Thinking Like a Fox: Four Overlapping Domains of Good Lawyering

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Clinical Law Review Fall 2002 Papers Presented at the UCLA/IALS Conference on "Problem Solving in Clinical Education" THINKING LIKE A FOX: FOUR OVERLAPPING DOMAINS OF GOOD LAWYERING Mark Neal Aaronson [FNa1]

Copyright © 2002 Clinical Law Review, Inc.; Mark Neal Aaronson

WESTLAW LAWPRAC INDEX LED---- Law School & Continuing Legal Education In a modest reframing of what it is that we should be teaching to prepare students for the practice of law, this essay identifies and discusses the importance of four overlapping domains of good lawyering: Role conceptualization; problem solving; decision making; and practical judgment. While there is considerable diversity in the courses offered at most law schools, the overwhelming learning experience for a large majority of law students is set by the case method as introduced during the first year and a fairly standard diet of doctrinal courses. Most students venture into nontraditional course areas only a few times during their law school years. As a result, scant direct attention is given to encouraging students to think comprehensively in role as a lawyer, which is what heightened consideration of the four domains of good lawyering is intended to encourage. The domains, though intricately related in practice, are discussed separately to highlight their distinctive characteristics as aspects of thoughtful, responsive, and responsible lawyering and their significance as instructional themes in any course. The concluding section emphasizes that law schools for the 21st century are best thought of as schools of lawyering, a term which encompasses learning about both law and the practice of law. Course catalogues now contain a mix of traditional doctrinal courses, liberal arts courses, and simulated and live-client practice and skills courses. These three strains in contemporary legal education are equally important if students are to gain critical and comprehensive, foundational knowledge regarding both what they should think about in role as a lawyer and how they might go about doing such thinking. I. Introduction Clinical legal education takes as its subject what lawyers do and should do, while the traditional law school curriculum emphasizes *2 thinking about what the law is and should be. A solid legal education requires that sufficient attention be paid to both law and lawyering. Historically, the academic agenda of university-based law schools has been heavily steeped in doctrinal law courses and light in everything else. [FN1] In this essay, synthesizing and building on a wide range of developments in legal education over the last thirty years, I offer a modest reframing of what it is that we should be teaching to prepare students for the practice of law. This reframing calls attention to the importance of a holistic approach to legal education and involves what I term four overlapping domains of good lawyering: role conceptualization; problem solving; decision making; and practical judgment. The four domains together comprise the critical undergirdings for the development of the intellectual versatility required of 21st century lawyers. Before turning to what I mean by each, I note in a few broad strokes several pertinent features of the existing law school curriculum and offer a metaphor for the kind of thoughtful, comprehensive deliberation expected of reliable and responsive lawyers. That metaphor (phrased as a simile) is thinking like a fox. II. The Existing Curriculum

My first observation about the existing legal curriculum is how much has remained the same since 1870 when Christopher Columbus Langdell systematized and popularized the case method of teaching at Harvard Law School, [FN2] yet how varied and diverse are the actual course offerings now available over a three-year period. [FN3] In law schools today, the case method of teaching a core set of subjects still dominates, especially during the critical first year, where students at most schools are required...
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