The Current State of the Law Curriculum,

32 J. L

EGAL

DUC

. 321 (1982); Suzanne Dallimore, The Socratic Method - More Harm

Than Good, 3 J. C

ONTEMP

. L. 177 (1976).

\\jciprod01\productn\N\NYC\24-2\NYC203.txt unknown Seq: 109 15-MAR-18 13:48

Spring 2018] Transform Legal Education 355

implementation that requires years to command.

Not surprisingly, these teachers experiment, too—almost always

by breaking away from the typical format strongly linked to the So-

cratic case method. They introduce some wider mix of interdiscipli-

nary readings; a simulation or two; several problems that in their

structure and complexity approach the heart of simulated clinics; one

or two simulated essays exams. Much as I appreciate and encourage

such experimentation, much as I myself did just all this and far more

in a decade of teaching doctrinal courses, these efforts reveal as much

about the ultimate limits of the Socratic case method as the ingenuity

of these wonderful teachers. Even the greatest teachers I have had the

honor of knowing and working with cannot transform the Socratic

case method into anything they please—unless transformation means

abandoning it.

Were these extraordinary teachers everywhere in legal education,

I would still ban the Socratic case method. Even at their marvelous

best, these teachers and the smart, diligent students they tend to culti-

vate still underperform. The current format, even with experimenta-

tion, is inefficient and ineffective at teaching the widely-agreed-upon

aims of this approach: learning law and learning how to learn law,

learning how to read and interpret and use cases, learning to recog-

nize and produce quality written legal analysis. Were we to disaggre-

gate these aims, learn from everyone (including these teachers and

students) how best to teach and learn them, then both these magnifi-

cent teachers and their wonderful students could be both more intel-

lectually all-out and practically useful.

Again, that’s not conjecture, not wishful thinking. As Leiter in-

sists, together with a great many others, there is no evidence the So-

cratic case method works. He is equally correct in highlighting at least

some of the ways students and teachers have combined and collabo-

rated for many decades to realize these widely-agreed-upon aims—in

response to and in order to supplant the Socratic case method. These

approaches can accomplish more in far less time by explicitly describ-

ing aims and methods in ways both teachers and students grasp. When

Bainbridge and Leitner prove mystified by the Socratic case method a

great many others over history certainly have felt the same way.

Enough.

B. Disaggregating Valuable Aspects And Training Through

Targeted Coaching

What we already know about what students and teachers and

many others have done to break apart the particular aims of the So-

cratic case method and to learn and teach them through dynamic and

\\jciprod01\productn\N\NYC\24-2\NYC203.txt unknown Seq: 110 15-MAR-18 13:48

356 CLINICAL LAW REVIEW [Vol. 24:247

successful methods could fill a book—or, in my judgment, many. And

that claim reflects only the creations of people I know, the efforts of

those I have read about, the products I have studied and learned from

over decades. To imagine all I have never encountered is to imagine a

far larger and more exciting world still. Perhaps most already are at

least vaguely familiar with these lessons, though too many may deny

or diminish the importance of what we have learned and can learn—if

we really want to dramatically improve legal education.

1. Learning Law

Few have ever insisted the Socratic case method proves an effec-

tive means for teaching and learning law—black-letter law, restate-

ment law, hornbook law, treatise law, synthesized versions of what

particular professors regard as law. Most accept that as information

transfer, Langdell’s creation, even in its updated 2018 form, is “terri-

bly inefficient.” To use the colorful language of Karl Llewellyn:

[I]t is obvious that man could hardly devise a more wasteful method

for imparting information about subject matter than the case-class.

Certainly man never has. We face a crisis when we find the curricu-

lum being drowned in unthinking effort to use such a method as the

sole means, or the main means, for accomplishing an end so vital.

103

Of course, you have heard this before, even if the rhetoric dif-

fered from Llewellyn’s. At least I hope you already know this. Most,

at least if pressed, agree the Socratic case method fails when measured

as an information transfer method to teach students black-letter law.

That’s why decades ago, Meyer Fisher took William A. (“Bill”) Rut-

ter’s student outline, typeset it, and sold it as the first of Gilbert Law

Summaries, and that’s why Rutter created The Rutter Group and he

and Richard Conviser created BAR/BRI.

104

And that’s why so many

other commercial outfits began producing programs and products,

105

103

Karl N. Llewellyn, The Current Crisis in Legal Education, 1 J. L

EGAL

DUC

. 211, 215

(1948).

104

For a brief account of Meyer Fisher’s start, see Stan Chess, Meyer Fisher Dies at 93;

Created Gilbert Outlines, L

CHOOL

COM

(Feb. 22, 2011), http://www.lawschool.com/

meyer.htm. Bill Rutter, a remarkable man, proved over the course of his life a supporter of

great teaching and learning, and a strong influence on generations of law students and

faculty, law graduates and practitioners of all sorts—and a man I had the honor of knowing

starting in my late twenties. See Obituary: William A. Rutter, L.A. T

IMES

, Feb. 8, 2012,

http://www.legacy.com/obituaries/latimes/obituary.aspx?pid=155787077.

105

See, e.g., M

ARTIN

J. A

DELMAN ET AL

., P

ATENT

AW IN A

UTSHELL

(2d ed. 2013);

ICHAEL

R. A

SIMOW

, G

ILBERT

UMMARIES

: I

NCOME

I: I

NDIVIDUAL

(20th ed.

2002); M

ICHAEL

R. A

SIMOW

, G

ILBERT

UMMARIES

: I

NCOME

II (12th ed. 1998);

ICHAEL

SIMOW

& R

ICHARD

URPHY

, G

ILBERT

UMMARY ON

DMINISTRATIVE

(15th ed. 2014); S

TEVEN

ANK

, G

ILBERT

UMMARIES

, T

AXATION OF

USINESS

NTITIES

(15th ed. 2016); H

IGH

OURT

ASE

UMMARIES

: F

EDERAL

NCOME

AXATION

EYED TO

ANKMAN

(16th ed. 2013); J

EFFREY

S. B

ATOFF

, L

CHOOL

ECRETS

: O

UT-

\\jciprod01\productn\N\NYC\24-2\NYC203.txt unknown Seq: 111 15-MAR-18 13:48

Spring 2018] Transform Legal Education 357

LINING FOR

XAM

UCCESS

(2012); J

OHN

AUMAN

& K

ENNETH

ORK

, G

ILBERT

UMMARIES

REMEDIES

(11th ed. 2003); R

ICHARD

A. B

OOTH

, B

LACK

ETTER

UTLINE ON

ORPORATIONS

(6th ed. 2014); A

M. B

URKHART

& R

OBERT

A. S

TEIN

, L

CHOOL

UCCESS IN A

UTSHELL

(2017); H

IGH

OURT

ASE

UMMARIES

: C

ONSTITUTIONAL

EYED TO

HEMERINSKY

(4th ed. 2014); J

ESSE

HOPER

, G

ILBERT

UMMARIES ON

ONSTITUTIONAL

(31st ed. 2013); H

IGH

OURT

ASE

UMMARIES

: C

ONSTITUTIONAL

, K

EYED TO

HOPER

(12th ed. 2016); M

ICHAEL

A. C

HASALOW

, A

CING

USINESS

S-

SOCIATIONS

(2016); R

ICHARD

J. C

ONVISER

, G

ILBERT

UMMARIES

AGENCY

, P

ART-

NERSHIP

, & L

IMITED

IABILITY

ORPORATIONS

(5th ed. 2002); R

ICHARD

ONVISER

ILBERT

UMMARY ON

GENCY

, P

ARTNERSHIP

AND

LLC

(7th ed. 2014); H

IGH

OURT

ASE

UMMARIES

: S

ECURITIES

EGULATIONS

, K

EYED TO

(7th ed. 2014); S

U-

ZANNE

ARROW

-K

LEINHAUS

, M

ASTERING THE

CHOOL

XAM

(2006); G

EORGE

ILBERT

UMMARY ON

RIMINAL

(19th ed. 2015); H

IGH

OURT

ASE

UMMA-

RIES

: P

ROPERTY

, K

EYED TO

UKEMINIER

(8th ed. 2015); H

IGH

OURT

ASE

UMMARIES

ILLS

, T

RUSTS

, & E

STATES

, K

EYED TO

UKEMINIER

(9th ed. 2015); M

ELVIN

A. E

ISEN-

BERG

, G

ILBERT

UMMARIES ON

ONTRACTS

(14th ed. 2002); H

IGH

OURT

ASE

UMMARIES

: C

ORPORATIONS

, K

EYED TO

ISENBERG

(11th ed. 2015); S

TEVEN

L. E

MAN-

UEL

, E

MANUEL

UTLINES

: A

DMINISTRATIVE

(4th ed. 2016); S

TEVEN

L. E

MAN-

UEL

, E

MANUEL

UTLINES

: B

ASIC

EDERAL

NCOME

(4th ed. 2012); S

TEVEN

MANUEL

, E

MANUEL

UTLINES

: C

IVIL

ROCEDURE

(25th ed. 2014); S

TEVEN

MANUEL

, E

MANUEL

UTLINES

: C

ONSTITUTIONAL

(34th ed. 2016); S

TEVEN

MANUEL

, E

MANUEL

UTLINES

: C

ONTRACTS

(11th ed. 2015); S

TEVEN

L. E

MANUEL

UTLINES

: C

ORPORATIONS

(2013); S

TEVEN

L. E

MANUEL

, E

MANUEL

UTLINES

: C

ORPORATIONS AND

THER

USINESS

NTITIES

(7th ed. 2013); S

TEVEN

MANUEL

, E

MANUEL

UTLINES

: C

RIMINAL

(8th ed. 2015); S

TEVEN

L. E

MAN-

UEL

, E

MANUEL

UTLINES

: C

RIMINAL

ROCEDURE

(31st ed. 2017); S

TEVEN

L. E

MAN-

UEL

, E

MANUEL

UTLINES

: E

NVIRONMENTAL

(2d ed. 2010); S

TEVEN

MANUEL

, E

MANUEL

UTLINES

: F

AMILY

(4th ed. 2014); S

TEVEN

L. E

MANUEL

UTLINES

: I

NTELLECTUAL

ROPERTY

(2d ed. 2009); S

TEVEN

L. E

MANUEL

UTLINES

: I

NTERNATIONAL

(2d ed. 201); S

TEVEN

L. E

MANUEL

UTLINES

: P

ROFESSIONAL

ESPONSIBILITY

(5th ed. 2016); S

TEVEN

MANUEL

, E

MANUEL

UTLINES

: P

ROPERTY

(8th ed. 2012); S

TEVEN

L. E

MANUEL

UTLINES

: R

EAL

STATE

(3rd ed. 2014); S

TEVEN

L. E

MANUEL

, E

MANUEL

UTLINES

: S

ECURED

RANSACTIONS

(2d ed. 2010); S

TEVEN

L. E

MANUEL

, E

MANUEL

UTLINES

: T

ORTS

(10th ed. 2015); S

TEVEN

L. E

MANUEL

, E

MANUEL

UTLINES

ILLS

, T

RUSTS

AND

STATES

EYED TO

UKEMINIER AND

ITKOFF

(9th ed. 2014);

AVID

G. E

PSTEIN

, A S

HORT

& H

APPY

UIDE TO

USINESS

SSOCIATIONS

(2016); H

IGH

OURT

ASE

UMMARIES

: T

ORTS

, K

EYED TO

PSTEIN

(11th ed. 2017); H

IGH

OURT

ASE

UMMARIES

: C

ONTRACTS

, K

EYED TO

ARNSWORTH

(8th ed. 2014); W

ILLIAM

LETCHER

AMES

FANDER

, G

ILBERT

UMMARIES ON

EDERAL

OURTS

(5th ed. 2013); P

AULA

RANZESE

, A S

HORT

& H

APPY

UIDE TO

EING A

TUDENT

(2014); H

IGH

OURT

ASE

UMMARIES ON

EDERAL

NCOME TAXATION

, K

EYED TO

REELAND

(18th

ed. 2017); R

ICHARD

D. F

REER

& D

OUGLAS

K. M

OLL

, B

USINESS

RGANIZATIONS

(2013);

ICHARD

D. F

REER

, T

AW O F

ORPORATIONS IN A

UTSHELL

(7th ed. 2016); H

IGH

OURT

ASE

UMMARIES

: A

DMINISTRATIVE

, K

EYED TO

F F

UNK

(5th ed. 2015); H

IGH

OURT

ASE

UMMARIES

: H

EALTH

, K

EYED TO

URROW

(6th ed. 2009); D

ONNA

ER-

SON

, A

SKED AND

NSWERED

: Y

OUR

UIDE TO

CHOOL

UCCESS

, V

OLUME

II, A

D-

VICE FOR

ECOND

EAR

TUDENTS

(2d ed. 2009); G

ILBERT

UMMARIES

ILBERT

UMMARIES ON

UTURE

NTERESTS AND

ERPETUITIES

(5th ed. 2009); H

IGH

OURT

ASE

UMMARIES

: P

ROFESSIONAL

ESPONSIBILITY

, K

EYED TO

ILLERS

(10th ed.

2016); R

ANDALL

INGISS

, G

ILBERT

UMMARIES ON

STATE AND

IFT

AXATION

(16th ed. 2002); M

ICHAEL

D. G

REEN

& J

ONATHAN

ARDI

, G

ILBERT

UMMARIES ON

ORTS

(24th ed. 2008); D

AVID

C. G

REY ET AL

., G

ET A

UNNING

TART

: Y

OUR

OMPRE-

HENSIVE

UIDE TO THE

IRST

EAR

URRICULUM

(2016); J

ANE

RISE

, C

RITICAL

EAD-

ING FOR

UCCESS IN

CHOOL AND

EYOND

(2017); E

DWARD

ALBACH

, G

ILBERT

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358 CLINICAL LAW REVIEW [Vol. 24:247

costing students plenty (on top of their tuition) to learn what they

need both for law school exams and state bar exams and presumably

should be learning during their law school experience, most particu-

larly through the Socratic case method.

Even before the astute Meyer Fisher and the resourceful Bill

UMMARIES ON

RUSTS

(13th ed. 2007); H

IGH

OURT

ASE

UMMARIES

: B

USINESS

RGANIZATIONS

, K

EYED TO

AMILTON

(12th ed. 2015); P

ETER

ONIGSBERG

& E

DITH

, G

ILBERT

UMMARY ON

EGAL

ESEARCH

, W

RITING

AND

NALYSIS

(12th ed.

2014); M

ONA

YMEL

, G

ILBERT

UMMARIES ON

CCOUNTING AND

INANCE FOR

AWYERS

(2d ed. 2014); M

ARK

D. J

ANIS

, T

RADEMARK AND

NFAIR

OMPETITION IN A

UTSHELL

(2d ed. 2018); S

TANLEY

OHANSON

, G

ILBERT

UMMARIES ON

ILLS

(12th

ed. 2012); H

IGH

OURT

ASE

UMMARIES

: C

RIMINAL

, K

EYED TO

OHNSON

(7th ed.

2002); K

ADISH

ASES

, H

IGH

OURT

ASE

UMMARIES

: C

RIMINAL

, K

EYED TO

AD-

ISH

(9th ed. 2013); H

IGH

OURT

ASE

UMMARIES

: C

RIMINAL

, K

EYED TO

APLAN

(7th ed. 2017); H

ERMA

ILL

, G

ILBERT

UMMARIES

: C

ONFLICT OF

AW S

(18th

ed. 2005); J

AMES

RIER

, G

ILBERT

UMMARY ON

ROPERTY

(18th ed. 2013); H

IGH

OURT

ASE

UMMARIES

: C

RIMINAL

, K

EYED TO

AVE

(6th ed. 2014); M

ARY

A-

RANCE

, C

OPYRIGHT

AW IN A

UTSHELL

(3rd ed. 2017); M

ARK

A. L

EMLEY

& C

HRISTO-

PHER

ESLIE

, G

ILBERT

UMMARIES

: A

NTITRUST

(10th ed. 2004); P

AUL

ARCUS

ELANIE

ILSON

, G

ILBERT

UMMARIES ON

RIMINAL

ROCEDURE

(18th ed. 2011);

ICHARD

ARCUS

& T

HOMAS

OWE

, G

ILBERT

UMMARIES ON

IVIL

ROCEDURE

(18th ed. 2017); H

IGH

OURT

ASE

UMMARIES

: C

IVIL

ROCEDURE

, K

EYED TO

ARCUS

(6th ed. 2015); A

NDREW

J. M

LURG

, 1L

OF A

IDE

, A W

ELL

-T

RAVELED

ROFESSOR

’

OADMAP TO

UCCESS IN THE

IRST

EAR OF

CHOOL

(3rd ed. 2017); C

HARLES

ANIS

& D

AVID

J. F

RIEDMAN

, I

NTELLECTUAL

ROPERTY AND

NFAIR

OMPETITION

AW IN A

UTSHELL

(7th ed. 2013); A

RTHUR

R. M

ILLER

, I

NTELLECTUAL

ROPERTY

, P

AT-

ENTS

, T

RADEMARKS

AND

OPYRIGHT IN A

UTSHELL

(5th ed. 2008); T

HOMAS

ORGAN

ILBERT

UMMARY ON

EGAL

THICS

(9th ed. 2017); M

ICHAEL

D. M

URRAY

, A

HORT

& H

APPY

UIDE TO

OPYRIGHT

(2018); G

ARY

YERS

, P

RINCIPLES OF

NTELLEC-

TUAL

ROPERTY

(3rd ed. 2017); J

AMES

C. O

LDHAM

& R

OBERT

J. G

ELHAUS

, G

ILBERT

UMMARIES ON

ABOR

(12th ed. 2002); H

IGH

OURT

ASE

UMMARIES

: E

VIDENCE

EYED TO

ARK

(12th ed. 2013); H

IGH

OURT

ASE

UMMARIES

: E

NVIRONMENTAL

EYED TO

ERCIVAL

(7th ed. 2015); W

ILLIAM

A. R

EPPY

, G

ILBERT

UMMARIES

: C

OM-

MUNITY

ROPERTY

(17th ed. 1998); H

IGH

OURT

ASE

UMMARIES

: E

MPLOYMENT

EYED TO

OTHSTEIN

(8th ed. 2016); A

LEX

USKELL

, A W

EEKLY

UIDE TO

EING A

ODEL

TUDENT

(2015); H

IGH

OURT

ASE

UMMARIES

: C

RIMINAL

ROCEDURE

EYED TO

ALTZBURG

(10th ed. 2015); S

HARON

K. S

ANDEEN

& E

LIZABETH

A R

OWE

RADE

ECRET

AW IN A

UTSHELL

(2013); R

OGER

E. S

CHECHTER

& J

OHN

R. T

HOMAS

RINCIPLES OF

OPYRIGHT

(2010); R

OGER

E. S

CHECHTER

, B

LACK

ETTER

UTLINE

NTELLECTUAL

ROPERTY

(3rd ed. 2006); J

OSEPH

HADE

, B

USINESS

SSOCIATIONS IN A

UTSHELL

(3rd ed. 2010); H

ELENE

S. S

HAPO

& M

ARSHALL

S. S

HAPO

, L

CHOOL

ITH-

OUT

EAR

: S

TRATEGIES FOR

UCCESS

(3rd ed. 2009); S.I. S

TRONG

& B

RAD

ESNOYER

OW TO

RITE

XAMS

: IRAC P

ERFECTED

(2016); H

IGH

OURT

ASE

UMMARIES

ONSTITUTIONAL

, K

EYED TO

ULLIVAN

(19th ed. 2017); J

OHN

ALTZ ET AL

., G

IL-

BERT

UMMARIES ON

VIDENCE

(18th ed. 2004); H

IGH

OURT

ASE

UMMARIES

EBTORS

& C

REDITORS

, K

EYED TO

ARREN

(6th ed. 2010); N

AXMAN

, G

ILBERT

UMMARIES ON

ANKRUPTCY

(5th ed. 2002); D

OUGLAS

J. W

HALEY

, G

ILBERT

UM-

MARIES

: C

OMMERCIAL

APER

& P

AYMENT

(16th ed. 2006); D

OUGLAS

J. W

HALEY

ILBERT

UMMARIES

: S

ALE AND

EASE OF

OODS

(13th ed. 2005); D

OUGLAS

HA-

LEY

, G

ILBERT

UMMARIES

: S

ECURED

RANSACTIONS

(11th ed. 2002); W

HALEY

ASES

, H

IGH

OURT

ASE

UMMARIES

: C

OMMERCIAL

(11th ed. 2017); C

HARLES

HITEBREAD

, T

IGHT

ECRETS OF

XAM

ERFORMANCE IN

CHOOL

(2d ed.

2007).

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Spring 2018] Transform Legal Education 359

Rutter recognized and responded to this need, students all over the

country realized they had little choice but to prepare fully synthesized

outlines customized to each professor and course. Already by 1970,

you could find student-created customized outlines that included eve-

rything valuable in the casebook and everything valuable in classroom

discussion. Indeed these customized outlines could be astonishingly

good. They made sense in ways the Socratic case method did not,

without in any way “dumbing down” what had gone on. And making

sense is a virtue, not a vice, despite the inclination to believe other-

wise in depicting the strengths of, say, the first year.

Indeed, at their best, these customized outlines went far further—

were deeper and more comprehensive and more practical—than any-

thing the casebook or the teacher or the class sessions ever provided.

Students created a lucidity utterly missing from the teacher and the

casebook and the classroom discussion. Not false coherence, mind

you, the sort far too many classes (if only inadvertently) mean, at

once, to encourage and discourage students from believing possible.

Instead the customized outlines offered an explicitly sound account of

internally contradictory and largely indeterminate doctrine. In those

early years, such terms only occasionally had begun to appear, but the

students got these themes across. In my view, in 1970 and today, these

students should have published their outlines as scholarship—better

still, as the materials for “learning the law” in law schools.

For any doubters, for any of you who have not studied hundreds

and hundreds of these outlines, I can vouch that these student outlines

included all the sophisticated hornbook law, any “pet” twists and

turns featured or at least acknowledged by the teacher, the best of

student commentary (more often from outside as inside the class-

room), and sometimes valuable theories and empirical data a teacher

refused to regard as even “relevant” to classroom discussions. Three

days with these customized outlines and you learned far more than a

year of preparing for and participating in class and creating your own

outline. These were the bodies of law the teachers ought to have been

making available, and all of teaching ought to have proceeded from

the understanding that students had learned this law for the first day

of work in the same way they routinely did for their final exam.

Of course a strand of today’s Socratic case method teachers still

condemn Gilbert’s, other commercial outlines, and existing custom-

ized student outlines. Rarely mentioned is that the authors of these

commercial outlines include the top scholars in a field, often the au-

thor of the casebook the teacher had chosen for the students (Marc

Franklin, Mel Eisenberg, James Krier, to name only some). Like those

of earlier generations, these faculty insist students must fully give

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360 CLINICAL LAW REVIEW [Vol. 24:247

themselves over to preparation, attendance and participation, and cre-

ating their own outlines to experience what the Socratic case method

uniquely offers. Some students do still buy this professorial line, at

least for a piece of the first year, when they do not know any better.

But even those students who write their own outline most often

take full advantage of the miscellaneous alternatives on the market.

Much as they may respect authority (“my teacher can’t be wrong, can

he?”), they see no reason not to gain wise guidance from wherever

they can, whether for the sake of learning or for besting a classmate in

the quest for a grade. Like a fair number in my generation, at least

some students today may use the outlines exclusively and bypass class

readings. A larger group may attend class without having read at all

carefully and then follow a student outline providing, as students like

to say, “the transcript for the very class they’re ‘newly experiencing.’”

And, at least in Socratic case method classes, students attend class

mainly in hopes of picking up any different or important insights

about the final exam (or because attendance is part of the final grade).

Across disparate student approaches, the constant is the best available

outline.

In 2018, though, the militant traditionalists who still insist student

must generate their own outlines for learning the law now face in their

own colleagues their second-biggest challenge. (Students have always

been the fiercest opponents of this necessity). Some faculty, following

in the tradition of Bainbridge and Leiter and those who went before

them, now provide their students what, in 1970, only students (the Bill

Rutters of this world) provided other students. These modern faculty

use a casebook and mainly lecture. And they write out and distribute

to students valuable notes going into class, and they often produce

another set of equally beneficial notes coming out of class. (Yes,

twice.)

These teachers provide their students a written roadmap to the

readings, lectures, class discussions, and to how to weave them to-

gether. They offer the patterns of the very best hornbook law and

their very favorite theories, often against the background of interdisci-

plinary knowledge they think relevant and illuminating, all of which

they’re telling students to learn, going into and coming out of class. At

their best (and I have closely studied some exquisite faculty-generated

notes), these products are terrific. Relying upon them, students can

“learn the law.” And teachers generating these written materials

ought get credit (in all important senses) for the work required to pro-

duce such teaching and learning materials. To the degree we value

learning law, and I think we should value it immensely, these teachers

prove to be among the best on any faculty.

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Spring 2018] Transform Legal Education 361

Yet these same teachers offer further proof, if further proof were

ever needed, of three important facts. To learn the law, synthesized

outlines and notes always have been radically better than the Socratic

case method. And students do not have to struggle to create their own

original outlines and notes to fully learn black-letter law, indeed law

with all the layered refinement teachers mean to identify as important.

And then the big kicker: Why not use these outlines and notes as the

point of departure for doing something entirely more demanding in

the classroom? To the degree some need aural reinforcement, it never

has been and never should be each day of class over the course of a

semester. That’s an absurd waste of time—absurd at every law school,

having absolutely nothing to do with non-elite or elite status. If learn-

ing law serves as the predicate for working in the classroom with a

teacher, then what should that work entail?

These are not new questions, obviously. These are insights and

convictions many have already turned into a counter ethic about how

to learn law and how to make that knowledge the predicate for doing

lots more. Way back in the 1970s, and doubtlessly before, outlines

freed students to skip the Socratic classroom and, as they saw it, do

better things with their time. (In the famous Willie Wonka quip, “So

much time, so little to do.”) Some chose law offices they would work

for. Others audited classes in the Business School, where the “case

method” treated classrooms as practice sessions about what to do

within and about life-like problems studied carefully in advance.

Others read wide and deep literatures only rarely required by anyone

teaching in law school. Others still took adult education courses built

around topics law school later would regard as important: economic

development, history of Black and Feminist thought, the capitalist na-

ture of law in the United States.

106

Some teachers, though, already had seen and implemented pos-

sibilities. Consider only the early mid-20th Century. In the 1940s, Ad-

dison Mueller and Fleming James created a course designed around a

very life-like problem and simulated performances by students dealing

with this problem.

107

And both Mueller and James introduced

problems around which they taught more central courses like Con-

tracts.

108

During the same years, and for decades, David Cavers

106

Fast forward only to find first-rate appraisals of various brands of capitalism by an

ambitious teacher of economic development and a serious thinker about matters too often

taken for granted, see John Schlegel, Of the Many Flavors of Capitalism or Reflections on

Schumpeter’s Ghost, 56 B

UFF

. L. R

. 965 (2008).

107

See Addison Mueller, There is Madness to Our Methods, 3 J. L

EGAL

DUC

. 93

(1950).

108

See Addison Mueller & Flemin G. James, Case Presentation,1 J. L

EGAL

DUC

. 135

(1948-49); A

DDISON

UELLER

, C

ONTRACT IN

ONTEXT

(1951); V

ERN

OUNTRYMAN

, T

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362 CLINICAL LAW REVIEW [Vol. 24:247

proselytized even more vigorously than Mueller and James for a prob-

lem-method vision of all of legal education.

109

And James Bradway

already understood these efforts, as rightly he should, as kindred com-

panions to the intellectual and practical benefits of the live-client clin-

ics he taught and urged on legal education.

110

Already by 1970, non-clinicians like Frank Sanders understood

both the squandered time consumed by the Socratic case method and

the possibilities of having students learn the law through a combina-

tion of streamlined and detailed materials. The simulated tax course

Sanders created, with realistic problems and classroom time devoted

to his coaching of the student teams assigned various aspects of these

life-like situations, expected as a point of departure that students

could and should learn law through outlines, hornbooks, treatises, and

(as necessary for the particular problems) the tax code and relevant

case law. In portraying his extraordinary contributions, Sanders pays

homage both to the clinical methodology of his then-new colleague

Gary Bellow and to the life-like case methods more typical of business

schools and medical schools.

111

Yet in design, content, and method,

Sanders’ course entailed all the intellectual and practical ambitions we

could ever hope for in having students realistically “try on for size”

the various roles tax lawyers fill.

112

By the time Sander created his Tax course, the earliest of non-

AWYER IN

ODERN

OCIETY

(1961). Felix Cohen perhaps most presciently and in-

sightfully anticipated people like Mueller and Countryman and James and Cavers, a small

strand of talented lawyers and teachers and scholars, most of whom arrived on the scene as

the principal realists were finishing up their careers and who lasted into the beginning of

the modern wave of social and intellectual movements represented most powerfully in le-

gal education by critical legal studies and law and economics and clinical legal education—

particularly the focus on an understanding of the work of lawyers and problem solving as

aim and method. See Felix S. Cohen, Transcendental Nonsense and the Functional Ap-

proach, 35 C

OLUM

. L. R

. 809 (1935).

109

See David F. Cavers, In Advocacy of the Problem Method, 43 C

OLUM

. L. R

. 449

(1943); David F. Cavers, A Proposal. Legal Education in Two Calendar Years, 49 A.B.A. J.

475 (1963).

110

See John S. Bradway, The Nature of a Legal Aid Clinic, 3 S. C

. L. R

. 173, 174

(1930).

111

See Frank E. A. Sander, Learning by Doing, 25 H

ARV

. L. S

. B

ULL

., Apr. 1974, at

16.

112

At least one other non-clinicians at the time understood problem solving as method

and aim in ways worthy of mention with Sander—David Herwitz. See, e.g., D

AVID

ERWITZ

, B

USINESS

LANNING

: M

ATERIALS ON THE

LANNING OF

ORPORATE

RANSAC-

TIONS

(2d ed. 1984). In the immediately following years, some important teachers con-

verted casebooks into problem-method books including, to name one prominent example,

YNN

M. L

UCKI

& E

LIZABETH

ARREN

, S

ECURED

REDIT

: A S

YSTEMS

PPROACH

(1995). For an appreciative review of LoPucki and Warren’s book, see William J. Wood-

ward, Jr., Empiricists and the Collapse of the Theory-Practice Dichotomy in the Large

Classroom: A Review of LoPucki and Warren’s Secured Credit: A Systems Approach, 74

ASH

. U. L.Q. 419 (1996).

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Spring 2018] Transform Legal Education 363

clinicians understood that students could learn law through well-cho-

sen and well-designed materials, permitting them to practice the work

of lawyers. On the West Coast, Anthony Amsterdam created his fa-

mous “Sick Seminar” (Clinical Seminar in Trial of the Mentally Disor-

dered Criminal Defendant), a year-long simulated clinic focused on

learning criminal defense lawyering, representing clients with many

difficulties, including mental illness.

113

Neither Amsterdam nor his

students doubted that they could learn the necessary law both at the

outset of the course and, as demands unfolded, as the situation

progressed in time. On these very assumptions and with these aspira-

tions, Amsterdam built simulated and live-client clinics and progres-

sions of lawyering courses that advanced from first through third year.

Meanwhile, on the East Coast, Gary Bellow’s live-client clinics

focused on lawyering in both civil and criminal settings. The law? All

learnable through available materials. And to the degree particular

clients required more targeted investigation, then research through

everything from the federal constitution to Massachusetts statutes to

local rules of court (such as they were) could be shouldered by stu-

dents, most often without the intervention of their supervising attor-

neys. The real challenge was not the capacity of students to “learn the

law” through available materials but what, in heaven’s name, even

with a terrific supervising lawyer like Karen Metzger and a magnifi-

cent clinican like Gary Bellow, could prove strategically valuable for a

client facing judges as arbitrary and unfair and cruel as any modern

fiction or even Kafka could imagine.

114

(Yes, as a student, I was

there.)

Having learned much from such students from 1970 forward,

when I began teaching, I chose to make learning the law in this way an

option students could pursue under my supervision. With the help of

some students, some faculty, and some staff, I gathered the best avail-

able outlines for each body of doctrine tested on the bar. Depending

upon a student’s schedule, I offered them 2–4 weeks to learn the out-

line and take law school or bar exams all on top of their regular sched-

ules. And then together we graded these exams. When they passed (at

least a B in law school terms and a passing grade in bar terms), they

moved on to the next doctrinal area. A majority made their way

through all the bar courses not included in the first year.

