Law Schools: A Time of New Burdens and New Beginnings

THE HONOURABLE CHIEF JUSTICE SUNDARESH MENON; SUPREME COURT OF SINGAPORE

Article based on the James P. White Lecture on Legal Education at the Indiana University Robert H. McKinney School of Law (Oct. 30, 2018). Author is deeply grateful to his law clerk, Lester Ho, and his colleagues, Assistant Registrars Bryan Fang and Scott Tan, for all their assistance in the research for and preparation of this Lecture.

I. THE AIMS OF A LAW SCHOOL

I am deeply honoured to have been invited to deliver this edition of the James P. White Lecture. This stage has been graced by many distinguished speakers including Chief Justice John Roberts, the Right Honourable Beverley McLachlin PC, former Chief Justice of the Supreme Court of Canada, and Justice Ruth Bader Ginsburg, who so very kindly suggested that I deliver this lecture. It is an esteemed list and I am humbled to be counted among their number.

Each Lecture in this series is delivered on the subject of the legal profession and legal education. Today, my subject lies at the intersection of the two. I want to make the urgent case for the reform of the current model of legal education that is widely adopted throughout the common law world because three powerful overlapping forces have created a “perfect storm” that will irrevocably alter the practice of law. The first is globalisation, which has changed the where of legal practice by breaking down our jurisdictional silos. The second is technology, which has not only changed how legal services are delivered, but what they are, and who will deliver them. And third is the influence of the market, whose values increasingly trump the ideals of the profession and threaten to change the “why” of legal practice.

But, one might ask, what have all these changes to legal practice to do with legal education? After all, the law, and specifically the common law, is a body of principles derived from the accretion of cases over time. Given that fact, one might well conclude that the best way to prepare students for a career in the law is simply to teach them what the law is by reference to decided cases. This way of thinking about the law and legal education was espoused by the former dean of Harvard Law School, Christopher Langdell, who maintained that a “true lawyer” is one whose grasp of legal principles was so utter and complete that he could “apply them with constant facility and certainty to the ever-tangled skein of human affairs.”

Langdell’s conception of the law as a purely inductive discipline has come to define how law is taught around the common law world. It has many merits, chief among which are its academic rigour and the way it promotes the development of an analytical mind. But I suggest two developments have spurred the need to reimagine how we teach law. First, technology has so impacted the “tangled skein of human affairs” that Langdell referred to such that the frameworks around which the legal profession has been organised are set to be upended. Second, and relatedly, the profound changes to legal practice have made it imperative that our law schools acknowledge a responsibility which extends beyond preparing our students to be excellent legal thinkers to equipping them with the skills to become consummate professionals and valuable citizens. I submit to you that a system of education that seeks only to root its students in the corpus of the law without imparting a vital understanding of the rich context within which it operates, the realities of its application, and the essential nature of its calling would be incomplete. If we do not attend to this, our students will graduate with neither the skills required for modern legal practice nor a solid grounding in the values that will serve as the foundation for a life of meaningful engagement with the law. This would be to the detriment not only of our students, but also the societies that they serve. Of course, some of these challenges are new; while others like the inculcation of values are as old as education itself. But it is the coming together of the influences I have referred to, that presents a new and altogether different type of problem.

I believe that the American experience with legal education validates the view that legal education must be responsive to the realities of legal practice. While the Langdellian model has remained popular, American law schools have by slow degrees come to accept that students must be taught not only how tothink like a lawyer but to act as one. As early as the 1890s, the American Bar Association (“ABA”) observed that law schools needed to be brought into “a closer sympathy and contact with the profession.” In the 1930s, proponents of the Legal Realist movement stressed that the law had to be understood against “the hurly-burly of actual practice.” And thus, by the 1970s, nearly half of American law schools offered clinical programmes. [Read entire Article here].

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