Review: The Trouble with Categories: What Theory Can Teach Us About the Doctrine-Skills Divide

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By Andrea J. Boyack from Washburn University School of Law

By now everyone knows that the Carnegie Report encouraged legal education to adopt a more participatory, active model to encourage students not just to learn the “content of the law,” but also to learn lawyering skills. Specifically, the Carnegie Report emphatically encouraged a new methodology that promises to teach the “legal manner of thinking,” rather than merely impart legal doctrine.

The Carnegie Report described in the paragraph above, however, is not the recent 2007 iteration, but rather is the Carnegie Report of 1914. And the new, revolutionary teaching method extolled by Carnegie in this report a century ago was the Socratic Method of discussing cases, a vastly improved method to teach “skills,” as opposed to straight lecture.

We’ve come a long way, baby?

Interestingly, the same methodology that a century ago was heralded as the future of legal education has recently come under fire as staid, tired, and uninspiring. Specifically, the Socratic Method of case analysis is now criticized as imparting doctrine in the abstract, devoid of lawyering skills. The 2007 Carnegie Report calls the case method “predominantly an academic tool divorced from legal practice.”

Today’s “skills” teaching suffers harsh criticisms as well, demeaned by academic purists as teaching lawyering “shop” or “trade,” and lacking true depth, doctrine, and substance. Legal writing courses, for example, are often rudimentary and under-resourced, and “were created with the mistaken impression that writing could be separated from thinking.”

In her recent, stirring article, Linda Edwards points out the ample failings of the ubiquitous skills-doctrine categorization of law school courses and calls for an end to the skills-doctrine divide. After all, explains Edwards, what we now decry as doctrinal teaching divorced from practice was a teaching method that was originally designed to teach the foundational lawyering skill of legal analysis. And at closer examination, the “skills classes” demeaned by certain elites actually do teach legal doctrines both deeply and effectively. Modernly, it is now beyond doubt that the best and most comprehensive learning is hands-on and in context, and all modern legal reformers have preached the integration of “skills” with “doctrine.” Edwards takes these calls for reform one step further, asserting that the entire doctrine-skills divide should be abandoned. The doctrine-skills approach has outlived its usefulness (if it ever was useful), and now serves only to fractionalize faculties and hamper educational innovation and improvement.

Edwards’ case against the doctrine-skills categorization (together with her mini-treatise on the pitfalls of categorization in general) is compelling, and her suggested new conception of categories for law school courses is intriguing. Edwards suggests that, to the extent course categorization is necessary, the categories chosen should reflect the stage of legal education the course represents. She suggests three new categories of foundationalcourses, bridge courses, and capstone courses, and reiterates that both doctrine and skills should ideally exist, intertwined, at each level of the law school experience.

Edwards’ foundational courses would lay the groundwork for legal education, typically being those essential first-year courses that allow a student to obtain a broad framework for the law and provide a new law student those key abilities that will be required in more specialized contexts of legal analysis and application. In Edwards’ estimation, these entry-level courses should teach “foundational cognitive competencies,” focusing not so much on subject matter as in deliberate teaching of legal methods.

Edwards terms typical upper-division courses bridge courses, designed to expand into more specialized subject areas (intellectual property, real estate transactions, trusts and estates, for example, as building upon a foundational property course) and offer new subject areas not directly linked to foundational courses (evidence, labor law, family law, corporations). Edwards suggests that these substantive areas could be taught within the context of deeper cognitive competencies and introduce other key lawyering activities, such as interviewing, problem-solving, and negotiating, in context.

Finally, Edwards anticipates that prior to graduation students would hone their legal study through capstone courses that include even more depth of application, such as clinics or advanced simulation courses. These courses would “bring together a broad span of legal knowledge and competence into a kind of gestalt educational experience.”

Edwards’ call for re-consideration of the traditional law school categories is long overdue. Her discussion and suggestions provide rich inspiration for curricular reform. And her breakdown of the doctrine-skills divide is useful even at the individual class level. Freed from the false doctrine-skills dichotomy, a professor can better consider precisely the correct way to integrate various lawyering goals into a given course, understanding that there can be no skills development without teaching doctrine, and no true understanding of doctrine without development of lawyering skills.

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