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September 2015

Kristin Holmquist, Challenging Carnegie, 61 Journal of Legal Education 353 (2012) [Read fulltext at Journal of Legal Education website]

In her article "Challenging Carnegie," Kristen Holmquist challenges some of the findings and prescriptions of the Carnegie Report on Legal Education. In the article she challenges the Carnegie "conclusion that law school successfully teaches students to think like lawyers." According to Holmquist, Carnegie defines thinking like a lawyer as an acontextual "non-value based doctrinal analysis." In reality the distinction between thinking like a lawyer and doing like a lawyer is an artificial one which Carnegie fails to recognize.

What Carnegie fails to acknowledge fully is that the shortcomings of law school involve more than insufficient training but really involve a larger more systemic problem. According to Holmquist,

law school may fall short in an even more fundamental way. Our pedagogy and curriculum--an over-reliance on neatly edited cases to the exclusion of working with messy, human facts, in ways that real lawyers might--obscures the inter-dependence of knowing and doing that is at the heart of thinking like a lawyer. It obscures the context and content that lawyers work within while, together with their clients, solving problems. Students' lack of applied learning opportunities may deny them the ability to write a fantastic brief. But the narrow focus on case-method learning may also deny students the opportunity to engage in sophisticated higher-order thinking about law and policy, problems, and goals, and about potential paths, obstructions, and solutions.

Holmquist proposes three solutions in her article. The first is to increase the "factual, empirical and normative content" of legal education beyond the neat, sterile confines of appellate cases. Second, she proposes that law school should involve exposing students to the "cognitive processes that inform the persuasion and decision-making central to lawyering." Finally she suggests that we develop strategies to expose students to cases, "from the ground up." By this she means expose students to the complex and difficult work involved in developing a case and the facts of the case, rather than students reading appellate opinions where the factual universe has already been refined by an important and arduous process which law students are typically not exposed to.

The remainder of the article actually provides examples of how we can achieve the previously stated pedagogical goals. One would be to view the law through other academic disciplines and to create context for legal decision making. For example, she suggests that, "[l]egal arguments about corporate boards . . . cannot help but sound different when the students have a sense of how board members behave and whether they are likely to provide rigorous oversight." Another suggestion for teaching students to really think like lawyers is to have them practice making decisions with incomplete or imperfect information much as lawyers do when they are considering settlement proposals. Related to this is the sometimes cognitive bias lawyers unconsciously exhibit to influence their client one way or another when the lawyer is really seeking only to advise the client. Finally she suggests an expansion of the clinical model beyond the confines of clinics. For example more time might be spent in classes trying to construct case files complete with client interviews, depositions, etc. and then use the appellate cases as authority to solve the problem before them rather than the only thing they consider in learning how to think like a lawyer.

This article is a must read. It provides a deep and thoughtful critique of traditional legal education and the most recent suggestions and solutions found in the Carnegie report. The recommendations for pedagogical reform are also well supported. If you are serious about tailoring your teaching to produce effective lawyers this article provides you with concrete tools for doing so.

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