In some instances, we had access to resources beyond very fine

113

See Anthony Amsterdam & Donald T. Lunde, Materials for Clinical Seminar in Trial

of the Mentally Disordered Criminal Defendant at Stanford Law School (Autumn and

Spring Terms 1977-78) (on file with author).

114

See Diane Vaksdal Smith, The Honorable Karen S. Metzger, Colorado Court of Ap-

peals, 71 D

. L. R

. 1 (1993).

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364 CLINICAL LAW REVIEW [Vol. 24:247

outlines. Tim Hallahan made available to me state-of-the-art video

formats for learning how to learn and use evidence as a trial lawyer

might. Products of his collaboration with Donald Trautman and John

DeGolyer (a collaboration supported by Gary Bellow), the combina-

tion video and computer learning proved a huge success.

115

Students

could memorize the outlines, test themselves through the video simu-

lations of trials, and get immediate confirmation when right and im-

mediate correction when wrong. How come all Evidence professors

don’t use these, students asked? How come all law schools didn’t sup-

port the collaboration’s building of a library of videos covering all the

law?

With these videos and fine outlines, students understood what

Trautman and Hallahan and DeGolyer emphasized: With productive

ways to learn law available to students, the classroom could be trans-

formed into an arena for more engaging and demanding work.

116

And

law school could become a place where, at the very least, no one pre-

tended the Socratic case method was anywhere near as good—or any-

thing other than poor—at teaching law the way students and lawyers

need to learn it. Trautman, Hallahan, and DeGolyer preached to all

who would listen—and so did the students I supervised. But not many

listened. The Gary Bellows who did were the exceptions.

117

Others of us had been writing special synthesized outlines for stu-

dents since the 1970s. Those outlines permitted students to learn the

law—at first, quickly conversant—before the first class meeting. Such

outlines permitted me, for example, to jump-start clinics of all sorts

(Employment Discrimination Clinic, Section 1983 Litigation Clinic,

115

For a short account of how the work got done, including the involvement of law

students and undergraduate computer programmers, see Ellen J. Miller, In Videodisc Veri-

tas: Interactive Video at Harvard Law School, 17 T.H.E. J. 78 (1990). For a suggestion of

what by 1982 Hallahan and Miller had already developed and made available, see http://

www.worldcat.org/title/media-guide-for-lawyers/oclc/9134860 (last visited Jan. 27, 2018).

116

See Testimony of Donald Trautman, Tim Hallahan, and John DeGolyer Before Legal

Services Corporation, Provisions for the Delivery of Legal Services Committee, Aug. 7,

1987, http://www.lsc.gov/sites/default/files/LSC/pdfs/Aug.%207,%201987%20Provisions%

20for%20the%20Delivery%20of%20Legal%20Ser.pdf. For other examples of enthusiasti-

cally informed appreciation of both the potential of computers and the need for a different

looking legal education, see Donald T. Trautman, Knowledge Representation in “Default”:

An Attempt to Classify General Types of Knowledge Used by Legal Experts, in P

ROCEED-

INGS OF THE

IRST

NTERNATIONAL

ONFERENCE ON

RTIFICIAL

NTELLIGENCE AND

199 (1987).

117

Bellow actively collaborated to develop a video disc merging Evidence and Housing

Law, see Brew v. Harris lesson[s] I & II : an interactive video lesson concerning evidence

and housing law, http://www.worldcat.org/title/brew-v-harris-lessons-i-ii-an-interactive-

video-lesson-concerning-evidence-and-housing-law/oclc/18120663 (last visited Jan. 27,

2018). For only a sample of how individuals and some schools experimented in the mid-

1980s, see Ronald W. Staudt. Computers at the Core of Legal Education: Experiments at

IIT Chicago-Kent College of Law, 35 J. L

EGAL

DUC

. 514 (1985).

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Spring 2018] Transform Legal Education 365

Housing Clinic) and permitted others to do the same with their non-

clinical and clinical courses. And then, as work on real or life-like

problems proceeded, students became increasingly fluent. Had all of

us only had available to us the video/computer brilliance of Trautman,

Hallahan, and DeGolyer. Still, by the 1980s, we had high quality

materials and methods (including computers and videos) available as

alternatives to learn law. Yet law schools mainly responded by “mul-

ling over” whether or not such advancements could be productively

employed. Everything but that scientific wonder, the Socratic case

method, had to be cautiously approached.

118

Now in 2018, technology has dramatically altered how we can de-

sign, deliver, receive, and interact with information, making an orches-

trated effort to pull together how students might most productively

learn law eminently doable. Tim Hallahan and those like him (an ad-

mittedly high standard) still have a special role to play. We can retool

and streamline for optimal consumption, on everything from desktop

computers to mobile devices, all students need to memorize, use, and

get feedback on as their command of law grows. If memorization

proves less than easy for some, we have available programs that help.

If fast retrieval proves challenging, we have available techniques

(again in various formats) for nudging students to speed up their

game. And all this can be delivered for purposes of practicing for the

bar exam, practicing to be “practice-ready” in one or many roles,

practicing to be in concrete and abstract terms the problem solver law-

yers inevitably must be. We need not and should not rely at all on the

Socratic case method to achieve this defensible aspiration.

2. Learning How To Read, Interpret, And Use Cases

While most concede the Socratic case method is an entirely ineffi-

cient way of learning law, overwhelmingly large numbers regard

Langdell’s creation as a robust way of teaching how to read, interpret,

and use cases. Especially in 2018, fans confidently assert this claim, as

if disagreement is not just improbable but impossible. Yet over the

course of history, people have protested—and protested pointedly

and in print. They have openly doubted just how well suited the So-

cratic case method is for teaching students to deal at all effectively

with case law. Even or especially if you believe judicial opinions ought

to be at the center of legal education, the Socratic case method dis-

118

For an example of this sobriety, cast as enthusiasm, about the role of computers in

legal education, see Robert Charles Clark, The Rationale for Computer-Aided Instruction,

33 J. L

EGAL

. E

DUC

. 459 (1983). And for the related impulse to yearn for the return of a

modern Langdell and objective, value-free knowledge, see, e.g., Robert Clark, The Return

of Langdell, 8 H

ARV

. J.L. & P

. P

’

299 (1985).

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366 CLINICAL LAW REVIEW [Vol. 24:247

serves the treasured traditional aim of immersing students in how to

move from novice to mastery in the use of case law.

a. Edited Judicial Opinions Promoting Ends Other Than

Learning To Read Cases

Of all the available literature, perhaps a single book review pub-

lished sixty years ago best describes a major problem all too rarely

even labeled today. In 1956, the iconoclastic Addison Mueller, a sea-

soned and gifted practitioner before joining the Yale law faculty, re-

viewed two remedies casebooks, Charles Alan Wright’s Cases on

Remedies and Judson A. Crane’s Cases on the Law of Damages, both

published by “the same rainmaker, the West Publishing Company.”

119

Mueller regards Crane’s third edition of a casebook first published in

1928 as an academically pedestrian update on the law of damages, ab-

breviated coverage perhaps not nearly so damning as the “thinness” in

the treatment of substantial topics like the valuation of property. By

contrast, Mueller praises Wright’s brand new book as an intellectually

bold effort to combine Equity, Damages, and Restitution, most often

taught as three separate courses. As Mueller emphasizes, Wright

“aims to demonstrate to students how, when and where the complete

arsenal of today’s remedies work.”

120

Yet as teaching materials, Mueller condemns Wright as much as

Crane for producing books ill-suited to what legal education should

be. Wright and Crane, doubtless with the encouragement of West, of-

fer teachers the identical “slimjim format,” reports Mueller: short

books traceable to the demands of overworked teachers who need

books that can be taught on an automatic “‘for tomorrow take the

next twenty pages’ basis.”

121

Even more to the point, the authors se-

verely edit the opinions to serve particular and limited pedantic aims.

The edited opinions prove to be mere stick figures of the originals,

much as the people in casebooks almost always amount to stick

figures compared to ordinary humans.

122

In what would become for

Wright a standard maneuver, he anticipated such objections and clev-

erly insists, as Mueller quotes: “Reviewers object to casebooks in

which the cases have been severely edited, and call for a return to the

magnificent casebooks of the 19th century, where the cases were

presented in all their pristine garrulousness, undefiled by the editor’s

scissors.”

In response, Mueller digs right down to basic premises. His re-

119

See Addison Mueller, Reviews, 65 Y

ALE

L.J. 744 (1955-56)

120

Id. at 746.

121

Id. at 744.

122

See L´opez, Anti-Generic Legal Education, supra note 47, at 337.

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Spring 2018] Transform Legal Education 367

sponse to Wright’s preemptive technique summarizes so tellingly what

had already become true of casebooks in the 1950s (and likely earlier)

and remains true in 2018. It deserves to be quoted in full, indeed

treated as the final word on this topic:

Again [Wright] has neatly anticipated this reviewer’s criticism. For

though I hardly call for “a return to the magnificent casebooks of

the 19th century,” I do object to the sort of scissoring that Professor

Wright indulges in. Occasionally a case, like a man, needs an opera-

tion. But Professor Wright has not run a hospital, he has run a

slaughterhouse. The only value he can see in including cases not

thus butchered is that it may be “good for the student’s soul to de-

mand that he wade through page after irrelevant page, searching

out those facts, issues, and holdings which are related to the

course.” I submit that it is also good for his development of legal

skill. The fact that it is is one reason why the introduction of the

case method marked such a significant advance in legal education.

That we may well have gone too far in the use of that case method is

another matter. I personally have no doubt that it is wasteful of a

student’s time and wearing on a student’s interest to feed him an

almost exclusive diet of such case reading and analysis for three

years. But the solution does not seem to me to be the substitution of

twice as much half-case reading. There is a growing need in legal

education for illuminatingly written text which can be used to con-

vey information economically and thus free a student’s time for in-

dependent research and project work and the training of other

skills. But a parade of fact summaries and excerpts from opinions

does not constitute such illuminating text. And I trust that we have

not yet become such slaves to the “case system” that we can see no

way to supply it other than thus to smuggle it in behind a mask of

case headings.

123

b. Obscuring Rather Than Systematically Revealing Patterns In

Judicial Opinions

Even if more opinions survived less butchered, the Socratic case

method has proven an awful way to teach students how to read, inter-

pret, and use cases as first-rate lawyers. Rather than reveal the identi-

fiable patterns in judicial opinions, teachers most often obscure them.

Especially if they cling tightly to old-school or semi-Socratic question-

ing, they prefer to reveal some “truth”—some insightful reading—as

mystifyingly within the special domain of the professorial caste rather

than predictably a part of readily identifiable rhetorical arrangements.

They’re doing what, in their estimation, they believe rigorous Socratic

case method teachers have done forever. Yet if they’re the product of

123

Mueller, supra note 119, at 747.

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368 CLINICAL LAW REVIEW [Vol. 24:247

an unexamined tradition, they choose each day to give it new life.

Instead of aiming to equip students to map configurations and

even improvisational variations, faculty remain convinced they’re do-

ing their job best when students find themselves confused, now and

then awed, and sometimes shamed. Confused students signal the be-

ginning of an appreciation of “it depends” in law. Awed students sig-

nal an appreciation that some have the natural ability to “see and

make arguments” central to case law (that’s why they’re part of the

faculty and on law review). Public humiliation can create awe too—

instead of putting one person up a pedestal, a teacher can equally take

down a few students, as a reminder that most students (all but the tiny

elite) can work very hard to get competent but will still remain perma-

nently outside the “gifted class.”

Students today still regard a devout follower of the Socratic case

method as a teacher who takes some pride, if not enjoyment, in mak-

ing students feel small. No, this is not hyperbole: not about the class-

room, not about the comments many and perhaps most faculty make

to one another about students,

124

and not about students’ perceptions.

That sums up the prevailing state of affairs. Except that some have

broken rank with this still-sturdy tradition.

Among those who lecture, the Bainbridge and Leiter generation

and those who pre-dated and followed them, and certainly among

those who offer students synthesized notes and outlines, the aim is to

make available both mainstream law and the deeper empirical and

normative choices at work. In this sense, faculty do not exploit judicial

opinions as a means to confuse but as another source for the professor

to describe and explain in lucid terms. To varying degrees, these

professors may even offer some charting, some diagramming, of opin-

ions, of arguments, of policies supporting arguments. To the extent

synthesized notes and outlines deliver on how to read cases (illustrate,

describe, explain—repeat), this lecture approach can amount to an ad-

vance over traditional or quasi-traditional Socratic exchanges. Yet

what these professors rarely if ever do is to convert this knowledge

into the point of departure for students preparing to do something in

role with judicial opinions, to demonstrate their early literacy, their

reading, interpreting, and using cases as lawyers in diverse roles do.

That failure proves unfortunate, a huge opportunity missed, and ut-

124

My sketch draws on decades of my own experiences, on the experiences of many

others, and on a large literature illustrated by this sample. See, e.g., L

ANI

UINIER

ET AL

ECOMING

ENTLEMAN

: W

OMEN

, L

CHOOL

AND

NSTITUTIONAL

HANGE

(1997);

LIZABETH

ERTZ

, T

ANGUAGE OF

CHOOL

: L

EARNING TO

“T

HINK

” L

IKE A

AWYER

(2007); Susan Sturm, The Architecture of Inclusion, 29 H

ARV

. J. L. & G

ENDER

247 (2006); L ´opez, Anti-Generic Legal Education, supra note 47.

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Spring 2018] Transform Legal Education 369

terly changeable.

Other faculty who have broken rank within the Socratic case

method courses do so by explicitly mapping the patterns in judicial

opinions. And by doing so, they aim to equip students to “do things”

with cases in the ways lawyers do. Duncan Kennedy created and

shared an ideologically and pedagogically transparent method where

faculty shared with students visible and invisible patterns—“vying ar-

gument bites, ever-present polarities”—perceivable in all judicial

opinions in any and in every doctrinal realm.

125

Kennedy’s students,

some of whom themselves became prominent professors and practi-

tioners, carried on this tradition, with a full appreciation of how Ken-

nedy’s ideas and methods inspired their own particularized

approaches to teaching and to using cases in practice.

126

At the same time as Kennedy was implementing and refining his

approach, another cluster of teachers has taught, as best as casebooks

will permit, how first-rate lawyers in various roles actually read the

edited judicial opinions in casebooks they use. In the immediate foot-

steps of Mueller and Countryman and Chayes and Sander and

Michelman, Janet Cooper Alexander, Alison Anderson, Daniel J.

Bussel, Devon Carbado, Clare Dalton, Peggy Cooper Davis, Steven

Derian, Ingrid Eagly, Paul Goldstein, Cheryl Harris, Sheri Lynn John-

son, Jerry Kang, Sung Hui Kim, Charles Ogletree, Richard Parker,

Joanna Schwartz, Steven Shiffrin, David Sklansky, Kathleen M. Sulli-

van, Dan Tarullo, Kim Taylor-Thompson, Sherod Thaxton, Laurence

Tribe, Jon Varat, Alex Wang, C. Keith Wingate, Steve Yeazell, and

Noah Zatz offer powerful examples of the modern incarnation of in-

tellectually radical realists.

Why? They get right into the belly of the beast, not through mys-

tery, much less awe-inspiring surprises. Rather they coach, each in her

or his own way, by describing, explaining, modeling how top-notch

lawyers actually read cases in everyday problem-solving circum-

stances. And they nurture students who then “try on for size” in the

classroom the same approach to and techniques for reading, interpret-

ing, and using cases. Some consciously and others not-quite-so-con-

sciously borrow from the best of clinicians, both those they have read

and those they may know. Like Kennedy and his robust network,

these teachers do not hide from the entanglement of politics and

law—and of teaching as coaching.

127

125

For one description of Kennedy’s aims in his Torts teaching, see Gerard Clark, A

Conversation with Duncan Kennedy, 24 T

DVOCATE

, T

UFFOLK

U. L

. J. 56

(1994).

126

See Boyle, supra note 19; Balkin, supra note 19; Paul, supra note 19.

127

For what I regard as illuminating portrayals of the ideas and sensibilities and skills at

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370 CLINICAL LAW REVIEW [Vol. 24:247

Finally, and at least as importantly, the very best academic sup-

port teachers and first-year lawyering teachers transform the Socratic

case method into something approaching a direct and explicit training

of how to read, interpret, and use cases. Rejecting the widespread (if

often unspoken) conviction that to be direct is somehow to be less

than intellectually formidable, they offer their own versions of guides

to the patterns judicial opinions represent. Some methods may look

like Taylor-Thompson’s, others like Anderson’s, others still like a vari-

ation of Kennedy’s. Others may reflect still a different combination of

influences, perhaps from practice as much as law school, yet suited to

this particular aim of the Socratic case method.

Whatever may well be the differences, all these teachers expect

ambitious learning by students and offer ambitious teaching. If as part

of the academic support system, a faculty member of this quality

teaches Socratic case method courses (Con Law or Remedies, say),

they’ll make the most of probing lawyer-like readings and exchanges

with students—in the phenomenal fashion of Patrick Goodman, Kris-

tin Holmquist, Pavel Wonsowicz—and, earlier still, Kristine S.

Knaplund. If they’re assigned to teach first-year Lawyering, they’ll

make the most of grounding the students in what lawyers actually do

in the middle of messy and difficult disputes, where reading and inter-

preting and using cases may be central to a client’s well-being. Faculty

like the late Skye Donald, Aderson Fran¸cois, Kris Franklin, Tom

Holmes, K. Babe Howell, Andrea Matsuoka, and Ezra Ross trans-

form Lawyering into the explicit and ambitious training about reading

and using cases that is far more typically and inaccurately attributed to

the traditional Socratic case method.

Yet far too few, even of these superb exceptions (principally the

Lawyering faculty), require students routinely to read, interpret, and

use cases through written products responding to life-like problems.

And yet that’s how students routinely get tested, certainly in Socratic

case method courses, certainly on the bar exam, and often in practice

itself. To be sure, some of the remarkable teachers include practice

and even graded writing assignments. And the Academic Support

faculty double down compared to other great teachers, even when

class size would appear prohibitively large. And the Lawyering faculty

require far more writing precisely because the course builds its train-

ing—and most often, its class size—around applied efforts.

Yet even many teachers I greatly admire would be the first to

acknowledge wildly more writing and feedback and rewriting (repeat,

the heart of this cluster of teachers’ approach to lawyering and training, see, e.g.,

Michelman, supra note 19; Taylor-Thompson, The Politics of Common Ground, supra note

8; S

TEVEN

H. S

HIFFRIN

, D

ISSENT

, I

NJUSTICE

AND THE

EANINGS OF

MERICA

(1999).

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Spring 2018] Transform Legal Education 371

repeat) would be fundamental to learning how to read, interpret, and

use cases in ways required typically in the writing of a lawyer. They

only wish they had the resources to require routine writing in the So-

cratic case method courses they teach. Only through writing—abso-

lutely featuring preparation and explanation and examples of quality

products—can students aim to achieve what they’re being asked to

produce about how to read, interpret, and use cases. Only through

feedback on and rewriting written products can students come to ap-

preciate and consolidate strengths and come to recognize and work to

address weaknesses. All the old adages about writing (no writing but

rewriting) apply every bit as much within legal education as

elsewhere.

As important as it is to highlight those who break with tradition

(the Andersons, the Davises, the Kennedys, the Taylor-Thompsons,

the Derians, the Wonsowiczs, the Howells), this emphasis risks skew-

ing our perceptions. The great majority of Socratic case method

courses I have observed and read about still muddle what they might

make lucid; they still complicate what they might simplify; they still

render as simplistic what they might make deservingly complex about

learning to read, interpret, and use cases. These consequences may

result only from the inadvertent failure of many teachers either to

abandon or to transform the question and answer exchanges and ei-

ther to abandon or transform the casebook as materials.

But inadvertent failures can define a teaching and learning prac-

tice. To some degree, these effects may be produced purposefully be-

cause that odd mix has come again to signify—to the teachers, to the

authors and fans of the Carnegie Report, to the 2018 born-again cele-

brants of Langdell’s creation—intellectual depth and breadth. The

praise proves as difficult to explain as the annual choice of this

method to teach how to read, interpret, and use case law.

c. Substituting a Sterilized Brand of Weak Formalism For The

Radically Honest Appraisal Of What Goes Into, Can Be

Discerned In, And Can Be Produced Through

The Use Of Cases

If you have sat in on as many classrooms as I have (and now

watch multiple times on video), if you have reviewed as many

casebooks and teacher’s manuals as I have, it’s impossible not to come

away convinced that most faculty teach a sterilized brand of weak for-

malism. I’m hardly the first to make this observation, in private and in

print.

128

Yet most faculty deny even what they see in the mirror. (Re-

128

For a very recent illustration, see P

OSNER

, supra note 7, at 297-304.

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372 CLINICAL LAW REVIEW [Vol. 24:247

member, videos preserve performances—permitting teachers, like

coaches, to “watch film.”)

How can anyone who in no sense believes in formalism, you may

ask, teach students to believe it is or might be true?

129

The motiva-

tions may be many, but the bottom line turns out to be the same.

Faculty using the Socratic case method offer students a weakly con-

vincing and thoroughly attackable brand of Langdellian thought. It’s

as if they first need students to believe this in order to have exchanges

they regard as offering doubts, posing questions, culminating almost

always with the democratic problem of judges who actually decided

on bases “outside the law.” They perceive they need a target, so with

the help of casebooks and students they create one. No more than

many judges themselves, these faculty do not want to teach an outed

version of how judges decide.

130

What’s so weird and dysfunctional about this pronounced ten-

dency is that it utterly violates what any top-notch lawyer does, what

social scientists (especially political scientists) prove over and over

and now treat as obvious, and what ostensible believers in the total

autonomy of law violate every time they apply an ideological check to

the appointment of judges.

131

Every able lawyer, every social scientist,

and every honest elected official utterly understands that ideology and

law intermingle, each playing its role, yet entangled inevitably and im-

portantly. Everybody knows political views explain data about both

case results and reasoned elaborations. It’s not at all that ideology is

any more determinative than law. That’s na¨ıve and wrong-headed—

theoretically, empirically, experientially. But every judge holds

views—conscious, half-conscious, tacit—that explain cases at least as

much and often more than “judicial method.” Of course judges can

experience constraint and freedom depending upon the question

129

While a huge literature variously defines and assesses formalism, for a small sample

of the best treatments, see Duncan Kennedy, Toward an Historical Understanding of Legal

Consciousness: The Case of Classical Legal Thought in America, 1850–1940, 3 R

. L. &

. 3 (1980); M

ORTON

J. H

ORWITZ

RANSFORMATION OF

MERICAN

1870–1960: T

RISIS OF

EGAL

RTHODOXY

(1992); Ernest J. Weinrib Legal Formal-

ism: On the Immanent Rationality of Law, 97 Y

ALE

L.J. 949 (1988); Fred Schauer, Formal-

ism, 97 Y

ALE

L.J.509 (1988); Duncan Kennedy, Legal Formalism, in T

NTERNATIONAL

NCYCLOPEDIA OF THE

OCIAL AND

EHAVIORAL

CIENCES

8634 (2001); D

UNCAN

EN-

NEDY

, The Rise and Fall of Classical Legal Thought (2006).

130

See Frank B. Cross, What Do Judges Want?, 87 T

. L. R

. 183 (2008).

131

For only an illustration of a large and probing social science literature, see, Benjamin

E. Lauderdale & Tom S. Clark, The Supreme Court’s Many Median Justices, 106 A

. P

. R

. 847 (2012); Jeffrey R. Lax, The New Judicial Politics of Legal Doctrine, 14 A

. S

. 14: 131 (2011); J

EFFREY

A. S

EGAL

& H

AROLD

J. S

PAETH

, T

UPREME

OURT AND THE

TTITUDINAL

ODEL

EVISITED

(2002); Byron J. Moraski & Charles R.

Shipan, The Politics of Supreme Court Nominations: A Theory of Institutional Constraints

and Choices, 43 A

. J. P

. S

. 1069 (1999).

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Spring 2018] Transform Legal Education 373

posed and the field of cases they must deal with. Both apparent

boundlessness and limits are real, often proving only that some judges

are better than others at making law appear to control the outcome. If

we must inevitably first determine “the law” to be true to it, then fi-

delity turns out to be a far more circular phenomenon in judicial opin-

ions than conventional legal accounts routinely offer.

132

In place of the Socratic case method, it is not only easy to imagine

how we might alternatively teach reading, interpreting, and using

cases. It’s easy to borrow from decades of courses outside the Socratic

case method where, for example, large numbers of clinics have taught

the reality of how cases in practice can be described, illustrated, and

explained. Already in legal education, the stocks of categories, stories,

and arguments and the always available polar meanings can be

mapped. And teachers can help students envision choices judges (and

their law clerks) made in framing questions and rationalizing results—

and choices they might well have made had they been otherwise in-

clined. That does not mean law is pretext and answer-yielding ideol-

ogy lurks behind every decision. That means they share a world of

complex social, cultural, legal, and political forces. And laudable read-

ing, interpreting, and using of cases acknowledges and works fully

aware of the presence of these desires.

In such training, judicial opinions would be read in their entirety.

But that’s only a start. Opinions would be read often against the back-

drop of briefing submitted to trial and appellate courts to decipher the

help counsel (including any amica) provided the court in determining

what to decide and why. And those briefs and memoranda can be and

often should be read against the background of the record. And opin-

ions and briefs would be read against everything lawyers could and

would learn about the judge or the panel of judges or the state or

federal Supremes—from statistical analyses of hard data to details

about their law clerks to insider scoops about what judges reveal

about their desires and concerns.

133

In this approach, the judge is just

another worker. Not a sacrosanct figure, not a necessarily wise figure,

not a person who on the job can totally shut out (even if she desires

132

The modern literature exploring at length this brute fact, if in different terms, ranges

from Posner to Kennedy to Amsterdam and Bruner. See, e.g., P

OSNER

, supra note 7, at

297-304; K

ENNEDY

, supra note 7; A

MSTERDAM

& B

RUNER

, supra note 7.

133

Though the literature about the influence of law clerks on judges should be older and

richer, recent interdisciplinary scholarly efforts prove valuably illuminating. See, e.g.,

DAM

ONICA

, A

DAM

HILTON

, J

ACOB

OLDIN

, K

YLE

OZEMA

& M

AYA

, A L

EGAL

ASPUTIN

? L

LERK

NFLUENCE

VER

OTING BY

UPREME

OURT

USTICES

(2016);

HAMBERS

: S

TORIES OF

UPREME

OURT

LERKS AND

HEIR

USTICES

(Todd C.

Peppers & Artemus Ward eds., 2012); T

ODD

C. P

EPPERS

, C

OURTIERS OF THE

ARBLE

ALACE

: T

ISE AND

NFLUENCE OF THE

UPREME

OURT

LERK

(2006).

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374 CLINICAL LAW REVIEW [Vol. 24:247

to) everything she brings to her role.

That’s anything but a putdown—at least coming from me. Three

of the people who helped shape me as a lawyer and as a person served

for decades as judges. One I clerked for (Edward J. Schwartz) and the

other two (Roy B. Cazares and Napoleon Jones) were two of my three

law partners (the great Tom Adler, the third) in our storefront radical

firm. I knew the inside of their courtrooms, the inside of their cham-

bers, and the inside of their feelings and thinking. They were as fair as

can be and as human as can be. Of course ideology intermingled with

law in everything they did. Of course cultural and social and economic

realms inflected their cognitive processing and their self-conscious

“judging.” How could I have ever thought otherwise about these peo-

ple, these laborers, I knew so intimately for decades?

Every judge I have ever appeared before and every judge I have

known (now huge numbers, including brilliant former practitioners

like Louise DeCarl Adler, Jesus G. Bernal, Peter W. Bowie, Laura W.

Halgren, Virginia Keeney, the late Harry Pregerson, Hector E. Ra-

mon) has been every bit as human as my mentors and friends.

134

Not

as gifted, mind you, not as wise, but every bit as human. Absolutely

none were or are the ridiculously robotic figures the traditional So-

cratic case method makes them appear to be. Judges are other humans

with a job. They’re other workers—yes, other workers, deserving of

respect only if they earn it, just as are others (presidents, janitors, mu-

sicians, coaches, you name it). That judges are just other workers

makes lawyering and law more and not less intriguing, makes reading,

interpreting, and using cases more and not less demanding. It’s a seri-

ous expertise, where growth never ends, at least if a lawyer never

stops being willing to get better.

The training already provided for decades by the best of clinical

programs advances from fundamental through greater and greater so-

phistication—in reading, in interpreting, in using cases as lawyers vari-

ously must. And the radical honesty about the process heightens the

intellectual and practical rigor in ways both exciting and unnerving. In

the best clinical programs, we already train students to grasp, from the

beginning, the contradictory nature of our tendencies and the range of

meaning-making instruments always available to take us in whatever

direction we choose. The best clinicians and non-clinicians train

through problems about the problem solving lawyers actually face in a

134

That long ago Holmes famously agreed, and that, far more recently, Posner promi-

nently endorsed this same view, makes a much wider range of audiences take notice. See

LIVER

ENDELL

OLMES

, T

OMMON

(Mark DeWolfe Howe ed., Little, Brown

& Co. 1963) (1881); Richard Posner, Book Review: Reasoning by Analogy, 91 C

ORNELL

. 761 (2006).

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Spring 2018] Transform Legal Education 375

world wildly less sterile and pre-determined than the faux formalism

at least implied and so often drawn out by traditional practitioners of

the Socratic case method.

At least since 1970, and through some earlier practitioners of the

problem method (Cavers) and some of the earliest live-client clini-

cians (Bradway), we can discover various schools of thought about

how best to teach how to read, interpret, and use cases. We could

emulate any and deliver first-rate training about how to read, inter-

pret, and use cases. And we could combine virtues into new packages.

Just consider the rich diversity of sources:

Some schools of thought are linked to particular people at

particular law schools. To name just some, the NYU School (Am-

sterdam/Hertz/Guggenheim/Davis/Bruner/Francois), the Harvard

School (Bellow/Charn/Ogletree), the American University

School (Millstein/ Shalleck), the CUNY School (Bryant/Lesnick/

Burns/Copelan), the Chicago School (Stone/Futterman), the

Northwestern School (Elson), the UC Hastings School (Marshall/

Piomelli/Aaronson), the Columbia School (Rabb/Schatz/Lieb-

man), the UCLA School (Bergman/ Binder/Boland/Patterson/

Moore), the Georgetown School (Aiken/Epstein/Mlyniec).

And at the very same law schools and at other schools still,

you can discover clinicians and non-clinicians who chart their own

spectacular approaches, perhaps borrowing from many different

sources, always melded into their own original compositions.

Think only of other such masters as Alicia Alvarez, Iman

Anabtawi, Sally Burns, Daniel Bussel, Angela J. Davis, Steve

Derian, Paula Galowitz, Patrick Goodman, Bill Ong Hing, Albert

Moore, Nancy Morawetz, Charles Ogletree, Michael Pinard, Wil-

liam Quigley, Dean Rivkin, Bryan Stevenson, Kim Taylor-

Thompson, Tony Thompson, Lucie White, Leah Wortham, and

fresh waves of extraordinary teachers like E. Tendayi Achiume,

Sameer Ashar, Alina Ball, Priva Baskaran, Amber Baylor, Ingrid

Eagly, K. Babe Howell, Cady Kaiman, Elizabeth Keyes, Irene

Oritseweyinmi Joe, Daria Fisher Page, Meg Satterthwaite, Joanna

Schwartz, Pavel Wonsowicz, Noah Zatz.

What these teachers all know —and what they have put into ac-

tion since at least 1970—is that you need not and should not secrete or

sugarcoat the realities of how judicial opinions come into being, and

you need not and should not avoid the contradictory and indetermi-

nate many-sidedness of what it means to read, interpret, and use cases

in the ways lawyers in diverse roles do. While today’s Socratic case

method itself may produce formalist graduates, others within law

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376 CLINICAL LAW REVIEW [Vol. 24:247

schools have done all they could to counteract and rectify this demon-

strably limiting and limited vision.

135

Students as much as teachers can

handle the truth. And everyone —not least clients and the legal pro-

fession—will be far better off for it.

