Thinking About Methodologies

If there is one thing all US law schools teach, it is how to ‘think like a lawyer.’

Edward Rubin, in his penetrating article Why Law Schools Do Not Teach Contracts and What Socioeconomics Can Do About It, identifies what law schools teach pursuant to Langdell’s approach as a ‘methodology.’ He explains why methodologies matter in academic institutions:

To teach a body of information as an academic subject, one needs a generalized methodology of some sort. This is not necessarily a theory, and certainly not a theory in the sense of a complete explanation that predicts future occurrences, like quantum electrodynamics. Rather, it is a unified approach to the subject matter that enables students to answer a set of evaluative questions.

He doesn’t say it, but for professional education the methodology and the evaluative questions have to be relevant to the kind of reflective practice that marks the professions – it has to be an approach that professionals can draw on in the context rich, unique situations where they are asked to solve particular problems. Rubin explains how methodologies work in these settings:

Confronted with a narrative of past occurrences, history students using the methodology they have been taught can discuss the nature and reliability of the account, the political, social, and economic causes of the event it describes, and the effects of that event on subsequent events.

Langdell’s pedagogy, even its most narrow original form, provides such a methodology. As Rubin notes:

Confronted with a judicial decision, law students using the methodology they have been taught can identify the facts of the case, its holding and dicta, the doctrine on which the judge’s decision is based, and the extent to which the decision is consistent with other decisions based on the same doctrine.

For all the weaknesses of Langdell’s approach, the methodology implicit in his method has proved powerful and useful. It’s not the whole toolbox, but, like putting in golf, it’s essential.

A methodology is something more than a skill or a competency. I don’t think either of those concepts involve an underlying, explanatory theory. To get back to golf, teachers of a skill might tell a golfer to keep his knees bent when teeing off. Someone evaluating or training for competency might look to see how far and straight the ball goes and give appropriate guidance about what should be happening and some ideas on how to improve performance. Academic scholars of a methodology would try to understand the mechanics of a golf swing and try to share a theory and methodology for deconstructing and improving golf swings with students, a theory and methodology they could draw on throughout their careers if problems emerged in their swing.

An important element of a methodology is that it’s not just a collection of practical tips for those in practice. Neither is it limited to the immediate task at hand. It requires a theory, and thinking about that theory. Langdell’s original pedagogy was tied intrinsically to his theory that law study was a kind of science, with the reading of cases being like the examination of botanical or biological specimens. Scholars could spend their lives immersed in exploring the theory, and students could apply the theory and the methodology to diverse situations throughout a lifetime of practice.

Langdell’s method was tied to his view of what mattered in law, all of which he felt could be found in the reported cases. Even for ‘thinking like a lawyer’ law schools have recognized that his approach is incomplete, if for no other reason it does not really engage with other sources of law such as statutes and regulations. Beyond that, the originating theory – that law is some kind of science – has long ago been tossed overboard.

To a remarkable, even ludicrous, degree, Langdell’s view of what law is about (appellate cases) and what lawyers do (think about the law) has remained dominant in American law schools, despite occasional flashes of recognition (legal realism, law and society) that something else is going on. The Langdellian focus on trying to understand and sort out doctrine continues to hold center stage in both law school teaching and scholarship, and as a result, continues to distort academic understanding of what methodologies practicing lawyers need to know.

I think there are other methodologies applied by successful lawyers of all kinds, and that many of these are as worthy of academic study and thoughtful training as how to think like a lawyer. A few of these methodologies, in fact, are pretty well entrenched in the scholarship and the elective curriculum, while others remain conspicuous by their absence. Some are found in other schools at the university, such as business schools, but can be effectively taught to law students and studied by law professors. A complete professional training would equip students with the full range of core methodologies.

To really set out a proper list of methodologies are used by practicing lawyers, we need to know more about what lawyers do. Someone needs to sit in lawyers’ offices, as John Flood did back in the 1980s, attuned to this question, and try to sort out what methodologies are being used. It’s slow and expensive work, I suppose, but as a foundation for a +-$2 billion annual educational enterprise supporting a +-$150 million a year service industry, it would seem that someone should be willing to fund it.

In the meantime, I have some ideas. Some of these derive from the lengthy experiential learning experience I went through by virtue of being a practicing lawyer and founder of a start up company. Others I have developed unscientifically by polling a few lawyer friends via Facebook and email. Some rely on scholarship in the area. In my next post I will go through a few, and then later dig in more detail to one or two. In the meantime, feel free to weigh in with your own nominations in the comments – I promise to steal all the good ones.

If I were the dean of a law school struggling to define its educational mission with regard to training lawyers in these changing times, I would get past doctrine, skills and competencies, and start with this idea of methodologies. Situation specific skills and competencies come and go, and have an uneasy relationship with the academy. Methodologies for professional practice are generalized and durable, and justify academic thought. (Again, this is not to diminish clinical and experiential education, which obviously can play a key role in teaching methodologies, but rather to fix their role in a broader framework).

Leaving school with the same kind of grasp of other core methodologies that most students have of ‘thinking like a lawyer’ may not, I acknowledge, help students get better first jobs. Based on my experiential learning experience, however, I think being trained in the relevant methodologies will help them be better and happier lawyers, which I view as worthwhile in its own right.

Comments

[Jeff Lipshaw]

Ray, this is a remarkably insightful post. I only disagree with the statement "the originating theory - that law is some kind of science - has long ago been tossed overboard."

I agree that Langdell's conception of law as science, that the foundational norms are there to be found by organizing and systematizing the cases, went off the plank a while ago. But I think there is still an overwhelming aspiration to law if not as science then as the subject of theory that reduces, explains, integrates, and makes it coherent as a discipline.

[Scott Fruehwald]

Ray,

I would look at how educators are training students in other fields. Michael Hunter Schwartz was the first to do this in legal education, and I have used insights from general education scholarship in my work on legal education. (http://ssrn.com/abstract=2322486 and http://ssrn.com/abstract=2243128

[twbb]

Of the many sins of the law faculty and administration, letting a 19th century man trained in 19th century jurisprudence still control the curriculum ranks among the most absurd. Let's just ignore almost the entire field of educational psychology or cognitive psychology, and while we're at it let's also ignore the thorough shift in the law from common to statutory law.