Legal education in the United States has usually been experiential. For many years, it was undertaken in law office apprenticeships, the classic format for learning by doing. When legal education moved from law offices to academia, its methods changed. During a brief transitional period, law classes became static as experienced practitioners, working first in meeting halls and then in university classrooms, began reciting the "black letter" law of treatises to assembled novices. This lecture system was bound to change, for lawyering, like most professional activity, requires more than learning a set of fixed rules; being an expert lawyer requires learning to interpret legal rules and use them to personal, corporate, and social ends.
The Law School Classroom as Laboratory
Beginning in 1870, Charles Eliot, then president of Harvard University, and Christopher Columbus Langdell, the dean of Harvard's law faculty, transformed the law school classroom from a lecture hall in which professors announced legal principles to a laboratory in which students were called on to interpret and apply principles they had uncovered by reading primary legal texts (constitutions, statutes, regulations, and, most often, judicial opinions). In what became variously known as Socratic, or Langdellian, or case method classes, law students were pulled out of their passive silence. They could not become professionals by sitting and listening. They would learn to be professionals by doing one of the most important kinds of work that legal professionals do: constructing and arguing interpretations of existing legal texts in response to new questions or situations. Students were not told what the law became after an opinion was announced or a legal rule was enacted; they were invited to interpret the law in light of questions the opinion-writer did not confront or situations that legislators may not have contemplated.
This activation of the law school classroom was prescient, for it was based on theories about human learning that were new in the Langdellian era, but are now widely accepted. The core idea, most famously championed in the United States by John Dewey, is that natural, deep, and enduring learning occurs when we act collaboratively to solve problems. Its corollary in legal education is that students understand law more completely when they work together to puzzle out how law will constrain or facilitate human action.
Theory and Practice—A Forced Separation
Unfortunately, the central role that active, experiential learning plays in the Langdellian case method was dimly understood, even by many of its champions. The method came in an incongruous package of reforms. An emphasis on formalism gave school-based learning much of its status and appeal. Professional training in an academic setting was associated with predictable, sequenced, and measured achievement, and therefore with the admissions requirements, fixed curricula, and proficiency examinations that Langdell also introduced at Harvard Law. Rote learning is easy to measure, because its content is fixed. One can say with more certainty whether a fact has been recalled than whether an interpretation or judgment is sound. As proponents of the case method fashioned questions for classroom discussion, or the more consequential final examinations, the goal of forcing students to think under questioning was in tension with the goal of making the law school experience predictable and measurable. Pondering a professor’s question became less a matter of genuine inquiry and more a matter of filling blanks in thoughts the professor had already completed. Instead of being called on to think, students felt called on to guess what a professor wanted to hear.
Langdellian reforms also included reimagining the law school professoriate. Langdell was an experienced but disillusioned practitioner who found satisfaction and solace in academic life. When he entered the legal academy, law school professors were, for the most part, successful practitioners who taught part-time. Langdell worked assiduously to build a full time faculty. Perhaps because of his own disillusionment with practice, Langdell took this sensible reform to extremes. He insisted that practice experience impaired rather than enriched one’s development as a teacher and scholar and built his faculty on the assumption that the best law professors were people who had excelled as law students but remained innocent of the realities of practice. This Langdellian position reinforced a theory-practice stratification that is common among the professions. The dirty work of practice was not thought suitable for serious study, and The Law consistently eclipsed Lawyering as the focus of legal education.
As a result, learning how to practice the law has been deferred to post-graduate employment, which delays client-readiness at best, and forestalls adaptive responses to challenging legal problems, at worst. Deferred practice also poses another problem. It rests on the assumption that learning from experience is a natural byproduct of exposure to legal tasks, rather than a strategic approach to learning that maximizes the benefits of shared challenge, mentorship, and deliberate critique.
Learning through Clinical Practice
The law school clinic has long stood as a crucial complement to Langdellian teaching methods, offering opportunities to observe and engage in legal tasks prior to graduation. But the bridge from the Langdellian classroom to to direct legal service is incomplete in three important respects. First, clinics are expensive, and few schools expend the resources to make them available to all students. Second, because law school clinics have traditionally served the twin functions of public service and professional training, they have been specialized laboratories, emphasizing civil rights, criminal defense, and poverty law but neglecting important areas of commercial, private, and public practice. Finally, clinical programs have been asked to do too much. Because of the Langdellian method’s limited focus, it does not leave students “client-ready.” Conscientious clinical professors have therefore been required to devote time to basic training that might otherwise be devoted to direct and/or more advanced professional service.
Extending the Laboratory Experience—Simulation-Based Learning
In the 1970s, New York University’s increasingly prestigious law school began to develop a new model of legal education. In doing so, it embraced and expanded the Langdellian principle of experiential learning but rejected Langdell’s negative judgment about practice. Under the leadership of Anthony Amsterdam, a practitioner and scholar of Olympian quality, it made what have come to be known as Lawyering or simulation courses a fundamental part of every student’s legal education.
Amsterdam and his colleagues realized that contextualizing and expanding on the doctrinal analysis that was practiced in Langdellian classes required dissecting and rehearsing all of lawyering with sophistication comparable to that which had been brought to doctrinal analysis by Langdell and his followers. Law needed vocabularies for understanding legal process and systems for developing the skills of establishing goals, interpreting facts and rules, and moving strategically through professional interactions.
Over time, the Lawyering program developed a theoretical framework and exercise sequence for a) building experiential and collaborative learning into every phase and every specialty of legal education and b) developing career-long habits of structured critique and self improvement. The Lawyering Method, refined over more than thirty years, identifies the component parts of each lawyering task, engages students in the collaborative performance of that task, then takes student performances as texts for structured, collaborative reflection and critique. In each learning sequence, students are challenged, and then carefully mentored as they work collectively to identify the complex demands of legal practice, cultivate the intellectual flexibility required to meet each demand, perform in role as professionals, and then engage in supervised, qualitative critique of their experiences. With each exercise, new factors and uncertainties help students build on the active, text-based legal reasoning of the Langdellian classroom to develop a broad understanding of law-in-use and a system for life-long self-critique and professional growth.