3. Learning How To Recognize, Understand, And Produce Quality

Legal Analysis

At least since 1870, legal analysis has been deeply entangled with

legal education. Many regard this relationship as healthy and even es-

timable—mutually defining and mutually admiring. For all the many

criticisms of the training law schools provide, especially the failure to

turn out “practice-ready” graduates, many and perhaps most praise

legal education’s brand of “case method” as the way of inculcating a

deep and supple understanding of “how to think like a lawyer.” In-

deed, nearly all proposed reform agendas explicitly defend, or at least

confidently presuppose, the wisdom of building proposed changes in

the curricula around a first year devoted to teaching legal analysis

through the case method, and a second year and almost always a third

year with ample case method course offerings.

I am among a relatively small cluster who openly regard teaching

legal analysis through the Socratic case method as intellectually lazy,

pedagogically haphazard, and practically ineffective. Students do not

at a deep level grasp the nature of legal analysis, cannot describe it

lucidly, and cannot with confidence produce solid-to-high-quality legal

analysis, as required by law school essay exams, essay and perform-

ance test segments of the bar exam, and assignments in many law-

yering roles.

Here’s the kicker, though. Student grasp of legal analysis resem-

bles faculty and practitioner comprehension. To be sure, most law

professors I know and have read can produce solid legal analysis,

some excellent, others even magnificent. And many practitioners

whose work I have read can generate serviceable legal analysis, some

excellent, some even brilliant. But if forced to describe the “it” lu-

cidly, both at the deepest and the most practicable levels, practition-

ers’ and even faculties’ explicit depictions more often than not betray

a revealingly garbled quality. They cannot coherently describe the na-

ture of the legal analysis they aim to produce or how they manage to

produce it. When seasoned faculty members and lawyers offer frac-

tured, cagey, enigmatic accounts of legal analysis, is it any wonder law

135

Perhaps more than any other experienced observer, Richard Posner routinely casti-

gates and argues against the formalism embodied by the teaching of far too many Socratic

case method teachers and reflected in the law school graduates he encounters. P

OSNER

supra note 7, at 300-03.

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Spring 2018] Transform Legal Education 377

students and young practitioners reveal kindred qualities?

Instead of the explicitly coherent accounts, both deep and practi-

cable, what we most often get in 2018 is very familiar but not fre-

quently enough spelled out. Explicit depictions of legal analysis and

how to produce it most often employ idioms bouncing between two

identifiable poles. At one pole, we find what I’ll call an “academically

high pedigree” account. At the other pole, we find what I’ll call a

“practically useful, typically IRAC-driven” account. My use of “aca-

demically high-pedigree” does not mean to convey my conviction that

it really is high pedigree. A “practically useful IRAC-drive” does not

mean to convey my conviction that views at this other pole prove, in

fact, practically valuable. Still, the labels capture an important socio-

logical truth about this polarity, at each end and at all points in be-

tween—and of legal education and the legal profession.

Ardent true-believers in either polar account nearly despise the

other. High pedigree proponents regard IRAC proponents as anti-in-

tellectual, vulgar, and perfunctory. IRAC proponents regard high-

pedigree types as intellectually pretentious, confused and confusing,

and even mystified and mystifying. Those who genuinely see merit at

both poles—and certainly those who feel they must pay homage to

each before divergent audiences—not surprisingly offer various ad-

mixtures somewhere along the continuum between the two poles.

Some employ their own worked-out fusions that, at least in my judg-

ment, do help others comprehend and generate legal analysis. But

most others offer admixtures that leave their audiences feeling more

flummoxed and annoyed than ever, perhaps to some degree mirroring

the aching doubts of those offering the concoctions. In any event, this

state of affairs—habitually bouncing between these poles, offering va-

rious admixtures of the “high pedigree” and “practically useful, typi-

cally IRAC-drive” polar views—can be witnessed on any day in a law

school classroom, in one-on-one meetings between more senior and

more neophyte practitioners, in commercial bar training courses, and

in advanced CLE writing courses for lawyers.

The state of affairs has produced both a relatively new body of

specialized guidance literature and relatively recent pre-law-school

orientation programs. The literature comes in all forms—books, arti-

cles, blogs, and more. The quality and tone varies widely, perhaps be-

fitting the emotional and intellectual confusion the literature means to

address. The best of these publications accept legal education as it is

and aim to help law students, incoming first-years in particular, to

make sense of training through the Socratic case method that leaves

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378 CLINICAL LAW REVIEW [Vol. 24:247

most baffled, exasperated, sometimes even dejected.

136

The books,

some written by gifted and skilled teachers, can perhaps be best sum-

marized by the title of one: Cracking the Case Method: Legal Analysis

for Law School Success.

137

Authors of these books aim to help incoming students grasp how

law professors use the case method, trying to make plain the unarticu-

lated assumptions and aspirations, aiming to define the boundaries

within which teachers and students operate, and the standards by

which student classroom performance shall be judged. The literature

surfaces the unspoken scripts about legal analysis (mini-theories of the

classroom version of oral legal analysis), how to “try it on for size” in

the classroom (what sorts of things to say in response to conventional

classroom questions), and, sadly, to a far lesser degree, how to pro-

duce it as required on final essay exams (“what goes into an A answer

to an essay exam”).

138

Relatedly, this state of affairs has produced, too, pre-law school

orientation programs run both by commercial outfits and by some law

schools. Much like the “Cracking the Case Method” literature, these

programs offer guides, even blueprints, for knowing how the case

method works. Without pretending they’re uniformly structured and

equally successful, it is true the questions these programs address for

the incoming student considerably overlap: What is the Case Method,

including what are casebooks and what is the Socratic Method? What

does it mean to prepare for class? To participate well in class? To un-

derstand the aims and methods of the law school case method as the

most celebrated and still most dominant way to expose the nature of

legal analysis valued so by law professors? And how best can students

handle the social and professional and cultural dimensions of the law

school and legal profession’s environments?

139

“What a strange world, right?” That’s what a few authors of this

guidance literature and creators of these orientation programs have

said to me—themselves acknowledging the oddity of their books’ exis-

tence and popularity. In some cases, authorial ambivalence goes fur-

136

The contemporary guides certainly have their predecessors, some valuably conceived

and lucidly presented, though mainly unknown and uncredited. See, e.g., D

ELANEY

EARNING

EGAL

EASONING

, supra note 7.

137

AUL

ERGMAN

, P

ATRICK

OODMAN

& T

HOMAS

OLM

, C

RACKING THE

ASE

ETHOD

: L

EGAL

NALYSIS FOR

CHOOL

UCCESS

(2d ed. 2018).

138

Predictably a separate body of literature aims to target students hoping to under-

stand how to do well on law school essay exams, some produced by very able and caring

teachers. See, e.g., R

ICHARD

ICHAEL

ISCHL

& J

EREMY

AUL

, G

ETTING

AYBE

OW TO

XCEL ON

CHOOL

XAMS

(1999).

139

For a brief description of the week-long UCLA orientation program, see UCLA

Law, Curriculum, https://www.law.ucla.edu/academics/curriculum (last visited Jan. 27,

2018).

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Spring 2018] Transform Legal Education 379

ther. Patrick Goodman, one of the three authors of Cracking the Case

Method and an instructor of UCLA Law’s first-year orientation pro-

gram, is an outspoken critic of the case method itself, and questions

the utility of books like his:

I intended the book to be an outsider book, but there wasn’t an

accord on that point among the authors, with the result that the

book is deeply and strangely agnostic about its central subject. In a

perfect world, the book could inoculate students against bad

pedagogy by encouraging them to assume outsider status from the

start, to question law school’s methods and make better choices.

But frankly I am afraid that I am doing harm with the book. I fear I

am contributing to the status quo with a book like this, rather than

being a change agent, i.e., being a fomenter of Marcusian “false con-

sciousness.” Those who are best at “beating the system” might be

most loath to change it or be dissatisfied with alternatives. Or

worse, administrators and students might feel like the orientation

and book is itself sufficiently innovative that activities like these are

what it means to reform legal education.

140

The Socratic case method’s approach to teaching and learning le-

gal analysis has proven so obtuse that students and faculty and com-

mercial investors correctly perceive a huge market clamoring for

direction. Students must learn how to learn before they arrive at

school because the teaching is so poor. What explains the nature of

this way of teaching and learning? How can new students adapt as

quickly as possible to the regimen? How can they adapt when individ-

ual teachers can hardly be described as sharing an agreed-upon set of

ways to employ the method? Hard, Semi-Soft, Soft Socratic? Lectures

as Socratic? And what is it teachers mean students to learn? And if

“legal analysis” transcends classrooms and the law school and the law-

yering worlds, then why do teachers appear far from in agreement

about what it is and when someone is “doing it,” much less “doing it

well”?

And if in the Socratic case method virtually all the practice of

“thinking like a lawyer” is performed orally in the classroom, how

come the final exam revolves around written problems students do

not routinely see, requiring the production of written legal analysis

they seldom practice under their teacher’s guidance? And if cases

dominate the classes, why does something like memorized black letter

law (largely omitting any case names, put aside any explicit analogies

from one case to another) prove the critical way to shape the answers

faculty want? And why do so many faculty members behave as if stu-

140

Email from Patrick Goodman, Lecturer in Law, UCLA School of Law, to author

(Nov. 29, 2017, 21:56 PST) (on file with author).

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380 CLINICAL LAW REVIEW [Vol. 24:247

dents trying to figure out how to get an A are somehow grubby, when

final grades appear to be for most teachers a measure not just of a

student’s performance on an exam but of her or his ultimate intellec-

tual capacity?

Of course those who recognize the strangeness of the world we’re

entangled with typically appreciate legal education already offers a

counter-regimen for how to teach and learn how to recognize, under-

stand, and produce quality legal analysis. Going back to 1970 and fur-

ther still, some slice of teachers, students, and practitioners have

always developed and refined aims and methods that diverge strik-

ingly from the Socratic case method, equipping students to perform

well in law school, on the bar exam, and as lawyers. Some have writ-

ten worthy intellectual accounts, and others more practically-oriented

products.

To be sure, these authors differ in their terminology, how they

reconcile available evidence and opposing views, and to what degree

they respect the rival accounts offered by other authors. Yet it aston-

ishes me how much the contributions of these authors go largely ig-

nored. Not that many students and practitioners are even aware of

this literature. And I have come to conclude not as many faculty as I

might have once thought know this literature at all well. In any event,

only a very small number of teachers employ this immensely valuable

scholarship and how-to manuals when training students in how to rec-

ognize, understand, and produce quality legal analysis. Students can

grasp what too few faculty and practitioners read, and they can see

how the “fancy scholarship” relates to their everyday learning.

At the same time, many who never publish a word about legal

analysis do ambitiously and effectively train students in how to recog-

nize, understand, and produce it. Again, you can find them in Law-

yering courses, in Academic Support Programs, in simulated and live-

client clinics, and in non-clinical problem solving courses. Yes, too,

you can find a small number in Socratic case method classrooms,

though even the most extraordinary of these faculty members would

teach legal analysis far better still in an entirely different format. They

produce materials, problems, and feedback deserving and rewarding

careful study.

Yet here’s a blunt fact. If most do not read what even the best

authors have produced about legal analysis, far, far, fewer still care-

fully examine the materials and the methods great teachers use in

teaching legal analysis outside the Socratic case method. (What, study

what Academic Support folks do? Lawyering folks? “Skill-teaching”

clinicians? Excellent professors who have flipped their doctrinal class-

rooms and won teaching awards as a result?) In carefully examining

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Spring 2018] Transform Legal Education 381

the clinical methodology of Gary Bellow and the “case method” sys-

tems of business and medical schools, Frank Sanders stood with only a

tiny number of curious faculty and practitioners. And in borrowing

from many bodies of literature and many varied teaching methods, a

very long line-up of clinicians and non-clinicians (mainly problem

method devotees) treated the teaching and learning of legal analysis

as important enough to do ambitiously and effectively. And that

meant, they realized, as Kris Franklin rightly insists we all should, that

we should shake loose from the grip of the Socratic case method and

of all those who insist, apparently as a matter of faith, “it is the

way.”

141

For all the differences among these teachers and writers, this

counter-regimen circles around certain shared insights. At least in my

version, these insights proceed from the appreciation that legal analy-

sis is a stylized variation of all analysis. And analysis expresses one

dimension of problem solving, all problem solving, not just what law-

yers do. We’re always making meaning—offering ourselves one or an-

other depiction of what we sense is happening—just to take the next

step. And inevitably we employ our standard stock of meaning-mak-

ing instruments. We invariably use stock categories, stories, and argu-

ments. And what stocks we use and how we use them depend upon

the role we’re in, the culture and setting in which we find ourselves,

and what effective meaning-making means there and then.

Answers to bar and law school essay exams illustrate this dy-

namic. If as a test-taker you want to be perceived in your written anal-

ysis as knowing how to make meaning as competent lawyers do

through contract doctrine, then you must formulate and resolve ques-

tions the way lawyers do through contract law. How do lawyers give

meaning to life’s endless situations through contract doctrine? Your

answers must read like—feel like—answers competent lawyers would

provide. Your answers must leave lawyer-graders convinced you be-

long to—should be considered a member of—the legal community.

Test-takers often ask, “What should I know?” What perhaps they

should ask is, “What should I know how to do?” Or even, “What

should I know how to perform in writing answers to bar and law

school essay questions?” Sample answers provide terrific data—per-

haps the best—for learning what lawyer-graders demand and reward.

They represent test-takers formulating and resolving questions in

ways the legal community regards as worthy. Sample answers should

be studied and emulated by test-takers:

• Sample answers should be studied to identify significant pat-

141

See Franklin, supra note 97.

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382 CLINICAL LAW REVIEW [Vol. 24:247

terns—significant because lawyer-graders have rewarded an-

swers that reveal those patterns and have said explicitly, “Test-

takers should produce answers that include these patterns to

get from us what they want from us” (good grades, bar

membership).

• Sample answers should be emulated by test-takers to build crit-

ical “muscle-memory” (yes, it’s actually stored in the brain)—

critical because lawyer-graders reward a particular (even pecu-

liar) sort of performance in answers to essay exams and, far

more than most acknowledge, that performance can be made

something a test-taker learns how to do, time and again, under

exam conditions.

• Sample answers exploited by test-takers in training—train-

ees—guide “knowing and doing.” And knowing and doing is

both the aim and the method of all ambitious and effective

training.

• If we look at thousands of sample answers, here’s what we all

know for sure: At least by implication, sample answers tell us

what lawyer-graders regard as unworthy of lawyers—as indi-

cating test-takers do not at all grasp the meaning-making re-

quired on essay exams.

• And here’s the kicker: Learning patterns, through organized

systems, frees us to be artists. We can teach the production of

legal analysis precisely to free law students and lawyers to ap-

proach this (and all kinds of) writing as writers—as writers with

artistic aspirations for the exquisite manuscripts they’ll now

and then generate. Yes, writers potentially the equal of those

we call “writers.”

C. The Socratic Case Method As Work Slowdown

The stubborn refusal to recognize these superior and already

available alternatives has led me to see that both faculty and students

have come to appreciate that the Socratic case method serves as a

modestly well-disguised work slowdown. I do not use the term “work

slowdown” allegorically, much less glibly. I mean a faculty-student

work slowdown in the full sense of workers stalling out more produc-

tive and efficient ways of doing what they’re doing because they’re not

willing to change their work lives.

Some might argue that my use of the term is misguided, mis-

taken—that the battle against threatening changes in legal education

(if ever there truly was one) has already been won, and that absent a

fight to win or a foe to overcome, continued adherence to the Socratic

case method should be cast as indolence or inertia rather than as a

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Spring 2018] Transform Legal Education 383

work slowdown. And yet I insist on and persist in so labeling it. “Work

slowdown” bespeaks resolve, actions taken with a purpose in mind,

and here the purpose is not merely indolence for its own sake, but

entrenchment. The longer the status quo remains the status quo, the

more difficult it will be to upend, and the less likely it becomes that

faculty and students will be asked to put forth the effort that would be

required of them in a system devoted to truly robust legal education.

In the 1970s, faculty and students together took two semesters (a

full year) for each doctrinal course. They took that year to accomplish

very murkily, very indirectly, very slowly what they might well have

accomplished ambitiously and efficiently in far less time. Yes, teachers

chose this approach, and they collectively and individually imposed it

on all students. But far too many students, probably the majority, ac-

quiesced in the regimen. The “mystery” of “learning to think like a

lawyer” probably had something to do with student loyalty (if not loy-

alty, then certainly the failure to raise hell): They wanted to become

priests too or at least knew the jobs they wanted, the future they

imagined.

142

They treated (after proper inculcation) Socratic case

method as the means of measuring talent or at least as not squander-

ing time and energy and talent.

Transforming legal education, certainly banning the Socratic

method, will kill this particular work slowdown. Will kill it for faculty,

which is a big reason (not the only one, but a big reason) why voting

majorities refuse this most central of changes. And will kill it for stu-

dents, which may be one reason why they haven’t refused en masse to

plenty of students have perceived, at least half-consciously, that the

entire process is not just indirect and shallow and all over the place.

They have understood, especially at exam time, that it all could have

been done in wildly less time. And the “saved time” could have been

put to far more productive use.

But if the Alternative Vision ever fully implanted, with the So-

cratic case method banned, students would soon learn how much they

had been involved with a work slowdown. And their entire work ex-

perience in law school would change. They would have to be deeply

committed to prepare for and to practice problem solving, its capaci-

ties, alone and together, through a progression that would lead them

to get better and better, advancing far more rapidly from novice to

142

See, e.g., L ´opez, Changing Systems, supra note 7. Invocations of priesthood were

relatively common in the 1970s, and earlier references in influential scholarship can be

found in R

OBERTO

ANGABEIRA

NGER

, T

RITICAL

EGAL

TUDIES

OVEMENT

(1986); P

ATRICIA

J. W

ILLIAMS

, T

LCHEMY OF

ACE AND

IGHTS

– D

IARY OF A

ROFESSOR

(1992).

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384 CLINICAL LAW REVIEW [Vol. 24:247

problem-solver to coach-in-training. But students, like teachers, would

experience a startling change in their daily work life.

In both quarters, this would look like a heavier workload and a

decreased comfort level. No longer able to simply perform their com-

petences, both teachers and students would affirmatively have to per-

form. Rather than leaning on the crutches of casebooks, the Socratic

case method, and their well-worn scripts, teachers would have to do

real legwork—assembling appropriate materials for distribution to the

students up front, crafting problems to be used in class. Even after

new methods ceased to be new, they would demand far more of teach-

ers than does the Socratic case method in the form of deep engage-

ment with the material and with students from a place of true

consciousness and conscientiousness rather than formulaic pedagogy.

As it currently stands, seasoned teachers of doctrinal courses may

be overheard to boast to their colleagues about how little time they

spend teaching each week. “You’ll be proud of me: I got it down to

seven hours total, including prep, time in the classroom, and office

hours.” “Talk to me when you match my five.” These are real conver-

sations that take place at “elite” and “non-elite” schools alike—but,

under the Alternative Vision, they’d wither away. These jaded faculty

members would rapidly discover just how much work it takes to live

up to new expectations, to truly teach. And some might exit. So much

the better.

Meanwhile, students would quickly realize how very much they

depended on the game-playing and formulae of the Socratic case

method. Indeed, student course evaluations from flipped law school

classrooms reveal a decidedly mixed picture. While excited by the

change of pace and obvious potential, students have been dismayed at

the sheer amount of work and level of engagement expected of them.

Some who were used to thriving in classes governed by the Socratic

case method found themselves out of their depth and struggling.

Like any good campaign, this work slowdown is being waged on

many fronts. Most students receive little or no training in, say, client

interviewing—and if they were, the wisdom of the Socratic case

method, from which the client is an ever-notable absence, might be

called into question. Clinics (and clinicians) have been relegated to

the bottom of the prestige totem pole—for if they weren’t, the utility

of the best clinical programs relative to doctrinal classes might call

into question the value of the Socratic case method. Discussions of the

need for practical training are almost inevitably one-offs—because if

real efforts were undertaken, real change might result. And on and

on.

But the negative consequences of sticking to what we do are both

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Spring 2018] Transform Legal Education 385

real and formidable. Students get taught a version of lawyering

through the Socratic case method that results (in the words of a col-

league) in “amateurish and arrogant” problem solving. As such, stu-

dents have presented clinicians and clients with what some public

health leaders call “downward pathology.”

143

Like Langdell himself,

students have often regarded categorizing all of life into doctrinal cat-

egories as the sum and substance of legal analysis, thinking like a law-

yer, lawyering. They typically show precious little curiosity about what

else they might learn about a situation, about how others might per-

ceive what was going on, about how to categorize in the political, so-

cial, cultural, and economic realms with the same vigor they

presumably employed in their doctrinal filtering.

Some students successfully have fought off these messages.

They’re a varied crowd, and it’s hard to know what leads to their col-

lective choices. In any event, most students accept the method on its

own terms, perhaps especially the most earnest and dutiful, at least for

a time. And after being so trained, they face the challenge of un-

learning what law school had trained them (if often only subliminally)

to think “quality analysis” entails—a brightly colored set of highlight-

ers. They had internalized default settings that could have proven

stubborn indeed. Many clinicians and practitioners and judges, per-

haps most, have understood that these students would have been far

better off had they never been initiated through the standard first-

year curriculum. But downward the dysfunction flows. They all have

gotten stuck with “health problems” in the student’s approach to law-

yering that had already been created before they even met.

And the sad truth is that some students may never receive the

necessary training. Having been inculcated in the pathology that per-

vades law schools, these students may go on to underperform through-

out their careers. Big firms, long venerated for the quality of training

they provide associates, often pick “winners” early on and relegate the

others to tedious work with little or no training provided (or needed).

Nonprofits routinely describe themselves as having too few resources

to train their incoming lawyers, though this explanation has been

openly challenged, with some whistle-blowers describing certain non-

profit cultures as choosing not to provide first rate training, just as

they choose to promote the organization’s brand over the well-being

143

For just one vivid example, see the interview with world-class doctor and epidemiol-

ogist, Sandro Galea, on his transition from emergency room and world crisis doctor to

public health specialist, Lisa Chedekel, New Dean Sandro Galea: Pushing to ‘Elevate’ Pub-

lic Health (Jan. 4, 2015), http://www.bu.edu/sph/2015/01/04/new-dean-sandro-galea-push-

ing-to-elevate-public-health.

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386 CLINICAL LAW REVIEW [Vol. 24:247

of client communities.

144

Especially in the early 1970s, though, few Socratic case method

teachers paid a moment’s notice to this phenomenon. They just did

what they did. They may well have been committed fans of the So-

cratic case method; they may have been agnostic but experienced;

they may have been deeply skeptical but not about to undertake a

challenge to colleagues and a rich tradition. Some regarded a faculty

member’s job as having little to nothing to do with the education of

great lawyers. “Law professors are not paid to train lawyers,” proudly

proclaimed Yale’s Owen Fiss, “but to study the law and to teach their

students what they happen to discover.”

145

Others may not have been

so cavalier, so self-absorbed, so much the independent contractor re-

sponsible only to himself. But views like Fiss’s did not meet with any

notable resistance, at Yale or anywhere else across the country.

In 1970 and in 2018, what always has seemed diagnostically criti-

cal to ask is what exactly law professors aimed to produce at all, let

alone through the Socratic case method. Fiss may not have cared, fig-

uring everything could be remedied by a talented graduate and expe-

rience. But what of those who feel differently about the obligation of

teaching? What do they make of this work slowdown? Of the failure

to teach legal analysis, case reading, and black letter law well? Of the

related effects of training students to be dysfunctional as problem

solvers, presenting obstacles to quality work, across the various roles

lawyers fill?

Answers to such questions may illuminate what we have been

through during the long reign of the Socratic case method. Yet they

should not deter us from what we must and should do. Much as we

should respect work slowdown as a labor strategy, we need not agree

with its every deployment. We cannot and should not put up with ef-

forts—by faculty, students, or anybody else—to interfere with more

ambitious and productive ways of learning and teaching in legal

schools. We should and must and can insist we bear the burdens a

radically better legal education would impose upon us all. We must

ban the Socratic Method. Full stop.

D. To Find Further Resistance, Follow The Money

In addition to the collective work slowdown, adherence to plain

144

See G´omez, supra note 8.

145

See Letter from Owen M. Fiss to Paul D. Carrington, in correspondence collected in

Peter W. Martin, “Of Law and the River,” and of Nihilism and Academic Freedom, 35 J.

EGAL

DUC

. 1, 26 (1985). For a contrasting view, one I regard as contributing to the

Alternative Vision, see John S. Elson, The Regulation of Legal Education: The Potential for

Implementing the MacCrate Report’s Recommendation for Curricular Reform, 1 C

LIN

. L.

. 363 (1994).

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Spring 2018] Transform Legal Education 387

old tradition, and the misconception that the Socratic case method is

an effective way to teach law, financial incentives are an important

source of resistance to change. These incentives come in many forms,

but two are immediately obvious.

The Socratic casebook method is financially efficient for law

schools, which benefit from packing lecture halls with as many stu-

dents as possible—students who pay tuition and go on to become fi-

nancially comfortable (and hopefully generous) alumni. Supposedly,

every one of the fifty or eighty or one hundred students in a class

benefits from every Socratic exchange between the instructor and any

other student. Whatever else the Socratic case method is, it is tested,

formulated, and usable in its common, mediocre form right out of the

box. These factors combined—ease of mass administration and near-

zero transaction costs—mean that continued adherence to the So-

cratic method makes financial sense for law schools.

Some professors profit from the Socratic case method system,

and the influence of those professors who financially benefit may keep

many others in line. Professors who author prestige casebooks, of

course, have a vested interest in the method’s continued vitality. Were

the method to die its deserved death, these authors would lose their

captive audiences of students who now pay hundreds of dollars per

book (in the latest edition, tinkered with slightly and re-released to

evade the used-book market) and purchase multiple books per semes-

ter. Those professors who do not author casebooks and whose col-

leagues include those who do are likely to be subject to pressure from

these power-broker authors, who frequently wield intra-school politi-

cal clout, not to upset the status quo by abandoning the method.

And how about the authors of study aids? Guides through law

school? Bar review outlines and lectures? Orientation courses? And

all those who teach basic CLE problem solving to students who gradu-

ate without any training whatsoever? We could go on and on. But the

obvious aim of this litany is that we should remember that some of the

method’s most ardent champions have motivations far beyond the

pedagogical, the philosophical, the forgivable, the defensible.

E. Scrutinizing Everything Else (Seminars, Colloquia, Practicums,

Externships, and Clinics)

As the Mission Impossible Teams of the Alternative Vision de-

scend on law schools, rooting out what’s destructive and ineffective,

nothing must escape scrutiny. Just as the best clinical programs have

for years, and just as doctrinal classes would in the Alternative Vision,

everything in legal education should reflect an educational approach

at one with the problem solving at the heart of all law practice. This

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388 CLINICAL LAW REVIEW [Vol. 24:247

would entail a series of probing questions and hard answers. Many

aspects of legal education that are now standard (or even billed as

cutting edge) would fall casualty to the rooting out of the useless, the

unambitious, the harmful.

Of each clinic, we would ask, “Does this clinic use live or life-like

experiences to coach students up in the various capacities lawyers use

to solve problems? Is each component geared to that specific end?

Are students expected (and given the means) to come prepared to

practice practice? Have they been provided diverse materials that

make the social and ideological and economic realms accessible and

the law explicit, that lay out lucidly the methods to be used? Or is it

instead a ‘clinic’ in name only? Shallow, mechanical, vapid? A so-

called clinical course, for which in advance of any meeting no interdis-

ciplinary reading is assigned and in which class time is consumed with

slideshows or banal lectures on foundational law or the basics of

cross?” All these “clinics” have no place in the Alternative Vision.

Either remake them from the ground up or eliminate them.

Seminars and colloquia that purport to provide deep dives into

specific areas of law must likewise be scrutinized for their utility to the

ultimate aim of preparing students to be lawyers. “Do students en-

rolled in this colloquium come away knowing more not just about the

subject matter, but about the various, standardized ways of respond-

ing to academic writings? Are those standard responses made plain,

explained, explicitly tried out in the colloquium space? Or is it instead

the shallowest of one-offs, after which students have no better grasp

of the systematic ways in which writings can be dissected than they did

beforehand?”

Of seminars, we ask, “Are students receiving valuable instruction

on, say, how to read and write and speak? On how to recognize stan-

dard structures? Understand, dissect, and respond to authors’ claims?

With wise supervision, write substantive pieces of their own, from re-

search and question formulation to structured argumentation? Or is

this seminar instead an excuse for teachers and students alike to

coast—the students barely skimming readings but virtually assured of

receiving A’s, the teachers ‘teaching’ only through some strange mix

of podium formality and small classroom sloppiness?”

Some might argue that externships should receive lighter or no

scrutiny—that, because participating students are engaging in work

that approximates that undertaken by lawyers, no further inquiry is

required. Nonsense. Just as clinics may be vapid, just as seminars and

colloquia may underperform, so too may externships fail to live up to

their charge (as did many apprenticeships in the past). We must in-

quire, along now-familiar lines:

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Spring 2018] Transform Legal Education 389

“Are wonderfully constructed foundational materials made ex-

plicit and available up front, and are excellent performances modeled

and explained, so that the student is prepared to perform from day

one? Are students coached up as they perform? Are they learning by

doing the things they are supposed to be learning to do? Are they

taught explicitly how to become their own coaches? Or is this extern-

ship instead a two-sided (but hardly victimless) exploitation, where

the host receives free labor and the student avoids the earnest effort

that is at the heart of the Alternative Vision?”

We could go on and on and on. The bottom line, however, is that

nothing in legal education will go unexamined, and little programming

will go untouched. The casualties will include those practices whose

main effect is to waste time and resources, to permit participants

barely to engage, to fly the flag of eminence without delivering. There

shall remain and there shall be freshly introduced much excitement,

joy, and creativity. And in the mingling of the serious and the playful,

everyone will experience the thrill of great learning and teaching of

the problem solving that is the practice of law.

V. P

IECING

OGETHER

REAT

EACHING AND

EARNING

EAMS

A. A Brief Case Study Of Dysfunction

Law school can and should be a place that is worthy of the full

engagement of excited, motivated students. And indeed, in small and

discrete pockets, it is. Remarkable clinicians and non-clinicians do ex-

ist in even the most pathological of institutions, and for the students

with whom they cross paths, the promise extended by so much promo-

tional material is kept, if typically in too-small ways.

But the rest of the school lives of these students, and virtually the

whole of the experience of others, is characterized by decided dys-

function. This is as true at elite schools as at non-elite schools. Stu-

dents voice concerns to one another, to trusted professors and

mentors, and perhaps even to law school administrators in moments

of boldness or of being simply fed up. But their concerns are not ad-

dressed, and the machine grinds on. For example:

A renowned scholar is a terrible teacher, though he’s been teach-

ing for many years. He assigns eighty to a hundred pages of reading

for each class session, but the reading proves shallow, and the class

itself moves at a snail’s pace as the teacher labors the obvious through

ancient lectures, often reading statutes word-for-word to the class. The

students shift in their seats, shoot each other sidelong looks, gripe

outside of class about their disappointment and frustration. “We’re

not learning anything.”

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390 CLINICAL LAW REVIEW [Vol. 24:247

Some days, they’ll engage each other sua sponte in spirited, in-

class debates about big questions and fine details, the sort the profes-

sor has never mentioned. Turns out, they care deeply about the sub-

ject and are desperate to find some way to stay engaged. Past years’

outlines are as incoherent as the class itself, revealing that their stu-

dent-authors had much the same experience. No past exams are avail-

able to students who want to practice. And yet this professor is

venerated by the school, his scholarship (most of which is in fact medi-

ocre) held up as evidence that he belongs in front of a classroom.

What are students to do besides shift as best they can, write tepid or

even scathing course evaluations, knowing no one who reads will ever

even try to change a thing, and then move on?

A second-year clinician is moved to a doctrinal teaching position

because the school can’t otherwise staff it up. As it turns out, she’s

terrible—an unprepared and capricious teacher who can’t assemble

demanding reading materials, put together an engaging class session,

or even pose a coherent question. Each student is divided between

compassion and anger: The teacher is clearly struggling, and they em-

pathize. But they enrolled in the class in hopes of learning something

(even a great deal), and it’s now obvious they’ll have to learn

whatever the course description promised outside of this experience.

To make matters worse, students in the young clinician’s clinic confi-

dentially acknowledge their experience had been every bit as discon-

certingly gloomy.

One or two students go to the student-facing members of the ad-

ministration, people they know and trust. The administrators listen

open-mindedly. But they state facts: They can’t do anything about it.

And those who could make changes, who could intervene and see that

the young and inexperienced teacher was coached up, are higher-ups

who presume that they have nothing to learn from students. Besides,

the higher-ups know the law school has no robust system in place for

training teachers. Going to the higher-ups would accomplish nothing

and might even lead to a backlash against the students.

A Socratic teacher popular among some students initially

presents as charming in front of a classroom. In the lingo of students,

he is likeable and, now and then, “brilliant” in offering unexpected

insights about excerpted judicial opinions included in the famous

casebook. But in short time, students experience him as the full-on

bully he can be. He’s thin-skinned and vengeful. It’s hard to figure

what sets him off. Certainly one pattern emerges: He seems to target

certain students. Because they come off as accomplished? Because

they question the (largely tacit) political assumptions driving his inter-

pretations? Because they cannot take seriously his utterly legalistic

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Spring 2018] Transform Legal Education 391

sense that all that matters lies within the case itself (doctrine as both

the entire world and walled off from all other realms)?

In the largely scripted classroom exchanges, the Socratic teacher

aims to take these targeted students down a peg or two. He most often

employs abrasive questioning and his own Greek-chorus-like com-

mentary on the exchanges. Routinely, he crosses the line from the

pedagogical into the personally abusive (“ad hominen attacks,” as

lawyers sometimes say). Of course the targeted students feel bewil-

dered. They stand up for themselves, but students behaving like adults

only drives him to extend his bullying. Other students notice.

Unconvincingly, they attribute his behavior to “tough-minded-

ness”—even as they openly doubt he can ever become anything but

an unapologetic, vainglorious bully. All the students know there’s no-

where to turn. He’s an up-and-coming teaching star, at least as the law

school markets him. The students variously wonder: Should I just

check out? Attend or not but devote all serious attention to the stu-

dent-generated outlines he condemns and the high quality scholarship

he never mentions (much less assigns)? No matter the choice, they

will learn whatever they will learn despite a teacher no one should

experience.

These stories are completely fictional—but based on “real

events.” Over the decades, I have heard many such tales about in-

structors at diverse schools. And often I have studied the materials the

teachers assigned and watched videos of the classroom work the

teachers do with students. Students, faculty, and staffers all have their

own stories to add, which they’ll share in confidence and off the re-

cord—stories about shockingly bad teaching and institutional complic-

ity. They have stories, too, about going to really nice and good

people—the student-facing administrators, for example—only to be

told, again and again, there’s nothing we can do. Anyway, say these

nice and good folks, she or he or they are terrible teachers or are

incorrigible bullies but she or he or they are “hardly the worst.”

Soothing, right?

The clinician I’ve just depicted, and other unacceptably poor

teachers like her, may well be trainable and retainable in the Alterna-

tive Vision. The renowned scholar provides us fewer reasons to hope.

Selected and venerated for his scholarship, he’s a teacher in name

only. That for years he has been allowed to rest on his questionable

laurels—that he will be allowed to do so until he is feted upon retire-

ment—reflects and contributes to the creepy solidarity routinely pre-

sent within law school cultures. Ostensibly because of respect for the

terrible teacher’s scholarship, more likely because of misplaced loy-

alty, even many first-rate teachers routinely prove unable to face their

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392 CLINICAL LAW REVIEW [Vol. 24:247

colleague’s horrible teaching or at least unwilling to delineate the

problems in any way that might lead to redress. Together with many

others, they enable terrible teachers, and every bit as frequently they

enable the law school’s inattention to serious and sustained training.

As for the bully, he has no place in any institution of learning—at

least not without a fundamental change in his practices and habits. To

earn a place in the Alternative Vision, he would have to demonstrate

openness, at a deep level, to a pedagogy that doesn’t center around his

position of power or around the Socratic exchanges he uses to assert

it. And he would have to abandon mean-spiritedness. As it stands,

though, he’s in no danger. His colleagues do not experience his bully-

ing, so they feel no cause to defend him—though they likely would if

called upon. “It’s just some students.” “They’re being too precious or

too demanding or too political or too something other than reliably

accurate.” “Learning is sometimes uncomfortable—get used to it!”

Any administrators made aware will simply tell students to soldier on.

“What can we do? The semester’s only a few months long. You’ll be

fine.”

The laissez-faire attitude toward the struggling young clinician,

the blind eye turned to the up-and-coming bully, and the institutional

complicity that established the scholar in his role and keeps him there

are as condemnable as they are common. The Alternative Vision

makes room for none of this. In a school in which joyous engagement

and perpetual openness to improvement is the baseline, communica-

tion will remain open, and all opinions (especially of those in the

know, which often includes students) heard and respected. Bad teach-

ing will not be tolerated from anyone, be she a new clinician or he a

senior doctrinal scholar with decades of classroom experience. And, of

course, those who abuse their power (yes, unapologetic, vainglorious

bullies) and those who protect bullies (various enablers) will be

jettisoned.

We will hire with both eyes (not just one) on teaching ability. We

will insist that teachers, like students, train themselves and each other

up—not just initially, not just at occasional, voluntary sessions, but

never-endingly, through well-conceived programs themselves staffed

only by the best teachers of teachers. Every institutional move—in-

cluding and especially hiring and training and “counseling out” —will

reflect the expectation and aspiration that teaching and learning

should and shall be utterly engaging and exciting.

B. Utilitarian Evaluation and Compensation of Teachers

The unspoken premise that underlies much discussion of teaching

and learning is that a teacher ought to be evaluated on the basis of the

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Spring 2018] Transform Legal Education 393

quality of her performance in the time she spends with students in the

classroom. This is the premise around which many course evaluations

are based. The questions center around the classroom time, asking

about the organization of the presentation, the professor’s receptivity

to student ideas in class, and the like.

But this basic premise is wrong. Teachers should be evaluated

based on all they do—most of which, in the Alternative Vision, hap-

pens outside of meetings between students and teachers. The focus

ought be, how much might an engaged student have learned from all

the teacher has done? Why shouldn’t a teacher who develops and

promulgates excellent materials, who crafts valuable problems, who

gives insightful feedback be elevated as a great teacher, though his

classroom presence be less dynamic than others’?

And I’ll go a step further: If students are able to learn and

achieve mastery through the use of excellent material developed and

promulgated by such teachers, why shouldn’t we give these teachers

credit for units on that basis alone? Classroom time is certainly valua-

ble. In fact, it’s so valuable we ought meet only when we know exactly

what we’re doing together, so that the students practice what they’re

learning and the teacher coaches the practicing student. How well a

teacher coaches in these meetings matters. But it does not necessarily

matter most, and it most often will matter less than how well the en-

tire course (the training program) affords engaged students a wonder-

ful learning experience. Evaluations and compensation ought reflect

this truth.

C. Drafting and Training for Success

Being on an excellent team—a team full of focused, mutually

supportive individuals striving together toward a common goal—is a

magical experience. We see this experience depicted in movies and on

television shows, in fiction and in sports writing. But we need look no

further than everyday experience to find this magic in action. Students

in study groups urge each other on to better performance, encourag-

ing one another before exams and checking in afterward. Members of

high school sports teams gather for group cheers before games or

meets and cheer each other on as they compete. A company whose

door-to-door salespeople work on a commission-only basis mandates

daily meetings, and workers at those meetings share tips on how to

close, make bets on who will sell the most the next day, and are in-

ducted into the “comma club” for four-figure commission checks.

When people unite to reach a shared goal, the whole really is

greater than the sum of its parts. In volleyball, every member of a

team has her mind on a goal: Don’t let the ball drop. Each has her role

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394 CLINICAL LAW REVIEW [Vol. 24:247

in helping the team to meet this goal, and will do whatever is required,

laying out her body if necessary to keep the ball from hitting the floor.

If she sees she’s in over her head, a player will yell, “Help!” and other

players will come to her assistance, laying out their bodies if necessary

to keep the ball from hitting the floor. The team is not just six players

on a court; it’s a twelve-handed, twelve-footed, twelve-eyed entity de-

termined not to let the ball drop.

And if a team is truly successful, the drive toward the ultimate

goal shares space in the spotlight with individual achievement and mu-

tual support, ends unto themselves. A good swim coach has her swim-

mers stationed poolside during meets, cheering their teammates

whenever they’re not themselves competing, and pretty soon scoring

the most points or upholding the team’s reputation is no longer the

singular focus. Swimmers know one another so well that they can pick

each other out in a heat by stroke mechanics. They’ve all memorized

each other’s best times for every event, and when an old best time

falls to a new one, everyone celebrates as if it were partially theirs.

Because it is. And, wouldn’t you know it, best times fall more often,

and more meets are won, in such environments.

Modern law schools are not nearly often enough populated by

teams devoted to teaching and learning. Faculty are frequently more

focused on writing and self-promotion than on teaching—and what

passes for teaching is worn and ineffective and in fact requires very

little of faculty. Students by and large know that the real value they

will extract from their law school experience will come in the form of

resume lines and grade point averages, so they pursue those ends,

leaving full engagement (in a pedagogy they know is feeble) to those

few who’ve not yet sussed it out.

The hard truth is that teaching the law, and doing so effectively, is

not for everyone. If we are to build great teaching and learning teams,

we must be willing to cut the dead weight. For one thing, teachers who

are unwilling to put in the hard work that will come with reorienting

themselves to the Alternative Vision and truly pursuing the end of

preparing law students for the practice of law must be let go—just as a

volleyball player who won’t lay out must be cut. I realize this impli-

cates issues of tenure, and that shedding ineffective teachers is not

now as simple as deciding to do so, but I persist in saying that, in the

Alternative Vision, teachers must shape up or be made to ship out,

either by being fired or being “counseled out.”

This will mean either the radical conversion or the departure of

faculty who now brag to one another about how little time they spend

on their teaching, who protest against requirements that they seriously

undertake to write up aims and methods, who remain utterly con-

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Spring 2018] Transform Legal Education 395

vinced, under the auspices of academic freedom, that teaching is not a

responsibility to be shared with others. The message must be pro-

claimed loud and clear: If you can’t get on board and pull your weight,

swim back to shore and we’ll leave without you.

And not everyone who undertakes to teach lawyering has the

necessary ideas, skills, and sensibilities. The beginning of wisdom is to

realize that teaching ability draws on particular capacities, separate

and apart from either ability as a performer (here, as an attorney) or

as a scholar. In the Alternative Vision, law schools will stop pretend-

ing otherwise. To piece together great teaching teams requires the hir-

ing of great teachers—not great practitioners, not renowned scholars

who we’re “confident” will teach well, but great teachers.

Law schools’ cultural hostility to the ambitious training of lawyers

is perhaps especially visible in this quarter. The great majority of law

schools appoint new faculty almost exclusively on the basis of their

scholarship. In the materials submitted to prospective employer law

schools, a candidate’s “teaching interests” frequently receive only

passing mention—and teaching methods are rarely mentioned at all.

Meanwhile, past and future scholarship take and hold center stage,

the candidate elaborately portraying her work, enthusiastically mar-

keting at least as much as accurately describing. Indeed, extensive

scholarship has become so entrenched as a hiring prerequisite that

faculty search committees frequently privilege J.D.-Ph.D.s (who often

have more published scholarship) above those whose work is exclu-

sively legal.

It’s not that I believe a single-minded focus on lawyering or law is

desirable or at all correlated with teaching ability. And it’s not that we

cannot name J.D.-Ph.D.s among those from whom the Alternative Vi-

sion has learned from and should learn still more from in the future.

(Abel, G ´omez, Hale, Jolls, Thaxton, Whitman . . .) Rather, selecting

teachers principally on the basis of their scholarship is plainly wrong-

headed. And I’m far from the only one to think so. In a recent empiri-

cal study of the hiring of J.D.-Ph.D.s and its effects on legal education,

Lynn LoPucki concludes that the notable shift in favor of such hiring,

as well as that which results from such hiring, goes largely undebated

within law schools.

146

Worse still, he finds the shift will “reduce the

146

See Lynn M. LoPucki, Dawn of the Discipline-Based Law Faculty, 65 J. L

EGAL

DUC

. 506 (2016). A small literature has noticed, praised, worried. See, e.g., Donna Fos-

sum, Law Professors: A Profile of the Teaching Branch of the Legal Profession, 5 A

. B

OUND

. R

. J. 501, 531 (1980); Jack Goldsmith & Adrian Vermeule, Empirical Methodol-

ogy and Legal Scholarship, 69 U. C

. L. R

. 153 (2002); Edward Rubin, Should Law

Schools Support Faculty Research?, 17 J. C

ONTEMP

. L

EGAL

SSUES

139 (2008); Erwin

Chemerinsky, Why Not Clinical Education?, 16 C

LIN

. L. R

. 35 (2009); Jeffrey J. Rachlin-

ski, Evidence-Based Law, 96 C

ORNELL

. L. R

. 901 (2011); Tracey E. George & Albert H.

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396 CLINICAL LAW REVIEW [Vol. 24:247

schools’ capacity to prepare students to practice law.”

147

If legal education regards past and immediate scholarly produc-

tion as far more important than creative and effective training of fu-

ture lawyers, then faculties will disproportionately lack the abilities

and the willingness to do what I insist they must. That collision has

already arrived.

148

And, if this were a hallway conversation, LoPucki

would tell me, with a twinkle in his eye, “You’re already getting

crushed and the future looks bleak.” More and more attenuated from

the work of lawyers, more and more encouraged to ignore ambitious

teaching and learning about lawyering, many and perhaps most ten-

ure-track faculty already have cut themselves off from the practice of

law, the vitality of great teaching and writing. This obsessive focus on

scholarly production will have no place in the Alternative Vision. The

time has come for all of us to stop behaving as if teaching ability were

either a secondary qualification for a job as a teacher or “follows natu-

rally” from other sorts of excellence.

Just as not everyone has the drive or ability to teach effectively,

not everyone who now enrolls in law school is equipped to learn in the

way they would have to in the Alternative Vision. I certainly do not

propose a return to the days of “look to your left, look to your right.”

The fraction of students who are unwilling to train when push comes

to shove or who truly lack the chops required to become practicing

attorneys is tiny. But it does exist. In building great teaching and

learning teams, a school operating under the Alternative Vision will

recognize this, and will “fire” or counsel out students who won’t put in

the necessary sweat labor. Those who aren’t ready to be turned loose

on clients and communities after completing their studies must like-

wise be counseled out or held for more training.

I know all these points may come across as harsh, especially

against the background of legal education as we know it. There’s a

sort of magical thinking animating what we do now: “This scholar has

never taught a day in her life, but she knows so much about the topic

that I’m sure she’ll teach well.” “This student is lazy and a terrible

listener and writer, but he’s survived three years of law school and

passed all his classes, and I’m sure he’ll catch on once he starts practic-

ing.” I’ll be the first to champion magic, but magic, like excellent im-

provisation, doesn’t happen on its own. The magic that results when

teams form is like any other kind of magic—it’s planned, practiced,

Yoon, The Labor Market for New Law Professors, 11 J. E

MPIRICAL

EGAL

TUD

. 1 (2014);

Justin McCrary, Joy Milligan, & James Phillips, The Ph.D. Rises in American Law Schools,

1960-2011: What Does it Mean for Legal Education?, 65 J. L

EGAL

DUC

. 543 (2016).

147

See LoPucki, supra note 146, at 511.

148

See Lynn M. LoPucki, Disciplinary Legal Empiricism, 76 M

. L. R

. 447 (2017).

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Spring 2018] Transform Legal Education 397

executed, reviewed, improved, put into action yet again. That process

never ends, at least among the greats.

To more fully flesh out what the law school would look like if this

brand of magic were realized, we can look to the excellent teachers

who currently make up their own tiny counterculture and extrapolate

out. Even as their colleagues boast about getting their weekly teaching

hours down to single digits, these teachers pay out all the sweat and

time involved in flipping their classrooms and imparting knowledge

and know-how rather than just rehearsing tired scripts. These teachers

spend serious time and thought writing up their aims and methods,

recognizing it as an exercise not just in transparency, but in self-reflec-

tion and continued improvement. These teachers are willing to share

the responsibility of teaching with similarly motivated others, and are

frequently themselves resources to which others could come for infor-

mation and guidance. But, wouldn’t you know it, no one ever asks.

What if these teachers were no longer lone warriors? What if all

legal educators took that title seriously and bent their collective shoul-

ders to the wheel? Make no mistake—those few who take their charge

seriously must now expend a great deal of effort protecting them-

selves and their sweat labor from the wear of the cultural tide, even if

they’ve stopped trying to push it back by converting their colleagues

and sparking real change. What if we set these excellent educators

free, allowed them to devote all their energy to their work? And what

if we built around them teams of likeminded teachers in a community

where collaboration, shared methods, and constant improvement were

the norm? Members of these teaching teams would lead classrooms

full, to the last woman and man, of students committed to learning

how to be lawyers—and if that goal were affirmatively in reach, the

transparently natural result of the prescribed course of study, the

number of students unwilling to put in the work required (and there-

fore in need of counseling out) would be vanishingly small.

In order to reach the heights sought, we need folks at all levels to

be fueled by love of teaching people and not things. The work in-

volved, and the demonstrated excellence upon which we insist, de-

mand nothing less. Students and faculty, deans and staffers should get

at least as turned on by teaching and learning as they do by whatever

else they count as part of their work (writing, practicing, administer-

ing). As a point of departure and as a goal, everyone on the teams

must be able, ready, and willing to treat teaching and learning—teach-

ing and learning superbly—as an intellectual, practical, and emotional

high they aim to enjoy and help others to experience.

Along with a love for teaching people and not things, team mem-

bers must bring to the table an openness—an ability to observe and a

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398 CLINICAL LAW REVIEW [Vol. 24:247

willingness to change. On an interpersonal level, this means they must

be ready to be completely honest in their work; to reveal themselves

and their weaknesses; to put in the effort it takes to improve; to part-

ner and work with people of all “skill levels”; to learn from everyone

(because absolutely everyone has something to teach); to engage

deeply with the work of others and incorporate others’ strengths into

their game; and to commit to each other’s improvement as well as

their own. They must, in other words, be coaches on the floor—pro-

pelling one another and themselves up the learning curve, to ever-

greater performance.

On a pedagogical level, and among other changes, this openness

would likely lead to the long-overdue incorporation of advanced tech-

nology into legal education. The near-total absence of advanced tech-

nology from the modern law school (save for that used for legal

research and that put to administrative uses) is at once flabbergasting

and all too predictable. At a time when football and basketball players

are using virtual reality to improve their games,

149

when software can

teach us languages and can translate spoken language in real time,

why are we not actively seeking out ways to make technology a full-

fledged member of our teaching and learning teams?

The answer is the same as it was over thirty years ago, when Don-

ald Trautman, Tim Hallahan, and John DeGolyer’s remarkable com-

puter and video course of evidence tutelage stood alone and

unreplicated: Welcoming technology into the pedagogical space would

involve admitting there’s room for improvement—that the Socratic

case method is not the panacea it’s long been claimed to be. In the

Alternative Vision, teaching and learning teams would energetically

seek out technological “members” and enthusiastically incorporate

anything and everything of utility into legal education. Following the

example set by Trautman, Hallahan, and DeGolyer, we’d bring pow-

erful and available technological tools to bear inside and outside the

law school classroom.

It should not have to be stressed, and yet it cannot in 2018 be

emphasized emphatically enough: The teams must be aggressively de-

segregated. As unfortunately still needs to be stated, underscored, and

bolded, diversity of all sorts is an integral part of a robust education.

By ensuring that all aspects of the team reflect diversity in race,

ethnicity, gender, religion, political leanings, sexual orientation, and

149

See Tom Haberstroh, John Wall: “I Really Thought I Was Gonna Die”, ESPN (Feb.

8, 2017), http://www.espn.com/nba/story/_/page/presents5/washington-wizards-virtual-real-

ity; Kit Ramgopal, Virtual Reality Companies Are Changing How Athletes See Practice,

N.Y. T

IMES

, Nov. 27, 2017, https://www.nytimes.com/2017/11/24/sports/virtual-reality-ath-

letes.html.

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Spring 2018] Transform Legal Education 399

socioeconomic status—obviously, a less than exhaustive list—we will

ensure that students (and indeed all involved) incorporate into their

worldview the truth that wisdom comes from all quarters. Team mem-

bers’ experiences will all be enriched by the inclusion of divergent

points of view.

150

This is especially important in the legal field, in

which White men have long been dominant and their voices dispro-

portionately amplified.

Those attempting to piece together great teaching and learning

teams must be watchful of pitfalls and challenges. It will not do, for

example, for law school deans to merely pay lip service to the assem-

bly and support of such teams while continuing to nurture an under-

belly of current practices. Remember that law school administrators

address calls for fundamental changes in legal education with one-off

dinners. Know that students who seek to involve themselves in admin-

istrative matters are often carefully chosen (with passivity in mind)

and carefully instructed (to be smart, behave, and legitimate predeter-

mined decisions by signing off). We must guard against this mindset so

infected by inertia, against the sort of lip service that gives the impres-

sion that we’re moving when in fact we’re standing still.

A continuing challenge will be to discover (while never accepting

as set) the limits of the willingness and ability of all involved to adapt

to new demands. How smart and hard are we all willing to work? How

far outside our comfort zone are we willing to venture? How long

until our new space becomes comfortable, and does that comfort bring

with it a complacency that itself is cause for change? And how are we

to keep one another motivated to always, always strive to improve—

to better not just our results, but our very methods?

The fact is that the excellent teams that would result from careful

assembly should be the floor and not the ceiling. Admittedly, this is a

high standard, but it is certainly no loftier than our professed aim: to

prepare students to ably represent clients upon graduation. Nor is it

loftier than anything that’s been going on for many years in the best of

clinical programs. That teams of such high caliber would represent a

floor reveals two things: that the Alternative Vision is incredibly dif-

ferent from the legal education with which most of us are familiar, and

that this is eminently doable. Yes, everyone should come in ready to

work. Yes, students should be ready to practice upon graduating law

150

See Marybeth Gasman, An Ivy League Professor on Why Colleges Don’t Hire More

Faculty of Color: “We Don’t Want Them”, W

ASH

. P

OST

, Sept. 26, 2016, https://www.wash-

ingtonpost.com/news/grade-point/wp/2016/09/26/an-ivy-league-professor-on-why-colleges-

dont-hire-more-faculty-of-color-we-dont-want-them (explicating some of advantages that

come with a diverse faculty and exploring ways in which institutions might make their

faculty populations more diverse).

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400 CLINICAL LAW REVIEW [Vol. 24:247

school. And yes—we can do this.

We cannot know at the outset every wrinkle or variable that the

Alternative Vision will bring our way, nor the final form and ultimate

abilities of the whole that will take life from the parts we seek to as-

semble. But piecing together great teaching and learning teams is a

doable and absolutely vital step. Excellent, motivated teachers and

able, hungry students do exist. Let’s be uncompromising in our priori-

tization of excellence. Let’s privilege teaching ability in teachers,

learning ability in students, and proper motivation in both. Let’s stop

thinking magically and start acting to make magic happen.

VI. B

WARE

—A

EWARE

Even as the vast majority engage in a work slowdown, some stu-

dents and faculty audibly voice the need for change—for legal educa-

tion that fulfills its compact with students to prepare them to practice

law. They may sometimes speak softly, or avoid speaking directly to

those in power, but still they speak. Aware of the need to at least

make motions around the issue, administrators may tick the box of

attending to these concerns through various one-offs, like lunchtime

symposia or faculty–student dinners. The conclusion that these one-

offs are inadequate to the task of transforming legal education, and

are in fact nothing more than motions made around the issue, is ines-

capable. They say, “Pay no attention to the man behind the curtain.” I

say, don’t be bought off by such transparent overtures.

The announcement of such a lunchtime symposium or dinner

might look like this:

As you know, the school regularly hosts events at which students,

staff, and faculty discuss issues of importance to our community. We

hope you will join us for dinner this coming Thursday, when the

topic will be the school’s legal pedagogy. Specifically, we will discuss

ways in which faculty members can and do incorporate legal skills

development into doctrinal instruction. We look forward to your

presence and input.

Pretty standard, right? And to the casual eye it might even look

promising: “Finally, they’re going to talk about it!” But even assuming

that such a dinner could be a means to the end of improving legal

education (which I’m quite unwilling to concede), we have a problem

right out of the gate. Included in my stylized example, because I’ve

encountered it so routinely, is a hedge: “[W]e will discuss ways in

which faculty members can and do incorporate legal skills develop-

ment into doctrinal instruction.” In other words, it’s a non-problem.

“This is already being done. Nothing to see here. Move along.”

To imply that the ambitious development of problem-solving ca-

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Spring 2018] Transform Legal Education 401

pacities is taking place in any significant portion of doctrinal and theo-

retical courses is to tell a bald-faced lie, full stop. But the fact that

such hedges are used so frequently by law school administrators in the

context of addressing concerns lays bare another hard truth about

many school administrators: They’re not listening. Here, they ignore

the students who profess a desire to be prepared for practice upon

graduation, as well as the faculty who see a systemic problem and

want a systemic solution. Likewise, those who raise the need for more

high-quality teachers are told that occasional, voluntary trainings are

already available. And students who ask for explicit, in-school bar

preparation are told that more is being done to prepare them than

they realize. And on and on and on.

In many cases, it’s not a bare assertion of power—“I’m the dean,

and this is how it’s going to be.” Rather, such claims are rooted in an

assumption, which is sometimes made explicit, that those at the top

know best what’s going on at their law schools—better than faculty,

and certainly better than students.

For far too many deans and top administrators, this position is

more than a default; it’s unshakeable. But the fact is that both faculty

and students know what goes on in doctrinal classes far better than do

deans, and that students also know (by virtue of their summer work

experience) precisely how little “legal skills development” they’re de-

riving from the Socratic case method. Just as students know more

about teacher quality, and faculty know more about their colleagues’

teaching abilities, than do deans. Just as students who’ve begun bar

preparation know, far better than do deans, how little their schooling

has prepared them. When faculty and/or students underline a problem

and ask for change, shouldn’t their understanding be respected, their

queries considered open-mindedly and answered with candor?

But deans are on average far too wrapped up in the top-down,

expert(-as-traditionally-defined)-deifying mythology of the legal field

and of law school pedagogy to break with this model. “As lawyers, we

don’t listen to our clients to discover anything more than what fits in

our pre-fabricated boxes of legal problems and legal solutions; why

would we listen more openly here? As lawyers, we know more than

our clients because we have legal knowledge; why shouldn’t our ad-

ministrative knowledge put us in the same privileged position?”

The typical dean doesn’t ask herself such questions, much less un-

dertake the candid self-evaluation that would result. Just as clients are

boiled down to fact patterns in the mind of a traditionally educated

lawyer, who gleans legal problems with legal solutions and leaves the

rest, the typical dean gleans from the complaints of those who ques-

tion traditional legal pedagogy that this is a particular type of problem

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402 CLINICAL LAW REVIEW [Vol. 24:247

in need of a particular type of solution. More specifically, it is a non-

problem—as communicated via the wording of the announcement—

and those troubled by it can be appeased via a one-off.

And what a one-off it is. Even if we were to excise the common

“can and do” hedge or to consider the dinner or the lunchtime sympo-

sium on its own terms, its by-design impotence is starkly evident.

Wouldn’t any such effort require extensive preparation by the partici-

pants? The body of relevant literatures—on human psychology, on

adult learning, on theories of legal pedagogy, to name only some—is

wide and deep, and good-faith participants in any honest effort to re-

form legal education would need to undertake serious readings in or-

der to be prepared to do the work required.

Consider the very one-off nature of a dinner or a lunchtime sym-

posium. If law school administrators were really committed to incor-

porating the development of useful capacities into doctrinal classes,

wouldn’t they undertake a distinctly more serious effort? Wouldn’t

such an effort have to span far more than a single evening and involve

the ongoing participation and training of many more than could sit

comfortably at any dinner table? The reading undertaken beforehand

would be just the start. Those seeking to transform legal education

would need to tackle a series of challenging problems and be involved

in discussing how any existing or imagined course (or any experience)

might meld theoretical and conceptual training into experiential learn-

ing and how experiential learning can be at the heart of conceptual

and theoretical training.

The feigned value, the worse-than-uselessness, of the proffered

“problem-solving method” becomes all the more inescapable when

thinking about other areas of life. Suppose instead that the issue were

the quality of instruction at an elementary school, with some parents

and teachers asserting that students weren’t proficient in reading upon

graduating the fifth grade. Would a dinner party be an appropriate

solution? Would the agitators’ concerns then be assuaged?

And when such a law school dinner takes place, the tenor of the

conversation is as predictable as its failure to lead to any change. De-

spite having been billed as already doing work to imbue students with

the ideas, skills, and sensibilities they’ll need, many of the faculty in

attendance will wonder at the wisdom of the central question and seek

to reframe it. “Should we really be doing that? Isn’t law school about

learning to ‘think like a lawyer’? Isn’t everything we’re doing with the

Socratic case method wonderfully intellectually pure, and wouldn’t

the introduction of those baser ‘skills’ dirty the whole thing? And is it

even possible to teach the needed ‘practice skills’ in a doctrinal

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Spring 2018] Transform Legal Education 403

classroom?”

151

If no one but law students suffered—if they were the only ones

who felt the injury that results from this particular wrong, by exiting

law school utterly unprepared to perform in the profession for which

they’ll soon be licensed—that would be bad enough. But the injury

doesn’t stop there, or even with their future supervisors, who will have

on their hands new lawyers who are at best unprepared and at worst

prepared affirmatively badly, having to unlearn all they’ve absorbed

and relearn something useful.

Rather, it’s clients who will suffer. Some will be well-heeled, able

to weather the inevitable losses that come with poor representation

and to find new representation when they wise up. Others won’t be so

lucky. The low-income and middle-income and otherwise vulnerable

clients served by very poorly educated students will feel real injury

and suffer real harm at the hands of new lawyers far from practice-

ready. Students are told obliquely and in passing in law school that

this is all about the client, and once they start working this becomes

true; aren’t law schools working directly in opposition to clients’ inter-

ests in preparing future lawyers so poorly?

The plain truth is that law schools, like all major institutions, are

supremely capable when they care to embrace self-improvement. To

take only one example, one need look no further than university land-

ing pages to see that this is so—those carefully curated areas that pre-

sent the university’s face to the world at large. University leaders,

alumni development and communications departments, faculty, and

consultants undertake expensive and extensive research on the effec-

tiveness of their landing pages: The images, layout, and messages are

all the subject of continual and intensive scrutiny. Virtually no effort is

spared in the drive to present the university in the best possible

light—to attract students, parents, scholars, and dollars. Where a

school is vigorously invested in the success of a particular effort, it can

and will go all-out.

Don’t be bought off by such transparent overtures as one-off

gatherings to discuss what should be done (and what’s already being

done) to address this serious problem. And don’t be pacified by the

mere absence of such maneuvers; recognize that this account, far from

being fully descriptive, is instead merely illustrative. The maneuvering

that has taken place over the last decade has taken many forms—and

in some cases, even those who participated in calls for reformation

151

See Fisher Page, supra note 8, at 817 (noting that some question meaning of “prac-

tice-readiness” in legal field, given premium placed on specialization and difficulty of pre-

paring students for “widely disparate types of work”).

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404 CLINICAL LAW REVIEW [Vol. 24:247

acted as enablers to the old regime.

152

Law schools are not preparing law students to practice law. Far

from being a nonproblem, this is an outrage. Until law school adminis-

trators undertake serious measures involving deep thought, wide par-

ticipation, and serious training, don’t be placated by bones thrown.

Remain outraged. Become outraged. Act daily to express that

outrage.

VII. T

YSFUNCTION

UNS

EEP

It may be tempting to think we’ve covered the territory—that in-

dolence and entrenchment, denials and rationalizations, one-offs and

no-gos are the sum total of what’s stopping real change from taking

hold. But in fact the forest of problems we must solve has roots even

deeper, stretches even farther, looms even larger than most may real-

ize or want to see.

The enormity and shape of the forest could be described from

innumerable perspectives. How would Damon Agnos describe it?

How would Regina Austin? Marissa Dagdagan? Sally Dickson?

Michelle Fei? Paula Galowitz? Marlene Garza? Colin Cloud Hamp-

son? Stacey Hawver? James (S ´ak ´ej) Youngblood Henderson? Bill

Ong Hing? Katie Hurley? Duncan Kennedy? Shauna Marshall?

Yumari Martinez? Dale Minami? Gary Peck? Dian Sohn? Kim Tay-

lor-Thompson? Francisco Valdes? Eva Wood? Accounts of each of

these and many more would almost certainly focus on different as-

pects of the issues we face. Although a clear picture would only

emerge from an amalgam, each individual account would be

illuminating.

And indeed we do have some descriptions in hand. What follows

are two related perspectives, both authored with uncommon honesty.

The first and more lengthy is by Brian Mikulak, in the form a letter

shared with his colleagues upon his retirement from teaching at USF.

Following Brian’s letter is a reflection from another gifted, accom-

plished, and experienced legal educator, a friend, who has chosen to

write without attaching his name. Together, they throw into sharp re-

lief just some—just some—of the pathologies we must root out and

overcome as we strive to reform legal education.

A. A Swan Song

Dear [Dean],

As you know, I’m retiring at the end of this semester after nearly

152

See L´opez, supra note 5.

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twenty-seven years of teaching as skills faculty in the law school.

Trent has practiced environmental public interest law for nearly

forty years, and particularly in this climate, he really needs to pass

the torch to younger people with more stamina. We’ve sold our

preposterously appreciated flat in the Mission and we’re expatriat-

ing. We’ll spend our first year in Latin America, our second in

Italy, and figure out the rest on the road. We’re not sure whether

we’ll come back.

I know it sounds clich´e, but it has absolutely been a privilege and a

terrific pleasure to have taught for the bulk of my legal career. The

kids have been a fantastic and incredibly fulfilling part of my life.

But as much as I’ll miss them—and as lucky as Trent and I have

both been professionally—we want to launch our long-contem-

plated adventure while we’re still young enough to adventure.

I’ve collected my thoughts about my experience in the law school

and the challenges it faces, and I want to share them with you and

the rest of the law school community. I know what I’ve written is

long, but after nearly twenty-seven years I think it’s time this subal-

tern spoke, and I ask you to hear me out.

Let me say at the outset that I respect scholarship and the people

who produce it. I published one law review article many years ago.

It wasn’t very long and it wasn’t published in a prestigious journal,

but it took a great deal of energy and effort. I’ve now written a

book I’m trying to get published. It’s not a scholarly work, but it is

a serious book, and it, too, took a great deal of energy and effort. I

very much appreciate our doctrinal faculty members’ role as schol-

ars as well as teachers in the law school.

But I think your identity as scholars and your elite school forma-

tion have left most of you with an emotional need to believe that

you’re vastly smarter than everyone else. So you tart up law in an

attempt to make of it something more intellectual than it is. The

result is that many of you teach in a needlessly opaque way that

harms the students and the school.

Yes, law is often verbally and conceptually complex—maybe com-

plicated would be a better word—but it’s always in a mechanical

way. The language isn’t ornate and specialized because the con-

cepts are too deep to convey more simply. The language and exag-

gerated formulations often veil political decision-making, and even

when they don’t, they’re almost invariably more complicated than

they need to be. Do you need a certain facility with words and a

certain minimum capacity for abstract thought to do law? Of

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406 CLINICAL LAW REVIEW [Vol. 24:247

course. Are many of our current students borderline in these re-

spects? Obviously. Are their shortcomings matters of innate limita-

tion or undeveloped skill? That’s a far murkier question.

Some of our kids are privileged kids who don’t belong in law

school if they couldn’t do better than us after enjoying all the ad-

vantages of parents with money and education. But in the last few

years we’ve gotten increasing numbers of first generation college

kids, immigrants’ kids and immigrant kids, the products of a dra-

matically more socio-economically diverse UC in the wake of the

admissions changes wrought by Prop 209. I’ve welcomed these

kids with open arms and view them as a renewal of the best of this

school’s traditions and its original mission. This school was

founded to serve kids too poor for Stanford and too ethnic for

Berkeley. I couldn’t have been luckier in enjoying the recapture of

that mission and purpose as the capstone of my teaching career.

I view this student cohort as all the more reason for the law school

to finally tackle the antiquated beast of traditional legal pedagogy

because that pedagogy needlessly imperils these kids. I distinctly

remember feeling appalled by traditional law school pedagogy as a

1L, and I’ve never stopped feeling appalled. Demonstration and

modeling are accepted, respected, and even required modes of

pedagogy in every school of the university but the law school,

where they continue to be marginalized if not maligned.

Legal think is a very particular—and very peculiar—kind of think-

ing, and it’s not very intellectual. It’s mechanical to the point of

knee-jerk, it’s utilitarian but not very efficiently so, and it’s emi-

nently small-minded. There’s a reason why they call it bean-count-

ing. To paraphrase Mrs. Henry Adams on Henry James, legal

think chews more than it bites off. When an undergraduate human-

ities professor assigns Homer’s Odyssey and then asks the class

what entrancing sirens’ song keeps them from their respective jour-

neys, the professor is teaching the students how to think. The law

professor’s claim to teaching people how to think, on the other

hand, isn’t just tenuous, it’s destructive.

A case disembodied into a law school casebook doesn’t work for

timeless contemplation like a work of art because it’s not a work of

art. It’s a utilitarian document in a cumbersome administrative sys-

tem written not just for those who speak the language, not even just

for those who speak the dialect, but for the lawyers directly in-

volved in the matter. Handing a group of newbies a stack of appel-

late opinions and quizzing them on the in-speak in those opinions

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is a stupid way to teach people how to be lawyers, and it’s no less

stupid for being time-honored. But it certainly does set up a power

dynamic that keeps the kids in thrall of the professor.

Old hands don’t speak in-speak because they’re smart; they speak

in-speak because they’re old hands. Newbies aren’t confounded by

in-speak because they’re stupid; they’re confounded by in-speak

because they’re newbies. Traditional law school pedagogy willfully

conflates experience with intelligence. Professor Kingsfield wasn’t

just a nasty old man, he was an intellectual fraud. An updated,

kinder, gentler version of Professor Kingsfield is no less fraudulent

for being less unpleasant. When a law professor assigns Pennoyer

v. Neff in a void of abstraction and then expects the class to discern

what from the tangle of technical in-speak subsequently emerged as

doctrine and what fell into obscurity, the professor is demanding

divination in the guise of demanding thought. The answer doesn’t

come from a process of careful reasoning; it comes from acquired

knowledge of the evolution of the doctrine that might just as rea-

sonably have evolved differently.

It would be far more efficient and effective to sum up and explain

what the rules have evolved to, and then to assign a problem and

the cases that would control to show how courts go about adjudica-

tion. Tell them what the rule is, explain it, and walk them through

the courts’ application of it in the first few cases assigned for the

day, then ask them how the rule was applied in the remaining cases

and move to the day’s factual problem. When it’s their turn—after

you’ve turned the lights on—it’s totally appropriate to push, to de-

mand, to cold-call. I certainly have. But when you demand divina-

tion in the guise of demanding thought, you pretend to a room full

of newbies that you got the answer by sheer application of reason

to the text.

Feigning knowledge of the answer by sheer application of reason

to the text gratifies the teacher by leaving the students with the im-

pression that the teacher is brilliant. But when teachers do that,

they leave students feeling stupid, confused, and utterly adrift. The

teacher’s ego gratification comes at the expense of panic and tail-

spin on the students’ part, and it’s especially destructive panic and

tail-spin. It causes them to believe what they need to do here is

immeasurably deep when in fact it’s shallow: They need to recog-

nize what rules are triggered by the fact pattern, then quickly and

superficially bat the most obvious facts back and forth and proceed

to the next issue to do the same before time is called.

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408 CLINICAL LAW REVIEW [Vol. 24:247

When a professor masquerades acquired knowledge as innate ca-

pacity, there’s no kid the professor is more likely to derail than the

first-generation college kid from a lower-class background. These

kids’ lives are freighted with reasons to doubt their capacity, and

professional school is already an alien and intimidating environ-

ment for them.

I had a superfund lawyer’s kid in class a few years ago, and she

wasn’t very smart. She wound up on academic probation after the

first semester, and came to see me about it that January. When we

discussed her status, the first thing out of her mouth was, “I know I

can do this.” I get lower class kids on academic probation in my

office every January. I can’t count the number of times the first

thing I’ve heard these kids say was, “I don’t know if I can do this.”

One of my recent students is the child of immigrant farmworkers

who was first exposed to English in grade school. She writes it with

greater fluency and style than most of my lawyers’ kids, but she

was on academic probation in her first year. I could’ve predicted

the classes she’d do well in—and those she’d do poorly in—based

on the pedagogy of the professors who taught her first semester.

A couple of years ago Carol and I tag-teamed a student we particu-

larly wanted to see succeed. He was a Latino floor refinisher’s kid

who went to Berkeley. A kid like that doesn’t get to a school like

that because of who his parents are. He definitely had the intellec-

tual capacity to do law. And he absolutely was not a jerk-off; he

worked very hard, and consistently so. His work was always in the

clouds, and the task was to reel him down to earth. We would talk

him down, and give him examples of what he needed to do. At one

particularly telling moment, frustrated and still resistant, he blurted

out, “It can’t be that simple!” So in addition to doing our own jobs,

skills faculty have to, if you’ll pardon my French, un-fuck the kids’

heads after doctrinal teachers’ pedagogy convinces them legal anal-

ysis has to be inscrutably intellectual.

In the past, our students, like most law students at most law

schools, muddled through. They taught themselves the rules and

taught themselves how to write an issue-spotting exam. But it’s

hardly a paean to the pedagogy that students made it through in

spite of it rather than because of it.

Our doctrinal faculty need to think critically about the institutions

where they believe they learned to think critically and I believe they

learned to think alike. Elite education is first and foremost about

assuring privileged kids that they’re better than everyone else and

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Spring 2018] Transform Legal Education 409

thus entitled to lead. If you’re smart and progressive, didn’t you

notice that?

If you think I’m exaggerating about the composition of elite cam-

puses, you probably missed the NYT Upshot piece about a recent

study by Berkeley, Stanford, and Brown economists showing that

dozens of top-ranked schools, including half the Ivy League, enroll

more kids from the top one percent of the income spectrum than

the bottom sixty. It includes a spiffy interactive feature that allows

you to type in a school to get its top one to bottom sixty ratio.

153

The study showed that kids from the top one percent have one in

four odds of elite school admission, with those odds steadily, corre-

spondingly, and stunningly declining as you descend the class hier-

archy. The odds drop below one in a hundred at the sixtieth

percentile, still significantly above median, and get worse from

there down.

That study confirmed what I’ve known experientially ever since I

set foot on an elite campus over forty years ago. I grew up in a

Catholic-ethnic factory town in New England that has long since

become an eastern Rust Belt town. I was one of four from a class

of over four hundred at my factory town public high school to get

to an elite college, and I was the only one of the four who was First

Generation College. I naively expected to find there a campus full

of top students from ordinary schools in ordinary working towns

across the country, but found instead a world of kids whose elite

degrees might as well have been printed along with their birth

certificates.

I certainly did not grow up poor. But before you object that your

background is just middle class, let’s acknowledge that the untena-

ble elasticity in American use of that label isn’t an accident; it’s

propaganda. Here’s what the real middle looks like: a median

wage a bit above thirty grand and a median household income be-

low sixty. As to education, two-thirds of American adults lack a

bachelor’s degree and only the top five percent have a Ph.D. or a

professional degree. If you were a kid forty years ago, for perspec-

tive consider that median family income in the mid-70s was about

twelve grand. My family’s was nine. And we shared the company

of about 85 percent of Americans as a household not headed by a

college graduate. My sources are readily available census data on

153

See The Upshot: Some Colleges Have More Students from the Top 1 Percent than the

Bottom 60. Find Yours, N.Y. T

IMES

, Jan. 18, 2017, https://www.nytimes.com/interactive/

2017/01/18/upshot/some-colleges-have-more-students-from-the-top-1-percent-than-the-

bottom-60.html.

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410 CLINICAL LAW REVIEW [Vol. 24:247

the web.

Yes, you worked hard to get your degrees. You dutifully, at times

arduously stepped to the choreography your parents laid out for

you to get where you are.

154

But the vast majority of the population

can’t get to Harvard by stepping to parental choreography because

their parents don’t know the way, much less what steps to take on

it, and because elite education, maybe college education at all, is

culturally foreign if not out-rightly alien to them. What role does

our doctrinal faculty play in that kind of alienation?

I’m genuinely flummoxed by what seems to be the unique severity

of the doctrinal faculty’s snobbery. You guys even sneer at John

because he’s not an academic, and he’s obviously vastly more ac-

complished than the rest of you put together. He was an Undersec-

retary in Obama’s cabinet, for Christ’s sake! In my twenty-seven

years of teaching in the law school, very few doctrinal faculty

members have ever treated me with the respect John does in a com-

pletely natural, matter-of-course way. And no, I’m not saying that

to suck up to John. Talk to Brand about how much I suck up to

Deans. Talk to Peter about how much I suck up to bosses

generally.

While your education is certainly a big part of it, that alone doesn’t

explain the phenomenon. My husband went to Harvard Law

School, and while he and his Harvard friends absolutely have egos,

none of them behave with the imperiousness that seems unique to

academics. Over the years, when I’ve found myself in the elevator

with a thirty-something I didn’t recognize with an officious,

rushed, self-important air who avoided eye contact with me and

grudgingly and uncomfortably acknowledged me when I intro-

duced myself, I’ve generally assumed I had just met the latest doc-

trinal faculty hire. I’m sorry to say I can’t remember having been

wrong about that.

It certainly was harder to make my way alone and uphill, but I’m

glad I wasn’t born to the upper middle class. It must be like having

been born in a 19th century novel. Your way was paved, but that

meant someone else charted your course. Your way was paid, but

that meant someone else held the purse strings. If you’ve never re-

ally known freedom and self-determination, I can understand that

you would flog status as consolation.

154

I know there are septuagenarian meritocrats on the faculty—Jews who broke the

glass ceiling. But their progeny aren’t meritocrats; they’re aristocrats. That’s generally how

it works.

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Increasingly I’ve come to the conclusion that insecurity com-

pounds the imperiousness of high birth and elite education. I can’t

imagine a more charitable explanation for our doctrinal faculty’s

disrespect of the skills faculty. For people as obsessed with status as

most of you guys are, it must be a source of considerable anxiety

that you teach at my alma mater and not yours. And for people

who never tire of presenting themselves as progressive, you guys

aren’t very good at letting subalterns speak.

The law school recently got the highest ranking it’s ever gotten: The

Princeton Review ranked us number five in the country for aca-

demic support for minority students. The reason for that ranking

has a name: Carol Wilson. For nearly thirty years she’s specialized

in academic support for those students with the lowest admissions

indicators in the in-coming class, and for those who fall into aca-

demic probation after the first semester. She’s engineered the stun-

ning success of low- income and minority students with dauntingly

low test scores and undergraduate grades, enabling them to emerge

as some of our most illustrious alums. Those alums include the

incomparable Cupcake Brown, a former junkie who became a big

firm lawyer, Alameda County Chief Public Defender Brendon

Woods, Federal Magistrate Candace Westmore, and my personal

hero, Judge Advocate General Jophiel Phillips, a young man I’ll

always feel honored to have taught.

It’s not hyperbole to say that it was institutional dysfunction to ex-

clude from academic policy-making the teacher in the law school

who enabled this kind of success for students who arrived with the

lowest scores and grades in their classes. Her expertise is precisely

what the law school most needs in navigating through its current

peril. And yet you guys are so jealous of power and so into school

snobbery that you exclude Carol, and Richard Sakai, and the rest

of the skills faculty from policy-making.

Carol is the child of an auto-body man and a homemaker from a

logging town in rural Oregon. Richard is a gardener’s kid. Do you

guys seriously believe that you would have wound up at Harvard,

Boalt, or NYU had you started out as children of auto-body men

or gardeners?

I’m sure you’ll want to attribute the recent encouraging news about

the Bar to doctrinal faculty answering questions for a couple of

hours per week in the library pending the bar in the summer, while

ignoring the fact that Richard Sakai and Rod Fong spent the rest of

those weeks working one-on-one with kids who sought their help

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412 CLINICAL LAW REVIEW [Vol. 24:247

in substantially increased numbers, probably because last year’s

pass rate put the fear of God in them. Time will tell whose efforts

made the difference.

What I’ve consistently found with every post-crisis class is that

while their written work is generally inferior, considerably inferior,

to my students’ written work several years ago, their spring term

moot court oral argument is just as strikingly and just as consist-

ently superior. Might that be because our students in the past came

more consistently from households and schools where serious at-

tention to written work was part of a regime rigidly and relentlessly

imposed, but debate skill typically was not? Might more of our

current students conversely come from households and schools

where rote academic preparation for higher education was rela-

tively rare, but fluid and far less parentally scripted interpersonal

exchange was more common? Might these differences be more

about culture and class than intelligence?

I’m not sure of the answers to these questions, but I frankly feel

troubled and offended by the presumption many on our faculty

bring both to the questions how and why they came to be elite edu-

cated, and whether those not bred to a polished level of reading

and writing are or are not capable of it. Of course it’s easier to

teach kids who’ve been bred to assimilate abstract thought and to

dutifully manipulate it according to the conventions of one or an-

other discipline. But if doctrinal faculty want critical thinking and

nuanced analysis on every question except who’s smart and who

isn’t, we have a moral as well as an empirical problem.

I know that more than a few of you will want to dismiss what I’m

saying about elite education as sour grapes, so I’ll share with you

that after going on a four-year outside merit scholarship to Wes-

leyan undergrad, I got into a Ph.D. program at Duke, and scored

in the 98th percentile on the LSAT. I didn’t come here to get my

J.D. because this was the highest ranked school I could get into. I

came here to work my way through night school because my em-

ployer offered tuition reimbursement and I wanted to continue to

avoid educational debt.

I don’t, however, think that high test scores and the schooling high

test scores facilitate mean what most of you want to believe they

mean. I don’t dismiss the significance of those scores; the correla-

tion between a school’s LSAT median and its pass rate is undenia-

ble. But what they measure is not the limit of innate capacity; they

measure academic skills learned to date. And even that they often

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Spring 2018] Transform Legal Education 413

enough mistake. Had your LSAT cut-off been in place when Cup-

cake applied, we would’ve rejected her.

I know precisely how and why I made my unlikely journey, and

it’s not the tale of an ubermensch. I was the little fag who was

afraid of the ball, but most of all I was afraid of the violent menace

of the bully boys at school, not to mention my father and big

brother—and that triggered the serendipity that landed me at Wes-

leyan. I certainly wasn’t averse to books, but I hid out in the public

library to be physically safe and so wound up inadvertently spend-

ing the bulk of my childhood reading. As the physical menace

faded in high school, the overwhelming pressure to conform in het-

erosexual dating and lusting sent me fleeing back to the library,

which remained my escape and my refuge. Without the hostility

that sequestered me in the library, I would never have wound up at

an elite school—maybe not even in college at all.

While I was always regarded as the strongest student in the class,

school, like the library, was my refuge and safe space. Teachers

were rational, sometimes even kind, and the system of rewards and

punishments was actually something I could control with my be-

havior, and so I eagerly did. I engaged at school.

I can fairly say I out-performed the few other kids who also en-

gaged, but what about the defiant kids who completely rejected

school and refused to cooperate? And what about the bulk of the

kids in between, who submitted and went through the motions, but

half-heartedly and half disengaged? I can’t say I’m smarter be-

cause I outperformed kids who weren’t trying, or trying very hard.

So what do I really know about how smart they were and how

smart I am?

How about you? If you’re the child of moneyed and educated par-

ents, your native language lab was a dining table attended by par-

ents with graduate degrees, you went to schools full of comparably

situated kids that left the schools of the other ninety if not ninety-

five percent in the dust, and your sophisticated and financially ena-

bled parents moved heaven and earth the moment you seemed to

falter on the path to elite education, are you really so special for

having arrived as delivered?

And are you really so special for having attained fluency in a rari-

fied language that you’ve gotten paid to read, write, and speak for

decades? How could you believe that knowing how to do what

you’ve done for a job for years makes you smarter than someone

who’s never done it before? Accretion of knowledge is supposed to

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produce wisdom, not snobbery. And the terrible irony is that when

you rank what you do high and what other people do low, when

you believe yourself superior for having mastered a job you’ve

long done, and when you sneer at people who don’t know what

you know, you’re buying into a social ideology that ultimately de-

grades what you do.

Upper class people have always appropriated anything culturally

defined as high whether or not they have any autonomous inclina-

tion toward it or any natural facility at it. They sully reflective un-

dertaking as a prestige totem. Professional class and rich parents

shove books and art down the throats of even their most ill-suited

and resistant children so their children can wear cultivation as a

badge of social superiority in adulthood. Caste isn’t just about dis-

possession and disrespect for those born low; it’s also about distor-

tion of culture and perversion of psychology for those born high.

The children of Tiger Moms aren’t born, they’re bred. And if

Mom’s a tiger, Junior is likely a sheep, though an excellent one. I

highly recommend to our faculty Bill Deriesewicz’s best-selling

book, Excellent Sheep. And I’m attaching the chapter from my

manuscript entitled The Social Distribution of Intelligence. If you

can’t hear it from me, maybe you can hear it from Bill since he’s an

Ivy League faculty brat who got his Ph.D. at Columbia and taught

at Yale. He’s someone you’d claim as one of your own, so you

can’t dismiss him as readily as you can dismiss me.

Working class and underclass people, in turn, typically respond to

social and psychological ownership of higher education by the

high born with defensive rejection. They get the message that uni-

versity education isn’t their cultural property and, without the ben-

efit of a casebook, they understand that property is held to the

exclusion of others. They often view higher education as a set-up

for humiliation and failure because, for them, it often is.

While most on the faculty got where they got because of their

breeding, the farmworkers’ kid and the floor refinisher’s kid who

sit before you got here despite their breeding. You can’t get from

where they started to here without the intellectual capacity to do

law. But faculty certainly could be too arrogant, too insular, and

too socially incompetent to teach them. Take a break from laurel-

ing one another for the lines you’ve crossed and consider how

short a distance you’ve travelled before you dismiss our current

students as stupid.

Being in your classroom at all is emotionally and culturally

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freighted for a kid like this. And when the going gets rough he

can’t fall back on the people back home. The people back home

don’t know the terrain and they can’t help. Some of the people

back home even view him as a traitor and would take satisfaction

in his failure. For him it would also be horrific loss of face to turn

to them because he was always the child who could, and suddenly

he feels like he can’t. In fact, as the child who could he’s likely

being called on to rescue them in one way or another on the as-

sumption that school is something he’s got down because he al-

ways did.

Subjecting this kid to traditional law school pedagogy is Dicken-

sian. I’m not remotely suggesting he should be spared rigor; he’s

entitled to rigor. But anyone who can’t do rigor with respect

shouldn’t be teaching here, if anywhere. If you make people who

don’t know what you know feel stupid, you’re not a teacher.

I’ve begun each academic year telling my students the difference

between them and me in this context has way more to do with expe-

rience than it has to do with intelligence. “If I couldn’t run circles

around a room full of newbies after years of teaching,” I say, “I’d

have to be pretty fucking stupid.”

It’s really important that you understand that I’m not making a

case for disadvantage. I’m not asking you to turn on the mission-

ary shtick, which is one of the uglier expressions of educated lib-

eral upper-middle class culture. These kids don’t need your

condescension any more than they need your arrogance. I’m ask-

ing you to climb out of your insularity and conceit and drop both

the arrogance and the condescension. I’m asking you do to some-

thing far more difficult and far more radical than being a liberal

missionary: I’m asking you to renounce your belief in your innate

personal superiority. That belief is the social class equivalent of

white supremacy, and it’s morally vile.

But it’s the belief that motivates and animates your social class.

When you pressed me for my views after a curricular reform meet-

ing last spring, [Dean], I started to explain my view of the funda-

mental problem: that you and most of your colleagues are

culturally and emotionally invested in believing that you’re vastly

smarter than everyone else.

You physically recoiled when I said that. That’s how deep your

belief that you’re some sort of intellectual ubermensch goes, and

that’s why I’m writing with a jackhammer: I’m trying to reach you,

and to reach your colleagues. I’ve used the word stupid liberally in

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what I’m writing because I’ve noted how easily that word flows

from your lips. One thing I’ve always liked about you, [Dean], is

that you actually say what most of your colleagues tacitly think.

There’s a lot about the culture I came from that’s ugly. There’s

tribalism and xenophobia, there’s subordination of women and vi-

olence and substance abuse. And some of what’s ugly about it is

even formally institutionalized: I lapsed as a practicing Catholic

decades ago not just because I refused to abjure my sexuality but

also because of the Church’s institutional misogyny and its histori-

cal role as colonizer of the heart in the grand sweep of Western

imperialism—a historical role the last two papacies shockingly

seemed to affirm.

I suppose it’s easier for me to be frank about the evil in my culture

of origin because I left it as a matter of self-preservation. Having

been born, educated, and employed all on the same rung of the

ladder, on the other hand, it’s hard for you to muster critical per-

spective on your own cultural assumptions and to distinguish be-

tween them and something closer to objectivity in the way someone

with multiple cultural perspectives can. But that’s all the more rea-

son for me to ask again: How about you? What about your culture

is ugly? What were you bred to believe that’s morally and empiri-

cally wrong?

People who owe high educational and social status to social and

economic heredity have a long and ugly history of biologizing their

status, of believing and socially asserting that their social and eco-

nomic patrimony is instead some sort of innate superiority unique

to them or to their families. They essentialize human intelligence

because they inherited its trappings and the conventional modes of

its social expression. And they drive their children mercilessly to

validate their pretension to innate superiority. If you think I’m ex-

aggerating or being unfair, consider that New York City now has

advanced placement kindergarten—and advanced placement kin-

dergarten test prepping. If you aren’t repulsed by that, your moral

sensibility and mine are irreconcilable.

Protest your liberal politics all you want; what you and most of

your colleagues believe about yourselves and about other people

puts you in bed with Charles Murray. When people back home tell

me that at least Republicans are up front about who they are, I

can’t argue with them.

In the social world I grew up in, you could be better than other

people at something. But the minute you crossed the line into belief

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that what you excelled at somehow meant that you were better than

other people, you got smacked down, smacked down hard and

smacked down fast. In that way, at least, the social morality of the

culture I came from is better, vastly better, than your culture’s. I

came from a culture of solidarity while you and most of your col-

leagues come from a culture of virtuosity. You’ve almost com-

pletely excluded from the faculty anyone from a culture of

solidarity in the name of your superiority and our inferiority, and

in so doing you’ve fundamentally subverted the traditional educa-

tional enterprise of this school.

For most of its history this school’s teachers were their students’

social if not situational equals. The professor of course wielded the

power in the classroom, but he came from the same social and eth-

nic group as his students so he didn’t view himself as a superior

species. He could be a taskmaster without compromising his cama-

raderie and solidarity with his students. Over the course of the past

few decades, the law school devolved into a school for the also-ran

children of Mill Valley, Piedmont, and Hillsborough. During those

same decades, its doctrinal faculty became populated by people

from elite schools, schools that have always been socially and eco-

nomically exclusive.

And during those same past few decades this country has suffered

a harrowing reversion to pre-New-Deal class structure. We’re as

economically stratified today as we were in the first Gilded Age.

The tier of schools whose degrees have become a de facto prerequi-

site for a doctrinal faculty position in our law school have also

reverted to their Gilded Age socio-economic composition—not

that they ever varied from it in any significant way.

Since the crisis, I’ve been thrilled to see the law school begin to

return to its roots in enrolling working-class, underclass, and immi-

grant kids in much greater numbers. These kids required recalibra-

tion of my teaching and much more work, but I was never happier

and more satisfied in my job than I’ve been for these past few

years. I’ve savored my work with the kids who could, the kids from

unlikely circumstances who got to Cal and from there to my class-

room. If you can’t find intelligence in these kids it’s because you

can’t find intelligence beyond the social and economic mirror. Un-

reflective presumption about who’s smart and who isn’t is certainly

flattering to the egos of those with the conventional social trappings

of intellectual superiority, but it’s not honest. Anyone morally and

socially fit to teach at this school has to start from that premise.

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I’ve walked into the classroom presuming that I knew how to do

something my students didn’t. And I’ve understood, morally, that

that knowledge and experience didn’t and doesn’t make me supe-

rior to them, but just more knowledgeable and experienced. I

didn’t throw out that baby from my native cultural formation with

the bathwater of tribalism and sex-phobia, despite your culture’s

profound influence on my life and my otherwise substantial assimi-

lation to it. I think that’s why I’ve been able to learn from my stu-

dents and they’ve been able to learn from me. They know when

you genuinely respect them and want to engage with them, and if

you do they’ll let you in. Then you get the fun and satisfaction of a

wonderful and productive intimacy with them. If you’re lucky, the

bond grows into something not entirely unlike a love affair. But

you’ll never be able to effectively teach them until and unless you

recognize how much you have to learn from them. Without that

mutual respect—and that humility—you’ll never connect with

them in a meaningful way.

I don’t remotely know how it feels to be non-white in American

society. I do know intimately how it feels suddenly to be in a for-

eign and intimidating educational environment, abruptly to feel

stupid and incompetent there, and to spin into panic and confu-

sion. And of course I know the profound and harrowing otherness

of growing up gay in a clannish, provincial, Catholic ethnic factory

town many decades ago.

My life experience has left me emotionally attuned to otherness and

vulnerability in my students, even when I’m quite literally ignorant

of their experience. This is why and how I’ve learned so much

from them. I’ve always known there’s so much they know and un-

derstand that I don’t. We’ve coached each other. I could never have

been their teacher without also having been their student.

You can’t either. If you can’t learn in a way you didn’t on an elite

campus and in your childhood preparation for an elite campus—if

you have a hard time learning in a way that’s not culturally famil-

iar to you—welcome to their world with you as their teachers. How

would you like it if they dismissed you as stupid because you don’t

understand them?

If you teach in a way that, as a practical matter, is socially exclu-

sionary, you’re not teaching other people how to think; you’re

practicing the bigotry that’s at the core of your social class’ self-

replication. And if you won’t deconstruct your own breeding,

you’re the ones whose thinking needs some work. If the modern

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scholarship of social relations teaches us anything, it teaches that

much of what were believed to be biological verities are instead

social constructs. So how does that insight apply to your purport-

edly innate intellectual superiority, [Dean], and the purportedly in-

nate intellectual superiority of your colleagues? Is that the rare

instance of biological verity, or is it social construct?

But deconstructing your breeding is subversive for excellent sheep.

It’s scary to take off the blinders that have always kept you trained

on the next rung up, the blinders firmly affixed to your head by

your parents and maybe firmly affixed to their heads by theirs.

Looking around instead of always and only up risks the single-

mindedness that got you where you are.

I think this, more than greed or self-aggrandizement, is behind the

professional class mania for remaining always busy. If you al-

lowed yourself a free moment you might actually think outside the

mill of professionalized thought. And that, of course, is fraught

with risk that you’ll become distracted from the climb. Looking

around instead of always and only up risks reflection about what

you’re doing and imperils the climb with the menace of ambiva-

lence. But this is the stuff of moral deliberation, and if you won’t

do it you shouldn’t be teaching anybody anything. If you won’t do

it you should use your fancy degree to get lots of money and power

at a law firm where moral deliberation is derided as sophomoric.

I’m not saying I think there’s no natural variation in human intelli-

gence. But could it be more obvious that its social measurement

and assignment are profoundly political? When have the socially

dominant ever failed to pronounce themselves innately intellectu-

ally superior, and innately superior in virtually all ways? Hitler’s

hissy fit when Jesse Owens won was nothing new when it happened

and it’s nothing old now. The sex-based math performance gap has

steadily shrunk with the educational advancement of women. The

race-based gap in standardized test scores has steadily shrunk with

social policy enhancing the status of a self-perpetuating black up-

per middle class to something more closely approximating the sta-

tus of a longstanding, self-perpetuating white upper middle class.

And the class-based gap in standardized test scores has steadily

widened with the reversion to pre-New Deal class stratification this

country has suffered in the past forty years. So much for biological

verity. My money’s on social construction—and it was long before

I knew that was what academics called it.

In this context, the only morally safe and empirically sound way to

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proceed is with the objective acknowledgement that you know how

to do stuff your students don’t. Whether they don’t or don’t yet

depends rather dramatically on you. If you pollute the classroom

with the conceit of innate personal superiority, the kids will very

likely validate it for you. And because that conceit is the animating

belief of your social class, your class’ dominance of the doctrinal

faculty is a moral and practical disaster for this school and for

others like it.

In my teaching career I’ve tried to renew and modernize this

school’s tradition of camaraderie and shared sense of identity be-

tween teacher and student built on the social if not the situational

equality of teachers and students. I’ve tried to do this in a twenty-

first century context where the teacher isn’t an Irish Jesuit but an

openly gay man and the students aren’t all Irish and Italian SI boys

but the majority minority kids of a post Prop. 209 UC system en-

rolling vastly more first generation college students from ordinary

working families than it did in your day and vastly more than East-

ern schools ever have or ever will.

The sociological composition of the doctrinal faculty is the biggest

impediment to the renewal of the law school I believe in and have

attempted to live in my teaching. My moral sensibility shouldn’t be

under siege and my cultural perspective shouldn’t be extirpated on

the law faculty of a Jesuit school because you can’t seem to find

anyone you think is as smart as you in the social realm I came

from. Have your culture of conceit at Harvard; a school like USF

should be a haven for the culture of solidarity that built it.

The university should set a goal of proportionality by class back-

ground in the composition of the law faculty. In service of this pol-

icy the university administration should institute a rebuttable

presumption that elite-schooled faculty candidates are morally and

socially unqualified to teach here.

The university should also end the doctrinal faculty’s exclusion of

skills faculty, librarians, and program administrators from voting

rights. The skills faculty, the librarians, and program administra-

tors are a far more genuinely diverse group with a much more re-

spectful and productive connection to the students than the

doctrinal faculty.

There’s an urgent practical reason for ending the doctrinal faculty’s

monopoly on institutional power in the law school as well: The

school’s current peril is about student outcomes, not SSRN rank-

ings. Morality aside, exclusively empowering the faction of the law

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school with an overwhelming stake in the latter and disdain for

what they view as the yeoman’s labor necessary to improve the for-

mer is just plain bad institutional policy.

When I said at the outset of this message that it’s been a privilege

and a great pleasure to teach our students, I wasn’t mouthing a

retirement platitude. Of course not my every interaction with my

kids has been great, but the joy I’ve experienced from knowing my

students and from the intimacy of teaching beginners left me in

tears when I broke my news in my last classes. I’m looking forward

to getting drunk with my kids before Trent and I launch.

I think getting to do something that engages and satisfies you and

that bonds you to the people you do it with is lucking out—and I

did in my teaching career. But for too many on the doctrinal

faculty, it’s all about the next rung up. I’m sure many of you would

ditch this school in a heartbeat for a higher-ranked school—if you

could. I distinctly remember being taunted by a tenured faculty

member, many years ago, for my lack of ambition because I just

wanted to teach what I’ve taught.

So if you were really smart and you had ambition, you’d want to

teach in an amphitheater of eighty kids where you can’t create and

enjoy and profit from the intimacy of a small seminar. And you

wouldn’t want to experience the wonderful and engaging intimacy

of coaching bewildered and insecure newbies because there’s more

prestige and status to be had in teaching upper division doctrinal

law.

That’s the way most on the doctrinal faculty were bred to think,

and the way you guys unreflectively continue to think. And that’s

why I think you’re the ones who need to be taught how to think.

It’s also why you don’t deserve these kids if this school isn’t your

first choice.

I guess ambition is relative. I like my native culture’s understand-

ing of it better than yours.

Sincerely,

Brian

B. One Educator’s Reaction to Brian Mikulak’s Letter

Brian’s letter is brilliant and often led me to shout out “Exactly!”

His linking the idea that professors often make the law more compli-

cated than they need to (I absolutely love the line that “legal think

chews more than it bites off”) with the emotional needs of ladder

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faculty (who define their identity as scholars) is right on the money. A

case is a utilitarian document, and too many faculty lose sight of that.

The last half, in particular, was thoughtful and, at times, moving.

When he contrasts himself to ladder faculty by stating that he was

“emotionally attuned to otherness and vulnerability,” I absolutely be-

lieve him and have often felt the same way. But I wonder if he left

some money on the table. He doesn’t put it this way, but I perceive

him as pushing two theses. One of the big problems I have with legal

education is that faculty who rarely practiced law are teaching stu-

dents how to be law professors rather than lawyers. Their focus is on

the law rather than lawyering. Brian’s letter tackles many of the rea-

sons (identity formation as a bigshot critical thinker leaves no oxygen

for thinking of oneself as the transmitter of a legal method to the next

generation of practitioners—there’s more glory in the former than in

the latter). But there are other reasons—it’s hard to think of oneself

as a practitioner when you’ve never practiced (so let’s talk “theory”);

it’s hard to discuss the professional development of a lawyer’s career

arc when you never experienced it (so let’s talk “theory”); it’s hard to

find something wrong with law school pedagogy when you thrived on

that pedagogy (so let’s not change a single damn thing about the sys-

tem, because I’m the cream and I rose to the top in this system); it’s

hard to teach students how to respond to conditions of uncertainty

(should I object or not?) when you’ve never faced that uncertainty (so

let’s talk “theory”).

I guess what I’m saying is that I thought Brian’s crescendo would

be about imposter theory behind the podium. Heaven knows our stu-

dents feel the “I really don’t belong here, so how do I make it by

faking it?” conundrum. But there are people who feel like imposters

behind the podium, and it’s in their interests to strive for opaque the-

ory (things that feed their ego, things that they feel some mastery of)

over teaching the next generation of great practitioners (too small a

role for their great minds, too scary to discover that maybe, just

maybe, the Emperor has no clothes). I read Brian as thinking the

problem is smug elitism, but, maybe, it’s just abject fear. Or far more

likely, an intermingling of both.

VIII. S

KETCHES OF

HAT

OULD

A few readers of Part I and a draft of this Part II have exhorted

me to offer a concrete proposal. They feel stuck, maybe a bit para-

lyzed, in the face of inertia and of the necessity of so much change.

Much as they agree with the Alternative Vision, they feel bewildered

and even intimidated. “Yes,” they’ve said, “I’m on board—legal edu-

cation can and must be better. But what precisely would you suggest

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we do?”

Most others who have read both Parts, however, strongly disa-

gree. These agitators insist that everyone who still aims to transform

legal education should feel the need to shoulder their fair share of the

burden. Face the blank screen and write something, they insist. After

all, those who believe in the Alternative Vision and feel like putting in

sweat labor would, presumably, be seeking to transform their own law

schools, where they know the students, the staff, the faculty, the com-

munities. They have much of what it takes—and quick access to lots

more needed—to begin designing one or three iterations of the Alter-

native Vision adapted to their circumstance.

Besides, they’re almost never alone. If they can recruit (or al-

ready have working with them) other folks, they can do this all the

more readily. At this point, the agitators say, we should be searching

for our own variations on a theme, not trying to harmonize up. Per-

haps in time, when many wise iterations have been tried out and im-

proved, we’ll have many ways to make better music. But let’s learn by

doing. Besides, the doing we all would most have to do is scouting out

and borrowing already-made learning opportunities going on around

the country and maybe even in our own schools.

I agree with the agitators. No surprise there, I suppose. But I did

take one small step to help get us “unstuck,” at least if that’s how any

of us may feel. I asked some people who had read Parts I and II to

very swiftly sketch their initial ideas for transforming “their law

school.” I told them to take flight, an email brainstorm, not intended

to be anything like complete, anything like fully “rationalized.” These

five folks were generous enough to spend time they don’t really have

offering sketches they authorized me to share. I’m keeping these

anonymous, though much of what you shall read feels at least as per-

sonal as institutional.

So here are some ideas—not answers, not proposals, but ideas

from people who know and care lots. You should know they do not

know the names of the other authors, and they did not initially read

one another’s initial drafts. You can like what they have worked hard

to produce, hate them, or feel ambivalent about them. But by all

means engage them, and treat them with respect. After all, not many

are willing to put themselves out there. And when it comes to trans-

forming legal education, many and perhaps most who care deeply feel

a bit at sea offering their own feelings and thoughts, at least at first.

Sketch No. 1

Despite the conventional thinking, we almost never train to be

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the best at something by only doing that thing. For example, as a child

I trained (or was trained) for 15 years by the American School of Bal-

let to be a professional ballet dancer, but I did much more than ballet.

I was required to take classes in jazz, modern, flamenco, ballroom,

and character and folk dance; I trained in pointe shoes, but also bare-

foot, in soft jazz shoes, and in heels. I had to learn to read music, to

play piano, and to play character instruments like the castanets (for

Sevillanas). I had brief immersions in kinesiology and Labanotation.

Looking back, I realize that even what I learned about different tech-

niques to sew ribbons and elastic on pointe shoes (I went through 2-3

pairs a week) was a small but important part of my educational expe-

rience “learning” ballet.

I also just watched. I watched as much dance as I could, of all

types. I read voraciously and omnivorously. I intuited that if I was

going to communicate a story and emotions without words, I needed

to know how good stories were told. I diligently listened and tried to

appreciate opera. Despite my mother listening to Aida every day in

the car, I can’t say it set in. Thanks to Theater Development Fund

tickets, and Christmas family splurges, I saw much of what New York

theater had to offer in the 1980s and 90s, from Oleanna and Six De-

grees of Separation to 42nd Street and Les Miserables. (Yes, and Cats.

Twice.) I performed at the New York State Theater and the Metropol-

itan Opera House, but I also performed with smaller, lesser- to barely-

known companies, where, in addition to learning my roles, I learned

about sets, fixing my own costumes, and applying my own stage make-

up.

Much of this learning, perhaps most, didn’t come to me through a

single curriculum. My training was a patchwork inspired by different

programs, coaches, and self-direction, driven by occasionally un-

healthy doses of “healthy” competition. Today, many training pro-

grams have evolved something closer to a single, coherent yet diverse

curriculum that includes ballet, other dance, physical training, and

music.

155

At the North Carolina School for the Arts, high school stu-

dents training to be professional dancers are required to take inten-

sive ballet classes, partnering or adagio, dance composition,

improvisation, and character dance, as well as traditional high school

courses.

156

Undergraduate students also take contemporary dance,

costuming, history of dance and dance music, a dance pedagogy

course, a choreography workshop, traditional liberal arts classes, and,

155

See, e.g., Summer Course in NYC,S

CHOOL OF

MERICAN

ALLET

, https://sab.org/

summer_programs/summer_course_in_nyc/curriculum.php (last visited Jan. 28, 2018).

156

See High School Ballet, U

NIVERSITY OF

ORTH

AROLINA

CHOOL OF THE

RTS

https://www.uncsa.edu/dance/high-school/classical-ballet.aspx (last visited Jan. 28, 2018).

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Spring 2018] Transform Legal Education 425

perhaps most surprisingly, a business class.

157

When I think about what a new law curriculum could offer, I

think about these experiences. I also think about the professional

training to become an architect (a profession I also considered). We so

easily accept that architects inhabit a grey area between art and sci-

ence, sculpture and engineering, humanity and industry. And their

training reflects this acceptance. Architects take both drawing classes

and physics classes. They often must actually build a building they

have designed—not just supervise the construction, but “physically

participate.”

158

They take classes that contextualize their work, like

urban design and introductory planning, and they often must take at

least one history class.

159

They are encouraged to learn the nuts and

bolts of everyday practice in courses ranging from digital media to

firm and project management.

160

At many schools, students spend

their last year of training in extended problem solving exercises, de-

signing structures that address the problems and needs of actual or

potential clients and communities, and getting regular, often weekly

feedback, from peers and instructors, through “crits.”

161

While law has historically struggled with similar dualities—is it a

trade or a profession? is it an art or a science?—we have failed to

understand how a “both/and” understanding of the duality could en-

rich our practice, much less integrated those different facets in the

curriculum. In my experience, most schools overemphasize the “sci-

ence” of law (assuming there is such a thing) and downplay the art, or

minimize it by calling it “soft skills.” If an architect were taught only

physics and structures, and was essentially left to her own devices to

master artistic skills, the world would likely be an ugly and dysfunc-

tional place. Yet, this is how we have designed, cobbled together,

somehow arrived at, modern legal education: Learn the “science” and

get the art on your own time. Maybe you already have the skills,

maybe you’ll seek them on your own, or maybe you’ll get them

through some seminars or a clinic, if you have that opportunity. And

while educators in other disciplines appear to have accepted the obli-

157

See Undergraduate Classical Ballet, U

NIVERSITY OF

ORTH

AROLINA

CHOOL OF

THE

RTS

, https://www.uncsa.edu/dance/undergraduate/classical-ballet.aspx (last visited

Jan. 28, 2018).

158

Building Project, Y

ALE

CHOOL OF

RCHITECTURE

, http://architecture.yale.edu/

courses/building-project-1 (last visited Jan. 28, 2018). The Building Project is required of all

Masters of Architecture students at Yale.

159

See M. Arch. I: First Professional Degree, Y

ALE

CHOOL OF

RCHITECTURE

, http://

architecture.yale.edu/school/academic-programs/march-i (last visited Jan. 28, 2018).

160

See id.

161

See Architecture [and] *: Core I Syllabus, C

OLUMBIA

RADUATE

CHOOL OF

RCHI-

TECTURE

, P

LANNING AND

RESERVATION

, https://cdn.filepicker.io/api/file/qBEd525wT5u

VWH3sHnwC? (last visited Jan. 28, 2018).

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426 CLINICAL LAW REVIEW [Vol. 24:247

gation to teach the requisite skills for the business side of everything

from ballet to architecture, law schools, particularly elite law schools,

generally reject the proposition that a lawyer should know something

about managing a business. This notwithstanding the fact that many of

our students at all our schools have never had a job and go on to

manage and practice in solo or small firms.

162

To my mind, a good lawyer is a good problem solver (this will

surprise no one who read the prior 100+ pages). A good problem

solver can assess a problem from all different angles, can sense both

the harmony and discord permeating a problem, can stand (or try to

stand) in the shoes of every person and every group involved, can help

co-participants in the problem-solving, whether lay or expert, surface

latent benefits, opportunities, risks, and anxieties. A good problem

solver, like a skilled photographer, operates with attention both to the

smallest details and to the broadest dynamics of context, relationship,

and perspective available in the situation. And she can move comfort-

ably between both perspectives. It is clich ´e that lawyers must excel at

persuasion. We understand that persuasion asks broadly how we

speak to, and write for, different audiences to convince them of our

reasoning or make them feel a specific feeling. But our teaching, as it

stands, doesn’t answer that question. We teach persuasion as if it were

a science problem (e.g., IRAC), rather than an art that requires a stu-

dent to read and understand an audience, and that might well require

them to pivot unexpectedly and courageously, the same way that a

dancer will follow the conductor in the orchestra pit who changes the

pace of the music (or that same conductor herself might wait for the

violinist who holds a pause for an extra beat).

Many 1L students are scared and overwhelmed, yet simultane-

ously bored and disconnected. Once you’ve briefed a handful of cases,

it becomes mechanical. Once you know the math of IRAC, you can

apply it to anything—and pretend you are getting the “right” results.

The reality is that much of lawyering can indeed be reduced to

formula, and although these formulas (and rituals and vocabulary)

must be learned, it doesn’t take three years. Lawyering in its highest

form is much, much more than formula. It is the art of choosing how,

when, and why to deploy (or not) these formulas, rituals, and vocabu-

lary. In the new legal curriculum I dream of, we’d embrace the art of

lawyering, even if becoming more like musicians and less like sur-

geons results in diminished status or salaries.

My dream curriculum would also incorporate the notion that eve-

rything in our respective worlds is a legitimate input to our lawyering,

162

See Meredith R. Miller, Designing a Solo and Small Practice Curriculum, 83 UMKC

L. R

. 949 ( 2015).

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Spring 2018] Transform Legal Education 427

in the same way we acknowledge that environment, experience, and

interactions are important fodder for an artist. We would give students

more freedom to explore and expand their worlds as part of their pro-

fessional education. We would not only encourage, but mandate that

they read fiction, listen to music, learn to see the world differently by

learning to draw. We would push students to take classes in other

schools, with other types of students. Just as training to be a ballet

dancer involved the study of obviously related and seemingly unre-

lated subjects, so, too, should legal education.

The fear may be that such a curriculum would “give credit” for

“whimsical” activities. The legal academy may not understand or

trust—let alone embrace—activities outside the traditional curricu-

lum. But that doesn’t make them all cotton candy, And if we even

suspect the most whimsical activities might improve the quality of law-

yering, and the experiences of attorneys and clients, why wouldn’t we

try to use these activities in our curriculum? And, honestly, would it

be so bad for law students to have some fun and find some new joys in

their education (beyond or even instead of school-sponsored, alcohol-

focused events)?

* * *

My dream curriculum would dedicate the first year slowing down.

Rather than drowning students in new vocabulary and rituals, and

rather than minimizing, even disparaging, the skills that students al-

ready possess when they arrive at law school, my first year curriculum

would shore up the skills of listening, observing, documenting, and

interpreting that they already have. Students need to understand how

they see the world and hear the people around them. They need to

understand deeply that when others are looking at the same object,

they may see it differently, or that when they hear the same words,

they may extract a different meaning. Students in my curriculum

would take intensive classes that focus on developing these observing,

listening, documenting, and reading skills not just in the classroom but

out in their communities.

In the classroom, students would practice listening and observing

by studying art, music, movies, theater. Yes, they may resist (though

arguably no more than they resist traditional Socratic teaching). And,

yes, they can learn even if they are not afraid. In the community, stu-

dents would begin by exploring and describing the community outside

of the law school (aka the real world), and getting a sense of the con-

text in which they will live and lawyer for three years. What does the

place look like? How does it work? Who lives and works there? How

do they interact with others in the community? What do daily lives

look like? This process of exploring, describing, and documenting,

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428 CLINICAL LAW REVIEW [Vol. 24:247

which should lead to further and deeper exploration, would attune

students to the value of their own curiosity and intuition. At the same

time, first year students would take a class on the history of legal edu-

cation and the legal profession. Just as they need to understand the

broader context in which they live and lawyer, they should understand

and question the professional enterprise they have joined (its history,

context, and future). They would also take a class on collaboration, to

identify their own approaches to work and relationships, develop a

common vocabulary, and begin to learn collaboration models and

strategies.

In their second semester, students, working in teams, would con-

tinue to investigate and document their communities, but would add

an intensive research class. Students would learn how to research

cases and statutes, as they do in a traditional Legal Research and

Writing class, but they would also learn how to navigate and use legis-

lative histories, transactional databases, court dockets, property

records, IRS records, and many others. They would do this in the li-

brary, but also out in the world—in courts, city halls, and musty

archives. Students would hone their reading skills, critical to law-

yering. As in the first semester, they would learn to be close, attentive

readers by studying both legal and non-legal texts, fiction and non-

fiction.

Instead of doing a full-time internship or clerkship the first sum-

mer, experiences which, at least anecdotally, often have limited value

and no remuneration, students would take two classes: either Civil or

Criminal Procedure and Constitutional Law. That is, they would be

immersed in relatively traditional legal work only after sharpening

core skills their first two semesters. A procedure class would give stu-

dents practice manipulating rules of procedure and understanding

their interdependence, which they could, in turn, apply to other are-

nas. Constitutional law would teach them about key cases and U.S.

history, and would provide an introduction to reading and analyzing

court records and opinions. All classes would have no more than

twenty students. They would be interactive, explicitly drawing on the

observing, listening, and reading skills from the first year. Students

would also be encouraged to teach each other, and would be rewarded

for doing it well. Both classes would draw on broader materials than a

casebook and would engage the human context of cases and legal

change.

In their second year of law school, students would spend the first

semester working in teams to identify and define a problem that they

uncovered during their time in the community the previous year. This

iterative process of problem identification would rely on students’ re-

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Spring 2018] Transform Legal Education 429

corded observations and interviews, but would also require them to

return to the community to vet and refine their hypotheses. Students

would take two classes of their choosing, one a litigation class and the

other a transactional law class. These classes would provide an intro-

duction to different areas of law and different types of lawyers, just as

I studied both Balanchine and Ashton ballet (even though I knew

with certainty which type of dancer I wanted to be). Like their first

year classes, these classes would be very different than a traditional

Socratic method class.

In their second semester, the student teams would generate and

evaluate strategies for the problem they identified, continually engag-

ing the community in their process. They would again take two classes

of their choosing: a policy or legislative class and a class on interna-

tional or comparative law. The policy or legislative class would com-

plement the litigation and transactional classes and an international or

comparative class would enable students to see legal issues from the

community or their other classes through the lens of a different legal

regime and to connect local with global, domestic with foreign. Stu-

dents would work on their writing skills throughout the first two years:

They would write weekly reflections, descriptions of the community

and conversations with people, and summaries of potential problems

and solutions.

In their third and final year, students would take a clinic their first

semester and participate in an externship their second semester. The

clinic would require students to undertake a litigation matter and a

non-litigation matter. Instead of committing students to litigation,

transactional, or legislative practice, students would represent clients

in different types of matters, experiencing diverse clients, using an ar-

ray of problem-solving tools, building on their broad classroom expe-

rience, and articulating the similarities and differences across matters.

Once they had represented clients under close supervision and with

the support available in a clinic, students would move to an externship

placement.

In their final semester, students could choose the substance of

their externship placement (criminal law, family law, etc.). However,

it would have to be in a location or culture that would challenge them

in new ways beyond the set experiences of their first two and half

years, and provide a new opportunity for observation, immersion, and

reflection. A law student in NYC could do an externship in rural

Oklahoma; a law student in Minneapolis could do an externship in

Nairobi. The externship experience would oblige students to transfer

their law school skills to a fresh work situation and to adapt to an

unfamiliar place and culture, while still having the support and super-

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430 CLINICAL LAW REVIEW [Vol. 24:247

vision provided by the law school. The personal experience of being

the “new” person, potentially an outsider, is itself a rich learning expe-

rience, and would provide students a new perspective on legal

problems. During both third-year semesters, students could elect to

participate in bar preparation classes: as long as bar passage is re-

quired to be a practicing attorney (and that seems unlikely to change),

law schools should ensure that all students pass the bar as part of the

“core curriculum.”

My dream law curriculum would help students transfer and refine

the skills they had before law school; engage them in their community

at the beginning and throughout their education; and would reward

collaboration, not just competition. It would emphasize problem iden-

tification and definition, not just problem resolution, presenting law-

yers as the askers, not just the answerers, of questions. Rather than

forcing students into pigeon holes, the curriculum would give students

a broad foundation and the self-reflection and awareness necessary to

adapt what they learn to new contexts, new clients, and new areas of

law. It would give them the skills and the practice of making informed

choices about their careers.

We rarely train to be the best at something by only doing that

thing. Today, basketball players learn history and human rights from

their coaches;

163

football players are practicing yoga;

164

doctors are

studying art;

165

and actors are learning cobblery.

166

It is time for legal

163

See Kevin Arnovitz, Why President Trump Ignites Gregg Popovich, ESPN (Sept. 25,

2017), http://www.espn.com/nba/story/_/id/20809321/nba-about-president-trump-triggers-

gregg-popovich. Arnovitz recounts:

But rather than dive into the session with a strategic imperative or even a parable on

the virtues of resiliency, [San Antonio Spurs Coach Greg] Popovich began by posing

a question to the room. He asks, “Does anyone know what today is?’’. . . . In Austra-

lia, June 3 is Mabo Day, a commemoration of the nation’s most notable activist for

indigenous rights . . . . A few minutes into the seminar, a picture of Mabo appeared

on the video screen. . . . As the team’s head coach and senior executive, Popovich

preaches that curiosity about people—especially those unlike yourself—provides not

only a foundation for cultural literacy, but the building blocks of a better team. . . .

His players are routinely recommended reading. In SpursWorld, unfamiliar ideas are

to be explored, then discussed with those who will challenge your assumptions

honestly.

Id.

164

See Players Turning to Yoga as a Way to Stay in Shape, N.Y. T

IMES

, Aug. 29, 2015,

https://www.nytimes.com/2015/08/30/sports/football/players-turning-to-yoga-as-a-way-to-

stay-in-shape.html. Football players are unlikely practitioners of yoga, “given that one of

the tenets of football is to be aggressive and not back down.” A teacher who regularly

trains NFL players explains, “I stress breathing with the guys—it helps them on the field

and to remain calm in a stressful situation.” She “emphasized the mental aspect of yoga for

her clients—and its ability to heal emotionally and psychologically.” Id.

165

See Dhruv Khullar, What Doctors Can Learn from Looking at Art, N.Y. T

IMES

, Dec.

22, 2016. Khullar describes that, in his mandatory art class at medical school, “[f]or the first

time, [he] didn’t just look – [he] saw. . . a skill, perhaps more than any other, that lays the

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Spring 2018] Transform Legal Education 431

education to embrace its full humanity—including its artistic side—

and help our students see the wisdom and insight already inside them

and beyond the law school.

Sketch No. 2

A Law School Curriculum Utopia

Law school should be a training ground for attorneys, activists,

leaders, etc. of diverse fields (private sector, government sector, non-

profit, non-legal fields, etc.) to master legal skills through problem-

solving techniques. Under this utopian law school curriculum, a com-

prehensive understanding of justice and improvement of societal wel-

fare would be prioritized. Main objectives of this curriculum would be:

• Each year (1L, 2L, 3L) students will be required to take a se-

quence of courses or workshops that dismantles the regnant vi-

sion of lawyering by emphasizing the role of attorneys as

preserving and advancing justice, as problem-solvers (encour-

aging the uses of legal/non-legal strategies and community

building/networking), to explore multifaceted career opportu-

nities a Juris Doctorate degree can bring.

• This framework would do away with curve-grading. Alternative

forms of grading would be encouraged, or a combination

thereof, such as pass/fail (this is especially true during the 1L

year, where students need to expend their energies learning

core skills).

• The three-year curriculum would encourage interdisciplinary

and multidisciplinary forms of teaching. It would abandon

casebook-dependent/Socratic method forms of teaching and re-

place it with an interdisciplinary approach of black letter law/

problem-set models/legal skills-clinical exercises.

• A law school graduate should feel comfortable with the litiga-

tion process in at least five court settings and/or areas of law

(e.g., civil courts, criminal courts, administrative law venues,

foundation for good medicine.” Dr. Joel Katz, at Harvard, who teaches an art class for

medical students explained, “We’re trying to teach them to trust their vision, to look care-

fully before making judgments.” Students also learn to grapple with the ambiguity in both

art and medicine: “In both, we have to avoid prematurely narrowing our thinking.” Id.

166

See Julie Miller, Daniel Day-Lewis Quits Acting: A History of Fascinating Retirement

Attempts, V

ANITY

AIR

, June 20, 2017 6:03 p.m., https://www.vanityfair.com/hollywood/

2017/06/daniel-day-lewis-acting-hollywood. After shooting “The Boxer” in 1997, and

before shooting his next film, “Gangs of New York,” Oscar-winning actor Daniel Day-

Lewis devoted five years to learning shoemaking, apprenticing in Florence with the Italian

shoemaker Stefano Bemer. Day-Lewis said, “I simply need the time I spend not working in

films, the time away, to do the work that I love to do in the way that I love to do it.” Id.

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432 CLINICAL LAW REVIEW [Vol. 24:247

immigration law, family law, civil rights).

• Students would be prepared for the bar exam without the ne-

cessity of having to purchase a complete third-party bar exam

study program. By the third year students will have enough

practice rule-proofing, issue-spotting, concise writing in the

form of practice, as opposed to a skewed doctrinal teaching. If

supplemental bar study exam programs are required these

should be integrated into the law school curriculum.

Emphasizing Concepts of Justice/Dismantling Regnant Vision of

Lawyering

Introduce various theories/philosophies of justice throughout va-

rious sequential courses so as to have a diversified/well-rounded un-

derstanding of justice. The objective would be for students to see and

understand political philosophies and strategies from various lenses.

This is opposed to Duncan Kennedy’s suggestion that law school stu-

dents should be taught the left/right perspective. Although Kennedy’s

suggestion may have been limited to a left/right framework due to the

political atmosphere at the time, today’s current political climate

shows the dangers of reducing world visions to a “left/right” dichot-

omy. Also introduce materials from anthropology, archeology, sociol-

ogy, neurology, ancient histories, etc., to expand and polemicize the

students’ conceptions of justice, culture building, and law making.

Emphasizing Interdisciplinary Skills Throughout 1L, 2L, 3L

Current law schools disproportionately depend on doctrinal

teaching and the use of the Socratic method which yields very limited

legal skills for law school students. In combination with curve grading,

this educational structure only encourages petty competition, elitism

for the sake of elitism, and only further obscures the reality of attor-

ney practice. In a time where law school tuition is at its peak, nearing

$200,000, these antiquated forms of teaching provide an embarrass-

ingly limited set of legal skills.

The Problem-Set Model: First year, and some second year and

third year courses, would be organized around problem sets that

mimic real life, as opposed to dividing it by subject matter (property,

contracts, civil procedure, etc.). Such problem-sets can still prioritize

“core” subject matters during the first-year (criminal law, wills and

trust, contracts, civil procedure, etc.), but in the form of real-world

case scenarios. The objective would be to have students encounter

real-life case scenarios and be forced to approach the issues holisti-

cally (e.g., being forced to apply relevant elements of civil procedure,

evidence, client interaction, writing).

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Spring 2018] Transform Legal Education 433

For example, a course could require students to provide wrap-

around services to a family that has many needs:

Dad wants to incorporate a business and has various goals/

problems that require knowledge of business associations, tax law,

etc. Grandma and Grandpa want to ensure to protect themselves

and their assets as they age, while at the same time trying to plan for

their deaths and asset reallocation with minimal tax loss, they want

to draft reciprocal wills, pour-over trusts, and have end-of-life in-

structions, etc. Junior is getting a divorce and wants to maintain cus-

tody of his kids, and is already engaged to someone else and wants

to get a prenuptial agreement to marry the new person, but also

wants to adopt kids. Sister might get into legal troubles while at a

protest, maybe she experiences excessive force and now has civil

and criminal needs. The list goes on for each family member.

Each problem set will be accompanied with black letter law lec-

tures, through the use of lectures (could use carefully prepared

videos) and concise outlines (given to students out front; the black

letter law is no secret and its dissemination should not be discour-

aged). The doctrinal material will be taught in sequence with the prob-

lem set that the student will have to resolve. The substantive law

should be accompanied with the procedural tools necessary to get the

job done. The problem set can be structured so that the student has to

produce (1) a legal writing exercise where the student addresses the

family members’ concerns. This will likely be in the form of a letter to

the client, or maybe a letter to the ex-wife/husband, etc., explaining

the law and why the result is warranted or recommended; and (2) the

actual products (e.g., will, trust, incorporation, prenuptial agreement,

adoption papers, civil complaints, etc.). Students must learn to be

practitioners, not just theoreticians.

Upper-division courses can be tailored as desired to encourage

mastery of certain legal skills or subjects by presenting more complex

scenarios, focus on specific subject areas, and/or focus on certain set of

legal skills (direct/cross examination, appeal brief writing, depositions,

etc.).

Writing as a Skill Set: Since this utopian law school curriculum

would aim to develop targeted legal skills, it is likely that a quarter

system would help maximize problem-set scenarios.

At least during the first and second year, students will be exposed

to various writing exercises, as opposed to perfecting only two memo-

randa throughout the entire first year of law school. The goal is to

demystify writing exercises used throughout various aspects of the le-

gal profession by exposing their commonality, each having a common

denominator that is extensive, and easily adaptable to any legal as-

signment. These would include, but absolutely not be limited to, writ-

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434 CLINICAL LAW REVIEW [Vol. 24:247

ing a succinct research letter to a partner, letter to a client regarding a

legal question and other aspects of representations (retention letter

[professional responsibility], explaining various stages of representa-

tion, closing letter, etc.), practicing outlining, legal memorandum in

support of motions, bar-exam-style essays and performance exams.

The objective of these various exercises is not to give students

“mastery” over each specific type of exercise, but to demonstrate they

can learn the overall mechanics of legal writing, which is fairly routin-

ized with discernable patterns they can easily target to any writing

task. This will give students the confidence of knowing they can tackle

any legal writing exercise, regardless of whether it is a “new” type of

writing assignment they had not done before. As many practitioners

know, this confidence and set of skills is vital to succeeding in the legal

profession.

Upper-division courses can and should focus on advanced court

briefs, appeal briefs, including but not limited to circuit court appeal

briefs. These should be done in conjunction with internal memos to a

partner and letters to clients. Again, this will emphasize the common-

ality that the tasks entail, and thus expose the building blocks of legal

writing, regardless of how it is packaged or tailored for the specific

reader.

Courses in Career Development

Law schools currently lack courses that assist future practitioners

in their professional career development, management skills, and spe-

cialized area of law. While current clinical courses may focus on trial

advocacy, or take on a real-life case (asylum, post-conviction relief,

etc.), these courses are treated as “electives” and barely touch the sur-

face in terms of topic and skill sets.

Clinicals: In clinicals, students will work with real life problem

sets, with the assistance of top professionals in the field. This is both

useful for their own formation and central to what it means to be in

the legal profession, which in our school will focus on being a man or

woman for others; justice component; providing quality legal service

to people regardless of ability to pay. Clinical courses will be an exten-

sion of the problem-set courses that students are already familiar with;

this will provide students with client interactions, access to practition-

ers who are supervising their work, and possibly to a tribunal (e.g.,

immigration, or administrative law judge).

Advanced Training on Reading and Application of Governing

Law (cases, statutes, regulations): In other courses, students will gain

advanced expertise in a field through the use of the problem-set

model. Students will get problem sets that require them to prepare

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Spring 2018] Transform Legal Education 435

and file a brief in the area of law they hope to master. The problem set

will be very similar to a performance exam on the bar, in that the

professors will provide the students with a package of cases, statutes,

and regulations related to the substantive and procedural tools needed

to write the brief. The students will read the cases and discuss them

openly with the group. The goal is for students to be able to read

through long cases that discuss a plethora of topics to isolate the rele-

vant parts, to be able to analogize and distinguish where necessary,

and to use cases to give life to a statute. Students will use their own

judgment to write their product.

Case Management/Task Management: Different fields require va-

rying time management skills depending on the area of law and nature

of the work/office structure. Such a skill set is far too ignored by law

schools despite its everyday importance for practitioners. Such a skill-

set is not uniform, rather, a variation on knowledge to be mastered

depending on the area of practice, whether the office focuses on im-

pact litigation, direct legal services, etc. Courses would be developed

to assist in time management, case management, task management,

and delegation and supervision of assignments. While nothing can re-

place real-life practice, graduating students should know how case

management systems function, how to manage a high volume

caseload, how to manage staff, and when and how to delegate tasks,

either internally to staff or to third-party contractors.

Professional Development: A course or set of courses would be

developed to demystify career paths and assist in developing skills for

such path. For example, if a student wishes to be a sole practitioner, or

open a firm with attorneys in other areas of law, students should grad-

uate with basic skill sets to know where to start. This would mean

more than simply learning different types of law firm formations; it

would include learning business skills, risk of creating such agree-

ments, incorporating pro-bono services, marketing, etc. Students hop-

ing to be Executive Directors of non-profits, who wish to become

judges, or who want to become partners of a mid-size or top-20 law

firm should have a more concrete understanding of how to arrive on

such path within a desired timeframe.

Emphasis on specialization, practice and professional develop-

ment is not only necessary to slowly dismantle deep-entrenched nepo-

tism in the legal field, but would also create strong, loyal alumni that

know the value of such curriculum and continue to invest in the

school.

Diversity Outreach Summer Programs

Outreach diversity summer programs before law school should

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436 CLINICAL LAW REVIEW [Vol. 24:247

continue to exist. It is the hope that this new curriculum would elimi-

nate the need for such outreach programs, however, it will likely take

years, if not decades, of retraining law schools (administration, faculty,

law school culture) to eliminate the regnant way of lawyering.

Bar Study Courses

Given the exorbitant amount of law school tuition, it is absurd

that law school students have to pay thousands for a bar exam course.

Students would already be fully trained in issue-spotting, bar exam

essay writing, etc., after a three-year curriculum emphasizing the

problem-set model. However, until students and instructors adapt to

such a curriculum, the law school would be responsible for offering a

quarter course for the bar exam. The concept is that law schools

should be responsible for training their students on passing the bar.

Demystifying Abusive Practices in Legal Positions Throughout

Summer Internships, Externships, and Post-Graduate Legal

Positions

Unfortunately, law school students and recent graduates are un-

prepared to tackle overt and implicit forms of discrimination and abu-

sive behavior in the workforce, including exploitation. These patterns

start from the hiring stage to everyday office practices, however they

are rarely ever discussed in a classroom setting, much less introduced

as a topic for learning.

For example, non-profits may take advantage of first generation

bilingual speakers to conduct intakes in their direct legal services pro-

gram—recent graduates take these positions with the romanticized vi-

sion that they are directly helping their community, and while they

are, they are also blinded to the limited set of legal skills they will

obtain, to the limitation for career mobility, unfair workload/caseload

and impossible salary. This contributes to a dual system in which white

law students are given the legal writing and research, and essentially

groomed to get competitive legal jobs upon graduation. Monolingual

English speakers should do intakes, even if it means they need to

work with translators, and bilingual students should be given the same

substantive assignments that monolingual white students get. Other

examples of abusive tactics include mission-driven nonprofits that at-

tract young lawyers who are true believers, but who are exploited pre-

cisely because their belief in the mission makes it almost certain they

will accept being overworked, underpaid, inadequately supervised,

and otherwise exploited.

These issues can be demystified through a series of either well-

organized panels and/or shared experiences within the classroom by

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Spring 2018] Transform Legal Education 437

honest professionals who can expose and testify to such abusive pat-

terns. Instructors and legal professionals can work together to provide

suggested solutions for students, whether it be skills speaking to a

manager, partner, etc. Furthermore, this is not to discourage job op-

portunities in direct legal services, but rather to be wary of being

“boxed” in positions that may affect legal experience, financial oppor-

tunities, and wellbeing.

Tutoring

In hopes that moving away from the doctrinal/Socratic method of

teaching will make “tutoring” obsolete, tutoring programs should play

an active role in the meantime. Inspired in part by Duncan Kennedy’s

dissent, teaching staff will be trained and required to assist students

who may face challenges with course material/practices.

Concerns that students known as “gunners” would take advan-

tage of such services by “hogging” resources could be prevented by

having tutoring counselors that tailor a remedial program based on

the student’s need. For example, a student may need 3 hours of tutor-

ing in writing during the lapse of 2 weeks, a student would be given

such attention with a specified professor. Students would be screened

based on need, as opposed to first-come first serve. The abolition of

curved grading should de-incentivize the “gunners” from seeking

tutoring they do not need.

Integrating Self-Care Practice and Concepts

Knowing the prevalence of depression and alcohol/drug abuse

among attorneys, self-care courses would be required by law school

students. These courses would address various aspects of attorney

pressure, such as dealing with abusive relationships in the office space,

the psychological impact of working in direct legal services, coping

with high-stress situations, etc. The aim would be to practice integrat-

ing concepts such as mindfulness into an attorney lifestyle.

Sketch No. 3

By anyone’s standards, I have excelled in law school; barring

some sort of catastrophe, I will graduate in the top of my class, and

the opportunities I will have after graduation would make most law

students salivate. But it’s no secret that I hate it. I tell everyone, and

those close to me hear little else come exam time. When asked why, I

talk about how much effort I put in and how very disjointed it all is—

how little the semester’s work has to do with the exams, and how little

any of it has to do with the practice of law.

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438 CLINICAL LAW REVIEW [Vol. 24:247

Anyone who knows me will tell you that I don’t mind hard work.

I throw myself into everything I do with a level of devotion that bor-

ders on obsession, and I’ve certainly done so in law school. The effort

I’ve expended has not been costless: I lost thirty pounds my first se-

mester, my second year came with my very first migraine, and every

single relationship I have has suffered. I’m usually willing to exert my-

self and pay the piper without complaint. But here, I mind, and I do

complain, because the amount of work I’ve put in far outpaces the

returns I’ve seen. Yes, my GPA is high. But why, when I prepare for

exams, do I feel like I’m starting from scratch? Why haven’t I learned

yet how to be a lawyer? And why the hell are my professors and my

school not working to prepare me for these challenges?

I began this last semester, the first of my third year, by obtaining

outlines for all of my doctrinal classes. As dutiful as I’ve been, it can’t

be said that I haven’t learned a thing or two about how to cut corners,

and I was so weary and fed up that I allowed myself this deviation

from lockstep with the Socratic case method (although I still read

every case I was assigned and briefed every case I read). Having those

outlines was an incredible experience: All of a sudden, I was psychic. I

finally knew what was going on—where we were headed, how it all fit

together. What’s more, I almost always knew exactly what the profes-

sor was going to say next. At one point, in response to a professor’s

question about a case, I gave an answer directly from my outline, and

immediately realized that this was the (relatively straightforward)

point to which she had planned to build over the course of the class

session. You should have seen her face—the picture of flustered, of

caught off-guard. After recovering herself, she proceeded to do just

what she’d planned—to spend the class session building to the point

I’d just made. It was astounding. As I sat through the next plodding

hour, I felt like I’d won the lottery and instantly lost it all. “Wait, we

still have to do this? Isn’t there something more?”

I shouldn’t have been surprised. With my outlines in hand, I saw

that all of my doctrinal classes were scripted, the professors using the

same phrases in the same order as they had in years past, pathologi-

cally unable or unwilling to deviate. I was irritated by my professors’

clear lack of effort, but I thought, “Well, I’ve been more prepared for

class than ever this semester, so at least I’ll be extra-prepared for ex-

ams.” I still couldn’t unlearn what I’d been told in conversations as

scripted as doctrinal classes: “The Socratic case method will teach you

the law, and deep engagement with Socratic case method will prepare

you for exams.”

Nonsense. I carried my bravado into my exam preparation, only

for my misplaced confidence to crumble. It was heartbreaking, to fi-

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Spring 2018] Transform Legal Education 439

nally see what I’d have realized much earlier had I not been so very

dutiful: The relationship between the work that’s required during the

semester and the performance that’s rewarded on exams is passing at

best.

I made up for lost time with a flurry of practice exams, and did

about as well as I always do, though my crisis of faith made the whole

experience even more miserable than usual. I’ve spent some time try-

ing to understand why I always do well, and though it may not be a

complete answer, I ascribe my success to the fact that I’m a hardwork-

ing good writer who knows how to figure out what people want and

give it to them. What I know for certain is that the quality of my per-

formances has next to nothing to do with the “preparation” I’ve re-

ceived in doctrinal classes. Similarly, my summer work experiences

were as successful as grit, intuition, and writing ability could make

them, but again I found myself substantively unprepared for the work

that was expected of me. As I asked for (and thankfully received) tu-

telage on the basics of the practice of law, I wondered, “Why is this all

utterly unfamiliar? What has all this schooling been for?”

I’d propose scrapping law school exams altogether in favor of a

wholly practical education, but bar exam essays share many or most

qualities with law school exams, so I don’t think the latter should be

done away with entirely. What I do think—what I know, and what I

assert with as much force as my fatigue with it all will allow me—is

that what we do in law school should directly and affirmatively pre-

pare us for the performances that will be expected of us: on law school

exams, on the bar exam, and in practice. We know so much more

about learning than we did in the 1800s, when the modern law school

was born, and yet legal education has stagnated, an antiquated ma-

chine grinding law students in its gears. In my darkest hours, I chalk

this up to professional hazing—the notion that we suffered, so the

newbies must too—and to the indolence of those who have the power

to make change and whose lives would be affected by it. At my most

optimistic, I think it’s just inertia mixed with ignorance, and I have

hope for change—that maybe someday, even someday soon, law

school will serve its ideal purpose.

My vision of a new law school curriculum centers around a basic

premise: Tell us what we need to know, and teach us how to do what

we need to know how to do. Put another way, every law student who

puts in the effort should graduate prepared to take the bar and pre-

pared to practice law.

Doctrinal classes should be interactive and writing-based. Ball-

hiding and the Socratic case method should be banned in favor of

practical, hands-on experience that leaves the student with a working

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440 CLINICAL LAW REVIEW [Vol. 24:247

understanding of the law as well as of legal research, the writing that is

required on bar exams, the various written products attorneys are re-

quired to produce, and the benefits of collaboration.

• Teach the law up front, explicitly, in the form of materials dis-

tributed prior to the first class. These could be video or audio

lectures, outlines, books, interactive technology-based materi-

als, or all of the above—anything to get the playbook of the

law in the hands and minds of the students so that they are, to

quote Professor L ´opez, “conversant” by the first day of class.

• Distribute a fact pattern to the class, an issue-spotter one might

find on a typical law school exam. Discuss the doctrinal impli-

cations, and, in the case of early 1L classes, lecture, take ques-

tions, and distribute materials on the structure of law school

exam answers.

• Assign each student to write an exam answer in response to the

fact pattern (relying on the distributed materials for doctrine),

then assign them, in pairs, to review one another’s answers and

provide comments.

• Select several pairs of students to present their work (both an-

swers and comments thereto) to the class, and engage the class

in guided discussion regarding what went well and what needs

improvement, both in the principal piece of writing and in the

commentary. (How well did the player play, and how well did

the coach coach?)

• Assign students to rewrite their exam answers based on what

they learned from their partners and from class discussion. The

rewritten answers should go through another round of peer

comments and should also be read and commented upon by

the professor.

• Once a baseline of student fluency with the distributed materi-

als is achieved through repetition of this process as necessary

with various fact patterns, distribute yet another fact pattern,

one with nuances that take the situation slightly beyond what

was covered in the distributed materials, and assign students to

conduct legal research on electronic databases to find respon-

sive case law. Some of this research should be conducted in

class so that the professor can assist the students in building

their research skills.

• Require students to bring the results of their research to class

and to discuss in small groups what cases they believe are most

responsive to the fact pattern.

• Assign students to write briefs, motions, complaints, client let-

ters, bench memos, drafts of judicial opinions—the products

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Spring 2018] Transform Legal Education 441

they will likely be required to produce as practicing attorneys.

Distribute materials on the structure of each of these written

products before they’re assigned and take questions in class.

• Again, students should work in pairs to review and critique

each other’s work, present their work to the class, and rewrite

their work based on what they have learned, with feedback

from professor and partner on the rewritten product. Again,

repeat as necessary, with each fact pattern going a bit further

than the last into the doctrinal arena at hand.

Broad reading should be required as a means of improving stu-

dents’ writing and making them more critical readers. This instruction

might take the form of a mandatory class in the first two semesters of

law school.

• Assign students to read (and write reflections in response to)

works that explore the effective use of language and rhetoric.

Some of these should focus on the legal realm, while others

should more broadly address the topic of effective writing and

interrogate the efficacy of various uses of language. Students

should read one another’s responses prior to class and come

prepared for robust discussion.

• Assign students to read fiction, non-fiction, poetry, and legal

writing displaying what various faculty members consider to be

excellent use of language, both traditionally and in a novel

sense. Students should write reflections that focus specifically

on the authors’ use of language—what the student finds com-

pelling, effective, or lacking about it, and why. Students should,

in all their reflections, try out the techniques they find in these

written works, and should be encouraged to do so in their doc-

trinal writings as well. Again, students ought to read one an-

other’s reflections, and class time should be devoted to

discussion.

Oral advocacy in its various forms should be taught to every stu-

dent through an experiential process. Students should be required to

engage in mock negotiations and moot court proceedings, with gui-

dance and critique from both peers and professors, to develop their

oral advocacy skills. In these settings, they should represent one an-

other’s interests, gaining practice and facility in the art of listening to

clients and advocating for them.

Professional options should be laid out in a course offered during

the first semester of the first year. Students should receive early in-

struction that will enable them to make informed, conscious choices

about their educational and career paths. Topics covered could in-

clude the nature of transactional work versus litigation, private prac-

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442 CLINICAL LAW REVIEW [Vol. 24:247

tice versus public interest, academia, clerkships and judgeships, life

and work in firms of various sizes, the demands of solo practice, a

brief introduction to the demands of various practice areas, and the

possibility of using a law degree outside the traditional practice of law.

Rather than having to gather this data on an ad-hoc, patchwork basis

over the course of their law school careers, students should have ac-

cess to information about the cornucopia of possibilities as early as

possible so that they may move through law school with greater inten-

tion and focus.

Explicit Bar preparation should be conducted during at least the

final two semesters of law school. This instruction should take as

prominent and as early a role as necessary to ensure that every stu-

dent who puts in the necessary effort graduates ready to take, and

able to pass, the bar exam.

• Using methods that mirror the first portion of the doctrinal

class framework laid out above—distribution of necessary doc-

trinal materials and fact patterns; take-home essays, followed

by peer critique—instruct students in every topic that appears

on the essay portion of the Bar exam.

• Similarly, instruct and drill students on the skills necessary to

succeed on the Performance Test portion and on the knowl-

edge necessary to succeed on the multiple choice Multistate

Bar Examination portion.

Summer work should be more heavily supervised to ensure that

students are receiving adequate instruction. To this end, schools

should screen summer opportunities and provide employer organiza-

tions and firms with a form of accreditation provided they meet stan-

dards regarding the level of instruction and education that will be

provided to the student over the course of the summer. Students could

receive school credit or a transcript annotation for summer work com-

pleted with an accredited organization or firm.

Grading/evaluation should be structured to reward hard work

and objective mastery and to incentivize rather than discourage stu-

dent collaboration. Professors should meet with each student at least

once over the course of the semester to provide a progress report and,

in lieu of assigning letter grades, should write an evaluation of every

student in their classes at the end of the semester. Included in each

evaluation should be an explicit discussion of how well the student

collaborates with others—how generous she is with her knowledge

and how open she is to learning what her peers have to teach her.

Mental health should be addressed from a place of realism. Law

schools’ current rhetoric around mental health issues seems to assume

that students enter law school in a pristine state, when in fact many

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Spring 2018] Transform Legal Education 443

have past or present experience with various sorts of mental disorders.

Rather than maintaining a singular focus on remaining healthy as a

law student, or simply farming out all work around mental health to

outside providers, law schools should devote some resources to help-

ing students function and succeed even as they live with ongoing

mental health problems.

* * *

I can’t decide whether my law school is commonsense or radical;

given how poorly the currently prevalent system works and how ar-

dently legal educators have clung to it, I think it might be a little of

both.

I will not graduate with a comprehensive, practical legal educa-

tion; I will struggle in my bar exam preparation, and in my first few

years of practice as I attempt to cobble together the knowledge and

skills I need to be a good attorney. Simply put, it’s too late for me. But

it’s not too late for future generations of law students. My alternative

vision is but one iteration of a legal education that would fulfill a

school’s compact with incoming students: to arm them with the skills

and knowledge they will need in order to meet successfully the chal-

lenges they will encounter outside the law school’s doors.

Sketch No. 4

Based on my own educational experiences—primarily benefiting

from the Lawyering for Social Change curriculum at Stanford Law

School in the early 90s; five years of teaching Legal Research and

Writing at George Washington Law School shortly after graduating

from law school; and nearly 20 years as a domestic violence trial law-

yer and attorney supervisor in Washington, D.C.—I am happy to

share my vision of a what an effective, challenging, and engaging law

school curriculum would look like to me. The first year would trans-

form the traditional black letter law classes so that students would

learn the material by doing some of the things that lawyers actually

do—taking facts and law and building cases. They would also have a

co-equal class offering the broad range of career options and skills

they can choose from to focus on for the remaining two years. During

second semester they would also start the process of learning about

the communities, challenges, and gifts of their future clients.

Second and third years would involve a single hub of intensive,

interrelated subject matter, skills, policy, and simulated or live prac-

tice experiences each year.

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444 CLINICAL LAW REVIEW [Vol. 24:247

My Educational Experiences

Growing up in a military family, we moved every few years, but

lived a fairly typical white, middle-class, suburban life. We moved to

Spokane, Washington, in 1979, the summer I turned 10 and was start-

ing 5th grade. As a late arrival, I got stuck in the new teacher’s class

because most of the other engaged parents had already ensured their

children a spot in the “good” teacher’s class. Mr. Frost, my teacher,

was a cruel, sadistic man who used my academic success to ridicule

other children. Thank goodness for Mr. Frost.

At the beginning of the year, some fifth graders—I don’t know

how many—were tested for Tessera, a gifted program that students

attended once a week at another school. I did not receive the top

score on the test, and so was not selected to attend until my mother

made clear to the administration that if I was going to be subjected to

Mr. Frost all year, I was going to be included in Tessera. Thank good-

ness for my mother.

Tessera was my lifeline. Every Wednesday for the year, my (who-

would-become-a-lifelong) friend John and I went to Longfellow Ele-

mentary, a multi-story, turn-of-the-century, brick school building with

high ceilings, hissing radiators, and Mr. Wescott. Thank goodness for

Mr. Wescott.

The 10-12 lucky students in that class received our first education

in problem-solving in myriad ways that resonated with each to differ-

ent degrees. We played games like Mastermind and Othello (John’s

favorite; I had no interest); solved wooden cube puzzles and Tangrams

(more to my liking); tackled Logic Problems (which became a lifelong

hobby of mine and directly contributed to my success on the LSAT);

and tried to successfully feed the people of ancient Sumeria in the

video game Hamurabi on one of the original IBM personal computers

with nothing more than a dark screen and illuminated green text

characters.

At some point each week, we would gather in a circle. Mr. Wes-

cott would present a fact pattern, a problem, the rules, a goal, and our

resources, and leave us to work together to solve it. We traveled to the

moon and uninhabited islands. We decided who would be saved in a

lifeboat and solved haunted mysteries with only yes or no questions.

By the end of the year, we were such a cohesive group we astounded

him with how quickly we could solve the puzzles he presented. He

treated us as adults, let us mostly direct our own learning, offered va-

rious activities that appealed to our various interests, and we thrived.

At the end of the year, the old brick building was torn down and I

imagine Mr. Wescott moved on to teach elsewhere, but I have never

forgotten the joy of learning that year.

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When it came time to choose a law school in 1991, I chose Stan-

ford over Harvard for three primary reasons: the opportunity to begin

working at the East Palo Alto Community Law Project

167

as a first

year; the diversity of graduate student housing options; and the public

interest scholarships the school offered at the time to 2Ls and 3Ls.

168

The first two worked out wonderfully for me and, although I did not

win one of the scholarships, the law school’s generous loan repayment

program ultimately served me just as well.

I was right that living outside the law school “bubble” proved

positive on a personal level. My randomly selected roommate for

graduate housing was a medical student with whom I got along so well

we continued to live together all three years and disproved the old

adage about lawyers and doctors disliking each other. From a distant

acquaintance, I befriended a group of AeroAstro

169

Ph.D students

who helped remind me there was a whole universe beyond the law

school. And, by a fortuitous set of circumstances, my friend John

(from 5th grade) was a constant companion during my first year while

he obtained his masters in Stanford’s STEP

170

program and remained

close during my second and third years while he taught at a local high

school.

I knew nothing about lawyering when I arrived at Stanford. I

came from parents who were a scientist and an engineer. From kinder-

garten through college graduation, though, I had loved school and

167

According to Stanford’s “Public Interest Law at Stanford Law School” brochure at

the time:

The Project, which first opened in March of 1984, serves the nearby community

of East Palo Alto. The Project was begun by students and community members

and has the dual purpose of providing legal services to an otherwise severely

underrepresented community and providing students with practical experience

working with residents of that community. A student steering committee

works with the staff to determine the policy direction of the Project. The Pro-

ject emphasizes projects that promote community development and individual

and community self-sufficiency. Under the supervision of attorneys, the stu-

dents may volunteer their time to assist in the domestic violence TRO Clinic,

the Small Claims Clinic or the Guardianship Clinic[. In] addition . . . students

can also fulfill clinical coursework obligations by working at the Project.

Id.

168

The same brochure included:

Public Service Fellowships. Recently established by the Law School, these pro-

vide full tuition for several second and third year Stanford law students plan-

ning careers as lawyers in government, public interest work, or public service

more generally. Fellowships are awarded on the basis of students’ demon-

strated commitment to public service, their intention to seek permanent em-

ployment in public service, and academic achievement in their first year of law

studies.

Id.

169

Department of Aeronautics and Astronautics.

170

Graduate School of Education, Stanford Teacher Education Program (STEP).

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446 CLINICAL LAW REVIEW [Vol. 24:247

dreamed of being a lawyer since second grade. I started keeping a

journal when I arrived at law school because I thought it would be

worthwhile to capture and reflect on the experience. Little did I know

I would be documenting abject misery throughout the entire first year

of traditional coursework: Torts, Contracts, Civil Procedure, Criminal

Law and (basically ignored) Legal Research and Writing first semes-

ter; and Constitutional Law, Property, Law and Sociology, Lawyering

Process for Social Change, and (basically ignored) Legal Research

and Writing second semester.

Representative of my first year experience, but only several

weeks into classes on September 24 I wrote:

The Law is quickly becoming almost a menacing thing to me. It is

emerging as an arbitrary set of rules that will determine who wins

with no regard for fairness or justice. The Law should not take on a

life of its own. We should control It. I fear an indoctrination process

which makes us slowly begin to see these procedures as perfectly ra-

tional and apply them w/o question. I hope to resist that force and

remember the issues that really matter. . . . These are things I will

constantly have to remind myself of. I value clarity & keeping in

mind that

are people, not just symbols.

Only two academic experiences that year received positive reflec-

tions in my journal: (1) training for and working in the student run

Domestic Violence Clinic at the then East Palo Alto Community Law

Project and (2) beginning the Lawyering for Social Change (LSC)

Curriculum

171

second semester with the Lawyering Process for Social

Change class.

172

After first year, I only took two other traditional law school clas-

ses: Criminal Procedure and Evidence. Otherwise, I took only “skills”

classes (Negotiation; Trial Advocacy; Advocacy Skills Workshop;

What Lawyers Should Know About Business and its accounting sub-

171

There are a number of descriptions of the curriculum, but I will start with the one

from the front page of the same brochure cited above, supra note 167:

This coordinated [Lawyering for Social Change] curriculum draws on interdis-

ciplinary ideas and every day experience to prepare lawyers to work with sub-

ordinated or disadvantaged populations. Students choosing this sequence

enroll in courses which, among other things emphasize the relationships be-

tween doctrine, strategy, ethics, skills and the social context of lawyering. The

sequence is designed to provide students with specialized training, while pro-

viding a broad understanding of the social and psychological dynamics of pov-

erty and the needs of underrepresented groups.

Id.

172

“This section introduces students to what it is like to work with subordinated people,

what it is like to work with allies, and what it is like to work with in a particular neighbor-

hood (East Palo Alto), designing and executing strategies aimed specifically at solving par-

ticular problems and more generally at fighting social and political subordination.”

Stanford University Bulletin, School of Law 1990-92, p. 22.

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Spring 2018] Transform Legal Education 447

section; and an undergraduate Advanced Spanish Conversation class),

in-depth seminars (Gender Law and Public Policy; Domestic Vio-

lence: Social and Legal Analysis of Woman Battering / Models of At-

torney Intervention) and most of the courses offered in the LSC

curriculum (Subordination: Traditions of Thought and Experience;

Community Law Practice; Advanced Issues in Criminal Defense and

Prosecution; and Teaching Self-Help and Lay Lawyering). Many of

these classes had limited enrollments and were very hard to get, en-

suring I had an experience substantially different than most of my

classmates.

173

As expected, the East Palo Alto Community Law Project was as

central to my education as my courses. In addition to serving as the

clinical placement for my LSC courses both semesters third year, the

Law Project housed the student-run Domestic Violence Clinic where I

worked as a volunteer my first year and student co-coordinator my

second two years. I also received course credit for a directed research

project there my second year working on housing matters.

As a result, my third year journal entries are radically different

from my first. There are three main takeaways. (1) I worked extraor-

dinarily hard. I came home many days at 11:30 p.m. and occasionally

called my roommate just to say hello because we never saw one an-

other. (2) I was blessed with a phenomenal community of peers and

mentors that supported and challenged me. (3) I had rediscovered the

joy of learning.

As early as September 11 of my third year, recognizing how

unique my third-year learning opportunity was compared to most of

my classmates. I wrote in my journal:

I also must say that the amazing experience I am going to have this

year is not the typical 3d year or law school experience (lucky me). I

have chosen to stay far away from Secured Transactions, Capital

Markets, and Trusts and Estates which are the basic courses of most

of my classmates. I think I am very fortunate to get to do all that I am

doing and feel sorry for all of the students trapped by traditional no-

tions of what they should be doing. I plan to stay very humble, very

attuned, and learn my tail off this year.

And it did not fade. On November 8, I wrote:

For the millionth time I’ll reiterate how much I love this year – it puts

the other two to shame. Every day I am concerned about real people

with real problems and working hard to do what I can to address

173

I was the only second year in my trial advocacy class taught by a federal judge in San

Francisco because even though I was on the wait list, I attended the class from the first day

and the judge let me enroll. Needless to say that did not make me popular with my third

year classmates whose friends had not been able to enroll in the class.

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448 CLINICAL LAW REVIEW [Vol. 24:247

them.

Sadly, most of the amazing educational experience I had in my final

two years at Stanford got axed by the new administration after my

graduation.

After graduation I spent four years as an assistant general coun-

sel for the Department of the Army at the Pentagon. For five years

between 1995 and 2001, I taught Legal Research and Writing to first

years at George Washington University Law School in a program far

more robust than what I had first year at Stanford. I learned a lot I

wished I had learned then. Since 1998, I have been a domestic vio-

lence trial attorney practicing a unique hybrid of family and criminal

law in Washington, D.C. As a practitioner, I can see the training defi-

cits in the students coming out of school—legal writing, trial skills,

and understanding of the broad human dimensions in all of our work.

The first two at least have created a strong market for continuing edu-

cation programs that focus on those skills.

Though I often work with my colleagues who teach at the many

law school domestic violence clinics in Washington, D.C., I have not

stayed abreast of or attuned to developments in law school curricula

in many years. For the most part, the approach seems to be a “one and

done” philosophy, with students typically getting one semester of a

clinical experience that focuses on the nuts and bolts of the practice

but not the extended opportunity to evaluate lawyers and their roles

in the particular community and practice they are supposed to be

serving.

As a result, I offer the following sketch outline of a law school

curriculum based on what worked and what did not work for me and

on what I see in recent law graduates.

First Year / First Semester

Students would take three “black letter law” classes representing

bar topics—Contracts and Torts (to teach common law concepts), and

Criminal Law (to teach statutory law concepts)—and one lawyering

class. Legal research and writing and civil procedure would be inte-

grated into the three black letter law classes.

Contracts and Torts. Drawing on the highest quality outlines,

hornbooks, and computer-based learning, videos and other train-

ing materials, students would spend the first seven weeks learning

the black letter law

For the second seven weeks, students would do what many law-

yers actually do—take a fact pattern and draft a variety of legal

documents. Writing assignments would be created through civil

procedure lenses so that in completing each assignment the stu-

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Spring 2018] Transform Legal Education 449

dents would also be learning civil procedure as applied to real

life. Each course would focus its assignments on different aspects

of civil procedure. In creating the fact patterns, professors would

seek out current real world, cutting-edge problems and give stu-

dents a choice from two or three problems. Fact patterns would

require students to learn who the involved parties are, what

brought them to this place, and what the legal system can and

can’t do to address their problem. During class time, professors

would work as coaches for the students, breaking down the

problems into manageable pieces, teaching students the requisite

parts of each document and guiding them through conducting the

research needed to address each issue.

Grading: Students would test their mastery of the material

through on-line, multiple-choice tests modeled on the bar exam.

They could re-take tests on any section of material as many times

as they need to to reach the level of mastery (and grade) they

want.

During the second seven weeks, teachers will assign letter or

number grades to writing assignments simply as a way to help

students gauge their mastery. Using feedback from coaching, stu-

dents may rewrite a document as many times as they want to im-

prove their mastery and their grade.

There will be no mean. It will be entirely up to the students how

much effort they want to expend to improve their work.

Criminal Law. Criminal Law follows the same format and grad-

ing policy as Contracts and Torts, but instead of writing projects

centered on civil procedure tasks, the writing problems focus on

statutory interpretation and persuasive writing skills either to a

trial or appellate court.

Mosaic. A full year class exposing students to the skills needed

for myriad career paths. First seven weeks: creative problem-solv-

ing, brain exercises, logic and reasoning ( `a la Mr. Wescott—our

1Ls need some joy of learning!), plus basic legal research to un-

derstand how to find and cite cases, how to determine if they are

still good law, and how to find policy research. Second seven

weeks: The world of lawyers, including the history of the profes-

sion and legal education. Readings, videos, panels, etc., to expose

students to the wide range of career paths available with an em-

phasis on the specific training and skills students should acquire

for each path:

• General counsels for both government and private

business

• Trial lawyers (those people who are actually in court most

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450 CLINICAL LAW REVIEW [Vol. 24:247

days)

• Impact litigators who take on large impact or class action

cases

• Rebellious lawyers

• Appellate lawyers

• Judicial officers—from administrative law judges to appel-

late judges

• Academics

• Policy advisors, think tank workers, community organizers

• Law firms in all their permutations from solo practitioners,

to “boutique” small firms with specialized practices, to

massive corporate law firms, with special attention to the

many emerging alternatives to the traditional law firm and

billing models including “low bono” models.

Grading: show up and participate = pass; don’t show up or don’t

participate = don’t pass. Same number of credits as the other

three classes.

First Year / Second Semester

Students choose two courses from Constitutional Law, Property,

Business Associations, and Evidence. The first three would be taught

in the same format as Torts, Contracts, and Criminal Law, though the

writing assignments would not be limited to civil procedure. For the

second half, instead of writing assignments, Evidence students would

have simulated exercises to practice evidentiary concepts. Like Civil

Procedure, Professional Responsibility would be incorporated into the

fact patterns and simulations the students face, especially in Evidence.

For their third class, students would have the option to take any

upper-level course offered by the wider university or to take a law

school course. Either choice should be specifically designed to help

them understand the clients they will ultimately be serving and can

serve as a pre-requisite to an upper level “hub.” The courses would be

a deep and wide reading theory class drawing on multiple disciplines

and sources of understanding.

Some examples of college courses that would meet this require-

ment (from the Cornell University course catalog):

• America, Business and International Political Economy

• American Conservative Thought

• Economics and Environmental Policy

• History of Consumption: From Wedgwood to Wal-Mart

• Information, Technology, and Society

• Immigrant America: Race and Citizenship in Modern Work-

ing-Class History

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Spring 2018] Transform Legal Education 451

• Representing Racial Encounters/Encountering Racial

Representations

• Social Studies of Space, Technologies and Borders

• Theories of Industrial Relations Systems

Courses at the law school could include:

• Subordination: Traditions of Thought and Experience

174

• The Architects of Silicon Valley

175

• CEOs from Robber Barons to Philanthropists

• Celebrity Agents Then and Now

• Asian Culture and Traditions

Mosaic: An Exploration of Advocacy. Through readings and sim-

ulated practice this class will introduce students to the wide range

of advocacy skills that attorneys employ. Drawing on the lessons

of first semester, the course will explore the theory and practice

of how lawyers in each of those practice areas influence others:

organizing, lobbying, legislative advocacy, appellate legal argu-

ments, media campaigns. Based on their interests, students would

be able to choose from two or three fact patterns that would

serve as the basis for all of these exercises. Again, it would be a

co-equal class for credits with the other classes this semester.

Recognizing that all forms of influence may be too much to cover

in one semester, a school could break them down into two or

three smaller groups giving students a choice in registration, but

each course must still at least contain at least three different

forms of influence.

Second and Third Year

Second and third year students must be able to take classes that

interact, build upon each other, and offer ample simulated and live

practice. I imagine a hub and spoke model, where schools create a hub

of related courses in a field which all of the students in that hub take

and from which students choose one of a number of specialized

spokes to offer them more opportunity for specialized training and

practice.

In their work in the spokes, besides learning an area of law more

in depth, students would also be trained and expected to come to

know the lives and experiences of the individual or community they

are serving and evaluate the positive and negative effects of an attor-

ney’s role in their situations.

Through their course materials, assignments, and placements,

174

See description above.

175

The rest of these are all from my imagination.

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452 CLINICAL LAW REVIEW [Vol. 24:247

each hub with all of its spokes would be designed to accomplish six

goals:

176

• Teach students to be creative problem solvers.

• Expose students to interdisciplinary literature relevant to the

area of law.

• Train students in the skills relevant to the type of lawyering.

• Equip students to understand and participate effectively in pol-

icy debates relevant to the area of law.

• Create a literature analyzing the nuts and bolts of effective

practice in the area.

• Analyze past reform efforts and encourage students to develop

tools to evaluate the impact of their own work.

Hubs could form around subject matter areas, practice types, or

both in a given school. Schools could also become known for their

particular programs so not every school would have to be everything

to every student.

Live practice opportunities could range from live client law

school clinics, to moot court or actual appellate practice opportunities,

to legislative drafting, to business negotiations, to a media campaign.

Students would be able to do a different hub each year.

Some hub and spoke examples drawing from my own experience:

• A Community Law Practice hub. In course formats designed

to meet the six goals above, students would all take a course or

courses that included trial advocacy, non-profit business man-

agement and fund-raising, an overview of the types of law in-

cluded in all of the spokes, and the political and economic

forces underlying poverty. The spokes could include specialized

coursework and live practice opportunities in housing, eco-

nomic development, public benefits, family law, or

immigration.

• A Criminal Justice hub. In course formats designed to meet

the six goals above, students would all take a course or courses

that included trial advocacy, criminal procedure, the legislative

process, the role of each of the spokes in the system, and bias in

the system. The spokes could include specialized coursework

and live practice opportunities in criminal defense, prosecution,

habeas corpus work, re-entry programs, death penalty appeals,

or victims’ rights work.

• A Civil Rights hub. In course formats designed to meet the six

goals above, students would all take a course or courses that

included Constitutional Law, federal civil rights legislation, fed-

176

Adapted from Lawyering for Social Change Program.

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Spring 2018] Transform Legal Education 453

eral procedure and practice, and a study of successful move-

ment organizing and peaceful protest. The spokes could

include specialized coursework and live practice opportunities

in police abuse cases, Title IX enforcement, disability access, or

transgender issues.

Some other examples outside of my experience but that I could

imagine:

• A Corporate Clients hub. In course formats designed to meet

the six goals above, students would all take a course or courses

that included corporations, taxation, negotiation, and business

development—how to attract and retain clients. The spokes

could include specialized coursework and live practice opportu-

nities in a transactional law clinic, securities regulation, corpo-

rate tax policy, or setting up an initial public offering.

• A Science and Technology hub. In course formats designed to

meet the six goals above, students would all take a course or

courses that included administrative and regulatory law, an

overview of all the types of law included in the spokes, a semi-

nar on influencing policy makers, and how to translate scien-

tific data into law. The spokes could include specialized

coursework and live practice opportunities in cyberlaw, patent

law, environmental law, or health care law.

• A Solo Practitioner Hub (to give a practice type rather than a

subject matter example). In course formats designed to meet

the six goals above, students would all take a course or courses

that included trial advocacy, small business management and

accounting, initiating and defending lawsuits, and an overview

of areas of practice including wills, family law, and criminal de-

fense. The spokes could include specialized coursework and

live practice opportunities in a small general practice.

* * *

I am certain that experts in these and other fields could come up

with cohesive programs that would make law school meaningful and

productive for students pursuing all areas of the law and offer them

the joy of learning and passion I found in the Lawyering for Social

Change curriculum.

As my favorite, fictional, accidental rebellious law student Elle

Woods said in Legally Blonde:

177

“I have come to find that passion is a

177

In this farcical fish-out-of-water story, bubbly, rich, sorority girl Elle Woods reveals

herself to be a natural, if accidental, rebellious lawyer. Elle first demonstrates a natural

instinct for lay lawyering through her friendship and advocacy with a local hairdresser. She

later breaks out of the grinding format of Harvard’s first year law curriculum by landing a

prestigious internship defending a woman accused of murder. As the only member of the

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454 CLINICAL LAW REVIEW [Vol. 24:247

key ingredient to the study and practice of law and life.”

Sketch No. 5

A J.D. is a fetish. It is a credential in a society that relies on

credentialing to determine access to high-status occupations—and to

ensure that those occupations will not decline in status.

178

Compo-

nents of the J.D.—law school ranking, 1L grades, law review—act as

“signals” of student quality to employers, enabling access to valued

rewards within the high-status occupation in the form of high-paying

or well-regarded positions.

179

But what qualities do these components

actually signify? And what occupational expertise does the credential

certify? Under the current law school system, it is not the content of

the J.D. that matters but the symbol itself.

The vision of lawyering and of legal education outlined in Profes-

sor L ´opez’s article would give content to the symbol. This vision de-

mands that law schools develop students’ knowledge, skills, and

capacities as problem-solvers. Most contemporary law schools fail to

achieve this development not because they are deeply committed to a

regnant view of lawyering; rather, they lack any sort of vision at all.

Contemporary law schools replicate the regnant model simply by fall-

ing in line with institutional pressure toward correspondence. To

maintain external legitimacy, law schools mirror the practices of other

law schools and conform to the mandates of outside organizations—

not just the American Bar Association but also U.S. News & World

Report and large law firms that want easy heuristics to use in hiring

decisions.

180

Law schools can only resist the pressure toward conformity by

articulating a clear mission. When the purpose of an organization is

simply to go on existing, it is beholden to its patrons. Its only source of

legitimacy is external. But an organization that articulates a mission

has an internal mechanism for legitimacy. An organization with a mis-

sion can continually ask whether its activities promote or harm its cen-

tral purpose.

defense team that bothers to truly hear and protect the client’s story, and through the

dumb luck of her familiarity with the culture and practices of all the various witnesses, Elle

is singularly able to get her client acquitted while preserving the client’s right to her own

story.

178

See R

ANDALL

OLLINS

, T

REDENTIAL

OCIETY

: A H

ISTORICAL

OCIOLOGY OF

DUCATION AND

TRATIFICATION

(1979).

179

See Russell Korobkin, In Praise of Law School Rankings: Solutions to Coordination

and Collective Action Problems, 77 T

. L. R

. 403 (1998). Professor Korobkin sees sort-

ing itself as economically positive, whereas I view arbitrary sorting as socially problematic.

180

See Michael Sauder & Wendy Nelson Espeland, The Discipline of Rankings: Tight

Coupling and Organizational Change, 74 A

. S

. R

. 63 (2009).

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Spring 2018] Transform Legal Education 455

A mission statement in itself does not guarantee progress toward

an alternative vision for legal education. A mission statement can be

regnant or rebellious. A mission statement may require conformity

with existing institutions or may demand institutional change. Mission

statements can be written in vague terms or using empty platitudes,

providing little substance for accountability. And mission statements

can simply be ignored, as organizations say one thing and do another.

Yet despite all these pitfalls and workarounds, a mission remains im-

portant to any organization that is truly committed to intentional deci-

sion-making over reflexive reliance on tradition.

For my sketch, I decided to imagine a law school with a mission.

This is not my dream law school—my dream law school would have a

radically leftist orientation toward social and economic justice. This

law school is more conventional in its approach—it intends to prepare

students for the full range of existing legal careers, for-profit and pub-

lic interest, and to enable them to choose a career they consider a

good personal fit. My dream law school would also be radically egali-

tarian. This law school retains a strong meritocratic orientation, even

as it shifts away from arbitrary ranking and toward genuine education

and evaluation. This school is also not fully rebellious—it privileges

legal expertise over other ways of knowing and approaching solutions.

Still, I like this law school—it captures many of the principles de-

scribed above by treating problem-solving as a community activity and

preparing students to work on real-world problems. By tying its activi-

ties to its mission, this school establishes a mechanism for accountabil-

ity, giving students the potential to strengthen or change the school

with their feedback.

* * *

Gemein Law School—Student Handbook Excerpts

Mission

Gemein Law School trains students to work productively with

others to solve practical problems by drawing from a strong set of

competencies in the law. Gemein Law School approaches the law as

both a set of existing rules and systems to be apprehended and a living

institution to be shaped and transformed through practice. The Ge-

mein Law curriculum is designed to train law students first as general-

ists, establishing the broad base of knowledge needed for bar passage

and practice as well as legal careers. After establishing their compe-

tency in the law, students at Gemein Law receive specialized training

in specific areas of the law that speak to their personal interests and

career goals. Gemein Law graduates are prepared for a wide range of

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456 CLINICAL LAW REVIEW [Vol. 24:247

21st-Century careers as highly collaborative, creative thinkers who are

strengthened —not limited—by their expertise.

[. . .]

Student Supports

Faculty Advisors. Each student is assigned a faculty advisor. The

faculty advisor provides the student with support in considering ca-

reers in various areas of the law, reaching out to potential mentors

and collaborators in the field, and gauging the student’s development

in the program. Advisors and students meet during orientation and at

least once per term. At Gemein Law, advisors consider students as

future colleagues in the law and seek to treat students with respect

while also offering guidance.

Advising Groups. Each advisor is matched with more than one

student in a cohort, as well as across cohorts. Together, the students

matched with a faculty advisor form an “advising group.” Advising

groups meet together with their advisor for a meal or off-campus ac-

tivity at least once every fall and every spring. Advising group mem-

bers are encouraged to check in with one another at other times as

well, to reflect on their own progress and on their satisfaction with

Gemein Law. Advising groups are also asked to collaborate on a re-

sponse to an annual evaluation from the Dean of Students. The an-

nual evaluation asks students to rank the school’s performance on a

number of items related to the school mission and to provide con-

structive suggestions for improvement.

Orientation. The 1L year begins in early September, with one

week of orientation before classes start. Orientation week is designed

to introduce students to peers and faculty and to acclimate students to

the collaborative environment of Gemein Law. Orientation week in-

cludes a ropes course with advising groups, community volunteering

activities, an interactive workshop on confronting discrimination in

the law school setting, and a barbecue with games. Orientation week

concludes with convocation and a reception.

[. . .]

1L & 2L Curriculum and Evaluation

Overview. The first two years at Gemein Law are designed to

develop students’ general knowledge of the law. These years will pre-

pare students to pass the state bar exam and will establish a toolkit of

practical competencies. The 1L and 2L years involve ten six-week

terms. Each term is structured around two paired courses—one cover-

ing legal doctrine and the other covering legal skills. Each of the

paired courses meets daily for two hours per day, four days a week. In

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Spring 2018] Transform Legal Education 457

addition to these courses, students meet weekly with an instructor for

a critical thinking seminar. The seminar provides critical legal analysis

of the doctrine covered during the term and introduces materials cov-

ering related social problems. The 2L year concludes in Comprehen-

sive Exams. Passage of all Comprehensive Exam components is

required for students to advance to their 3L Practicums.

First Term. The first of the six-week terms is structured somewhat

differently from the remaining terms. Term 1 is designed to orient stu-

dents toward law school and to prepare students for subsequent cour-

sework with a shared knowledge base. The two courses in Term 1 are

Introduction to U.S. Legal Systems and Lawyering as Problem-

Solving.

Introduction to U.S. Legal Systems provides a historical and soci-

ological understanding of the interlocking systems that comprise the

legal institution. The course also provides a basis of legal terminology

for students to use during their law school career. To take advantage

of our faculty expertise and to orient students toward the range of

possible careers available to students who earn a J.D. from Gemein

Law, the course is led by an instructor of record but involves guest

lectures on different topics from various faculty and practitioners.

Topics covered include:

• Court systems: Federal and state, civil and criminal.

• Carceral systems: Policing; jails, prisons, and detention centers;

bail and pre-trial monitoring; post-incarceration monitoring;

collateral consequences of incarceration.

• Legislative systems: State and federal legislative processes.

• Administrative law and regulatory systems.

• Common law systems: Origin of U.S. common law in British

history, modern permutations.

• Constitutional systems: Overview of U.S. Constitution; com-

parison to other constitutional democracies.

• 21st century, global systems: International law and regulations,

global economics, contemporary immigration regimes, human

rights.

Lawyering as Problem-Solving introduces students to the work of

the law. The course begins with a theoretical orientation toward law-

yering as a stylized variation of human problem solving. This section

of the course utilizes writings on problem-solving in the rebellious

lawyering tradition alongside writings on problem-solving from vari-

ous professionals, activists, academics, and creative writers. After con-

sidering the place of lawyering among varied forms of problem

solving, the course provides strategies and skills to approach the prac-

tical problems that will appear as part of the regular coursework in the

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458 CLINICAL LAW REVIEW [Vol. 24:247

remaining 1L and 2L terms. These strategies include brainstorming

options, community-based research, legal research, and legal writing.

Practitioners such as community organizers, law librarians, and law-

yers visit the course to provide guest lectures related to these topics.

Coordinated Coursework in 1L & 2L. Each of the subsequent

terms of the 1L and 2L years covers one of the doctrinal areas tested

by the California Bar Exam. Each term also covers an area of practi-

cal knowledge and skill needed for law practice. Courses are always

paired as follows, though the order of paired courses by term will de-

pend on each students’ section in the class.

1L Courses:

• Torts & Civil Procedure

• Criminal Law & Criminal Procedure

• Contracts & Evidence

• Property I (Real Property, Community Property) & Remedies

2L Courses:

• Constitutional Law & Legal Analysis

• First Amendment & Trial Advocacy

• Business Associations & Negotiation

• Property II (Trusts, Wills & Succession) & Professional

Responsibility

In the 1L year, all courses are structured in the same manner. The

first three weeks of each term cover black-letter law as preparation for

the Bar Exam and to provide a knowledge base for practice. No

casebooks are used. Instead, professors provide students with a set of

outlines and case law summaries at the beginning of each term. Stu-

dents immediately set to work applying these outlines and summaries

to hypothetical issue spotters and to explain or question court deci-

sions. Students work together in small teams on these issue spotters

and court decisions, but they are encouraged to ask questions of any-

one in the class. The professor provides coaching and clarification as

they work. At the end of the third week, students complete an individ-

ual issue-spotter assignment designed to evaluate their knowledge.

The third-week assignment is performed individually outside of class

and returned to the professor at the beginning of Week 4.

In the second three weeks of each term, students tackle real

problems. Each session begins with a problem drawn from practice—

not a hypothetical situation concocted to fit the rules or to diverge

slightly from previous cases, but a real client problem drawn from a

practitioners’ experience. Students are provided all materials needed

to develop the factual basis for their problem-solving. In some cases,

this means that actors attend class to play clients or witnesses. Stu-

dents address the problems by brainstorming holistic options for the

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Spring 2018] Transform Legal Education 459

client, including legal options. In developing their approach to the

problem, students may be required to engage in additional research

on resources local to the client or on cases or legislation. Most

problems also result in written work product, usually in the form of a

legal document such as a motion or a contract rather than the stan-

dard law school memorandum. Students are to utilize the bank of

model legal documents in Gemein Law library as a key resource to

write their assignments. Problems typically bridge multiple class days.

A single final problem is given for each term. The professors for

both courses in a term work together to design the final problem,

drawing from real practitioner experience. The problem bridges both

course areas. For example, the final problem for the term covering

torts and civil procedure might require students to advise a client of

her options after experiencing harm from a consumer product she

purchased in a local store and to draft a complaint. Students work in

small teams on the final problem during the last week of the term.

In the 2L year, most courses (First Amendment, Business As-

sociations, Property II, and Professional Responsibility) are structured

similar to 1L courses, with three weeks spent on issue spotters and

cases designed to develop facility with the black letter law and three

weeks spent on problem-solving modeled after real legal practice.

Trial Advocacy and Negotiation are structured to allow for the inte-

gration of principles and practice throughout the term. As in the 1L

year, the Week 6 problem is coordinated across both courses in each

term. In addition, in the term covering Constitutional Law and Legal

Analysis, students read full Supreme Court cases in addition to out-

lines of major Supreme Court doctrine. These cases are analyzed as

part of the Legal Analysis course; the final project for that term re-

quires students to write a Supreme Court decision from the perspec-

tive of a sitting justice.

CLS/Social Problems. Each term, students enroll in a seminar

designed to critically analyze the development of the black letter law,

to investigate social problems, and to reflect on practice issues related

to the term’s two doctrinal and practical courses. The same instructor

runs the seminar for the same set of students over the course of an

entire school year. This enables instructors to introduce and build

tools of analysis, investigation, and reflection over the course of the

year. Instructors coordinate their curriculum with the other two in-

structors for each term so that discussions are immediately relevant.

Seminars are capped at 20 students to allow for productive discussion.

Schedule & Credit Hours. The school calendar is designed such

that students undertake 12 weeks (two terms) of classes before the

winter break and 18 weeks of classes before the summer break. Stu-

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dents earn 3 credit hours for each doctrinal course and for each practi-

cal course, as well as for each of the two 1L Term 1 courses. Students

earn an additional 0.5 credit hours for each CLS/Social Problems

course. Students therefore earn a total of 32 credit hours in the 1L

year and 26 credit hours in the 2L year. Three-credit-hour courses

meet four times a week, an hour and fifty minutes per meeting. CLS/

Social Problems courses meet once a week, an hour and a half per

meeting. Students are expected to spend an equivalent amount of time

in out-of-class preparation for each course.

Sample Student Schedule

1L 2L

September Orientation N/A

(1 week)

Term 1: US Legal Constitutional Law

Sept. - Oct. (6 weeks) Systems Legal Analysis

Problem-Solving* CLS/Social Problems

Term 2: Torts First Amendment

Oct. - Dec. Civil Procedure Trial Advocacy

(6 weeks) CLS/Social CLS/Social Problems

Problems

December Winter Break Winter Break

(3 weeks)

Term 3: Jan. - Feb. (6 Criminal Law Business Associations

weeks) Criminal Procedure Negotiation

CLS/Social CLS/Social Problems

Problems

Term 4: Contracts Property II

Feb. - Apr. Evidence Professional

(6 weeks) CLS/Social Responsibility

Problems CLS/Social Problems

April Spring Break Spring Break

(1 week)

Term 5: Property I Exam Study Period

Apr. – May Remedies & Comprehensive

(6 weeks) CLS/Social Exams*

Problems

* All students have the same coursework/activities during this term

Grades & Evaluations. 1L and 2L courses are ungraded. Stu-

dents are graded only on their Comprehensive Examinations, which

are administered at the end of the second year of study (see below).

Students receive feedback on the week three assignments and

problems given throughout each term in the form of rubrics rating

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students as Rudimentary Learner (RL), Needs Improvement (NI),

Meets Expectations (ME), or Exceeds Expectations (EE) on specified

competencies. Students also receive written feedback on their overall

performance—as a classmate and colleague, as well as on their work

product—at the end of the term. This feedback is delivered privately,

through the Gemein Law internal online system. Term feedback does

not post to transcripts and is not shared with potential employers or

others.

To comply with ABA guidelines regarding credit hours, tran-

scripts note a grade of P for students who attended class and turned in

all assignments and a U for students who did not satisfy the course

requirements.

Students should expect to receive RL or NI on most competen-

cies at the beginning of each term and to work toward achieving ME

by the end of the term; EE is given only in rare exceptional cases.

Ratings of RL or NI are often initially uncomfortable for students

who earned primarily A’s and B’s in their previous education; how-

ever, at Gemein Law, we believe that it is important for students to

learn to recognize areas of their own nescience as part of their ap-

proach to problem-solving.

Peer Support. Students are expected to work collaboratively with

their classmates throughout each term. Students are encouraged to

work together on problems and to peer-edit written work product, ex-

cept on assignments specifically designated as individual assignments.

Students are also encouraged to share materials and form study

groups outside of class time to work together toward the goal of

achieving a full pass rate on Comprehensive Exams. Students are ad-

vised to carefully consider their own learning process as they work

with others and to consult with their advisor when they feel that they

are struggling.

Honor System. Though many assignments involve collaborative

work, some assignments—including the Week 3 assignments—are

performed on an individual basis. Professors do not monitor students

as they work on these assignments; rather, students follow the honor

system in attesting that their work is their own. Students who work

with others on these assignments miss a critical opportunity to receive

feedback on their competency development as part of their prepara-

tion for the Comprehensive Exams.

Students are asked not to share work from previously taken

courses across sections or years. By denying others the opportunity to

approach problems with fresh eyes, sharing harms other students’ de-

velopment as well as their chances of passing the Comprehensive

Exams.

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Comprehensive Exams. Comprehensive Exams are administered

in the last four days of the final term of the 2L year, after a five-week

study period. Comprehensive Exams cover all of the course topics

previously studied.

Comprehensive Exams involve three components:

1. Bar essays and multiple choice (Day 1 & 2, 12 hours): Similar

in design, format, and difficulty to the state bar exam.

2. Written work product (Day 3, 8 hours): In response to a prob-

lem, students are asked to produce a holistic plan to assist the

client and a written legal document.

3. Oral argument (Day 4, 15 minutes): Students are given a

prompt at the beginning of the study period and must deliver a

15-minute oral argument in response on the final exam day.

Comprehensive Exams are graded as Fail/Pass/Pass with Distinc-

tion. Students must receive a score of Pass or Pass with Distinction on

all components of the Comprehensive Exams to move on to the 3L

Practicums. Students who do not pass their first Comprehensive Ex-

ams enroll in a study seminar and are able to retake the exam. Stu-

dents can earn 5 credit hours for a summer study seminar and 10

credit hours for a fall study seminar. Students can re-take the exam on

two additional administrations. Students only need to re-take the

component that they failed on previous administrations. Additional

administrations occur at the end of summer, before Winter Break, and

before Summer Break the following year.

3L Curriculum and Evaluation

The 3L year at Gemein Law consists of Practicums paired with

Training Courses. The purpose of the Practicums and Training

Courses is to allow students to specialize in two areas of law before

finishing law school. Students are to enroll in two fourteen-week Prac-

ticums—one in the Fall and one in the Spring. Practicums involve a

placement within a legal organization under the supervision of a prac-

ticing attorney. Students must enroll in a different Practicum in each

of the two terms.

During each Practicum, students also enroll in a Training Course

covering the area of law they are working in—for example, Immigra-

tion Law Training, Criminal Defense Training, or Entertainment Law

Training. Training Courses cover both black letter law and additional

skills students may need. Training Courses also provide structured op-

portunities for reflection, goal-setting, and ethics-in-practice. Students

earn 10 credit hours for each Practicum and 5 credit hours for each

Training Course. Practicums are conducted on-site at each legal or-

ganization during the day; Training Courses are conducted in the eve-

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Spring 2018] Transform Legal Education 463

nings at Gemein Law and online. Students should expect to see

practicing attorneys enrolled in their Training Courses as well because

all Training Courses at Gemein Law satisfy continuing education

requirements.

Students who enroll in a Study Seminar in Fall of their 3L year

may not enroll in a Practicum but may enroll in a Training Course.

Students will be compensated for their participation in Prac-

ticums at a rate above local minimum wage. Students will all receive

the same wage for their work, regardless of type of legal organization.

All compensation for student work in Practicums at private firms is

paid directly to the law school and redistributed to help subsidize pub-

lic interest work and judicial clerkships. This pay structure enables

students to pursue their interests through work in various types of

organizations.

Students are to receive written evaluations from both their Practi-

cum supervisors and their Training Course professors. Written evalua-

tions are intended to be comprehensive and to assess areas of

proficiency and areas of nescience for all students. Written evaluations

will not rank students. Written evaluations form a part of each stu-

dent’s hiring portfolio.

[. . .]

Career Services

Hiring. On-campus interviews for both private firms and public

interest organizations occur at the end of the 3L year. At this time,

organizations are assured of hiring attorneys with proven competen-

cies and the ability to pass the bar exam. Some organizations may

choose to hire students they previously supervised for Practicums.

Students utilize hiring portfolios during on-campus interviews, which

include samples of written work product, Comprehensive Exam re-

sults, and 3L evaluations. Traditional “letters of recommendation” or

class rankings are not allowed as part of the hiring portfolio, which is

intended to stimulate fruitful conversation about the students’ inter-

ests, abilities, and experiences during the interviews.

[. . .]

Degree Requirements

J.D. Requirements. In order to graduate, students must pass all

Comprehensive Exam components, complete at least 88 credit hours

of coursework, and complete at least one Practicum. Students who

complete these requirements receive the degree of Juris Doctor

(J.D.).

M.Law Requirements. Students who earn a “P” in all 1L and 2L

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464 CLINICAL LAW REVIEW [Vol. 24:247

courses but who are unable to pass Comprehensive Exams after a

third attempt will graduate Gemein Law with a Master’s in Law. Their

transcript will note any passing scores on components of the Compre-

hensive Exams. Students with a Master’s in Law are not eligible to

take the bar exam unless they later fulfill requirements to join the bar,

such as earning a J.D. from another institution or completing appren-

ticeship requirements. Students with a Master’s in Law may be eligible

for other law-related career paths. Students may also choose to forego

Comprehensive Exams and to graduate at the end of the 2L year with

a Master’s in Law.

[. . .]

S.J.D. Academic Training

An additional year of academic training is intended to prepare

Gemein Law students to become professors of law or legal research-

ers. The “4L” year can be taken immediately after receiving the J.D.

or later, after the attorney has practiced law. The fourth year of cour-

sework culminates in the Doctor of Juridical Science (S.J.D.) degree.

The S.J.D. distinguishes an attorney who is prepared for academic re-

search and teaching, in addition to practice.

The S.J.D. program has four requirements:

1. Coursework: Each S.J.D. candidate must take one research

methods survey (covering legal analysis, quantitative empirical

methods, and qualitative empirical methods) and one theory

survey (covering legal realism, Critical Legal Studies, and Crit-

ical Race Studies) in the fall and one pedagogy seminar in the

spring.

2. Research Project: Each S.J.D. candidate must engage in origi-

nal research culminating in a publishable law review article

under the supervision of two law faculty.

3. Law Review: Each S.J.D. candidate must participate on the

editorial board of a law review. At Gemein Law School, law

reviews are managed jointly by members of the faculty and by

S.J.D. candidates only.

4. Colloquium: To prepare for teaching and research presenta-

tions, each S.J.D. candidate must prepare a practice lecture on

a topic of interest to be given to J.D. students at the law school

in a colloquium. Students in attendance are invited to give the

S.J.D. candidate constructive feedback on lecture style.

* * *

This sketch imagined a law school that departs radically from the

norms of current teaching by relying on some of the insights and prac-

tices outlined in the foregoing article. Yet this sketch does not fully

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realize the promise of those insights and practices. Part of this was

intentional on my part. I wanted to think through how a law school

might do a much better job of teaching conventional knowledge and

skills that conform to conventional standards and prepare students for

conventional career paths. In sketching Gemein Law, I tried to imag-

ine a school that prepares students for both bar passage and career

practice, where problem-solving is central to lawyering, where profes-

sors treat students with respect rather than contempt, where faculty

design their teaching in community, and where students do not com-

pete with one another. I sketched a school that intentionally chose its

activities to serve its mission. Even where the reader may find that the

activities fall short, this accountability demonstrates the importance of

an intentional, mission-based approach to organizational design.

My sketch is also limited because I designed it alone. I chose to

make collaboration central to Gemein Law because I wholeheartedly

believe that collaboration is needed to solve the practical problem of

regnant lawyering. My “dream” law school would not spring, fully

formed, from my own mind. Instead, it would grow from discussion,

argument, and debate with others with different ideas but similar com-

mitments. Because of this, I am very grateful to be included in this

epilogue as a space to play with ideas and try out changes—not just as

an intellectual exercise but also as a practical step toward realizing a

transformative vision for legal education.

PILOGUE

It may well be that nothing in Part II—and, for that matter, noth-

ing in Part I—will provoke an epiphany. Not what I’ve written, not

what collaborators have contributed, nothing about the whole being

greater than the sum of the parts.

That’s okay, though. Epiphanies by themselves don’t transform a

thing. It’s almost natural to feel inspired at an ardent protest or a

mammoth march, just as it’s effortless to feel transported by the per-

formance of a Yuja Wang, a Gil Scott Heron, a Chavela Vargas. And

it’s the easiest thing in the world to awaken the next morning virtually

unchanged, to go about our lives just as we have before.

We make our choices. And we make them every day, even min-

ute by minute. And we stick with them or not. And, after falling off

the wagon, return to them or not. We translate any epiphanies and

any more subtle realizations into action. Or not.

If we’re to put into action an alternative vision of anything—of a

life well led, of a worthy legal education, you name it—we must ap-

proach the job with the fervor of a recovering addict, the sustained

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resolve of a mountain climber, the radical bravery of the women and

girls who brought down Larry Nassar and aim fundamentally to alter

Michigan State University, U.S.A. Gymnastics, and who knows what

else.

No march, no protest, no artistic performance, and certainly no

lengthy articles will do all this for us. If we’re to change our institu-

tions, we must change ourselves. We make our choices—every bit as

much through inaction as action. If we’re to build legal education

around the Alternative Vision, we must, at once, take a leap of faith

and grind it out. Over and over again. For those of you who think the

daily commitment worth your heartfelt best, others who have gone

before us and many today shall be with you. For what’s it’s worth, so

shall I.