Teaching Good and Teaching Well: Integrating Values with Theory and Practice

Journal of Legal Education

Volumn 47, Issue 3, 1997, Pages 401-423

  Myers, Eleanor W ^a  

^a TEMPLE UNIVERSITY   (United States)

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EID: 0031316417     PISSN: 00222208     EISSN: None     Source Type: Journal    
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References (108)

1. Mary K. Hanna, general counsel of the Temple Legal Aid Office, addressing students embarking on their first clinical experience.
2. Lawyers, Law Students and People 24 (Colorado Springs, 1977).
3. See, e.g., Peter A. Joy, The MacCrate Report: Moving Toward Integrated Learning Experiences, 1 Clinical L. Rev. 401 (1994); Carrie Menkel-Meadow, Narrowing the Gap by Narrowing the Field: What's Missing from the MacCrate Report - Of Skills, Legal Science and Being a Human Being, 69 Wash. L. Rev. 593, 617 (1994); John B. Mitchell et al., And Then Suddenly Seattle University Was on Its Way to a Parallel, Integrative Curriculum, 2 Clinical L. Rev. 1, 20-24 (1995); Mark Spiegel, Theory and Practice in Legal Education: An Essay on Clinical Education, 34 UCLA L. Rev. 577 (1987).
4. See, e.g., Peter A. Joy, The MacCrate Report: Moving Toward Integrated Learning Experiences, 1 Clinical L. Rev. 401 (1994); Carrie Menkel-Meadow, Narrowing the Gap by Narrowing the Field: What's Missing from the MacCrate Report - Of Skills, Legal Science and Being a Human Being, 69 Wash. L. Rev. 593, 617 (1994); John B. Mitchell et al., And Then Suddenly Seattle University Was on Its Way to a Parallel, Integrative Curriculum, 2 Clinical L. Rev. 1, 20-24 (1995); Mark Spiegel, Theory and Practice in Legal Education: An Essay on Clinical Education, 34 UCLA L. Rev. 577 (1987).
5. See, e.g., Peter A. Joy, The MacCrate Report: Moving Toward Integrated Learning Experiences, 1 Clinical L. Rev. 401 (1994); Carrie Menkel-Meadow, Narrowing the Gap by Narrowing the Field: What's Missing from the MacCrate Report - Of Skills, Legal Science and Being a Human Being, 69 Wash. L. Rev. 593, 617 (1994); John B. Mitchell et al., And Then Suddenly Seattle University Was on Its Way to a Parallel, Integrative Curriculum, 2 Clinical L. Rev. 1, 20-24 (1995); Mark Spiegel, Theory and Practice in Legal Education: An Essay on Clinical Education, 34 UCLA L. Rev. 577 (1987).
6. See, e.g., Peter A. Joy, The MacCrate Report: Moving Toward Integrated Learning Experiences, 1 Clinical L. Rev. 401 (1994); Carrie Menkel-Meadow, Narrowing the Gap by Narrowing the Field: What's Missing from the MacCrate Report - Of Skills, Legal Science and Being a Human Being, 69 Wash. L. Rev. 593, 617 (1994); John B. Mitchell et al., And Then Suddenly Seattle University Was on Its Way to a Parallel, Integrative Curriculum, 2 Clinical L. Rev. 1, 20-24 (1995); Mark Spiegel, Theory and Practice in Legal Education: An Essay on Clinical Education, 34 UCLA L. Rev. 577 (1987).
7. See, e.g., Joseph P. Tomain & Michael E. Solimine, Skills Skepticism in the Postclinic World, 40 J. Legal Educ. 307, 317-19 (1990); Steven Lubet, Ethics and Theory Choice in Advocacy Education, 44 J. Legal Educ. 81 (1994); James E. Moliterno, An Analysis of Ethics Teaching in Law Schools: Replacing Lost Benefits of the Apprentice System in the Academic Atmosphere, 60 U. Cin. L. Rev. 83 (1991).
8. See, e.g., Joseph P. Tomain & Michael E. Solimine, Skills Skepticism in the Postclinic World, 40 J. Legal Educ. 307, 317-19 (1990); Steven Lubet, Ethics and Theory Choice in Advocacy Education, 44 J. Legal Educ. 81 (1994); James E. Moliterno, An Analysis of Ethics Teaching in Law Schools: Replacing Lost Benefits of the Apprentice System in the Academic Atmosphere, 60 U. Cin. L. Rev. 83 (1991).
9. See, e.g., Joseph P. Tomain & Michael E. Solimine, Skills Skepticism in the Postclinic World, 40 J. Legal Educ. 307, 317-19 (1990); Steven Lubet, Ethics and Theory Choice in Advocacy Education, 44 J. Legal Educ. 81 (1994); James E. Moliterno, An Analysis of Ethics Teaching in Law Schools: Replacing Lost Benefits of the Apprentice System in the Academic Atmosphere, 60 U. Cin. L. Rev. 83 (1991).
10. See, e.g., Deborah L. Rhode, Ethics by the Pervasive Method, 42 J. Legal Educ. 31, 32 (1992); Walter H. Bennett, Jr., Making Moral Lawyers: A Modest Proposal, 36 Cath. U. L. Rev. 45 (1986); Joy, supra note 3, at 407-10.
11. See, e.g., Deborah L. Rhode, Ethics by the Pervasive Method, 42 J. Legal Educ. 31, 32 (1992); Walter H. Bennett, Jr., Making Moral Lawyers: A Modest Proposal, 36 Cath. U. L. Rev. 45 (1986); Joy, supra note 3, at 407-10.
12. Critics suggest that legal education is excessively preoccupied with teaching abstract theory and does not give students a practical appreciation of how that theory works in real life. See, e.g., William R. Trail & William D. Underwood, The Decline of Professional Legal Training and a Proposal for Its Revitalization in Professional Law Schools, 48 Baylor L. Rev. 201 (1996); Leslie Bender, Hidden Messages in the Required First-Year Law School Curriculum, 40 Clev. St. L. Rev. 387, 392-93 (1992). It focuses on litigation as the primary mode of lawyers' work, when in fact litigation forms very little part of the day-to-day activities of most practicing lawyers. Nancy L. Schultz, How Do Lawyers Really Think? 42 J. Legal Educ. 57, 59 (1992). Others suggest that traditional law school education privileges reason and pragmatism over emotion and idealism. See, e.g., Angela P. Harris & Marjorie M. Shultz, "A(nother) Critique of Pure Reason": Toward Civic Virtue in Legal Education, 45 Stan. L. Rev. 1773, 1773 (1993). Moreover, law school teaching tends to reinforce hierarchal relationships, reward competitive and adversarial behavior, and discourage cooperation and collaboration among students. (This critique has been identified with feminist thinking, see Deborah L. Rhode, Missing Questions: Feminist Perspectives on Legal Education, 45 Stan. L. Rev. 1547, 1550 (1993), but as Rhode points out, it is shared by others, including legal realists, humanists, clinicians, and those from a law and society tradition. Id. at 1548 n.5. We share those views, whatever the label, and have consciously constructed this course to offer students an alternative experience.)
13. Critics suggest that legal education is excessively preoccupied with teaching abstract theory and does not give students a practical appreciation of how that theory works in real life. See, e.g., William R. Trail & William D. Underwood, The Decline of Professional Legal Training and a Proposal for Its Revitalization in Professional Law Schools, 48 Baylor L. Rev. 201 (1996); Leslie Bender, Hidden Messages in the Required First-Year Law School Curriculum, 40 Clev. St. L. Rev. 387, 392-93 (1992). It focuses on litigation as the primary mode of lawyers' work, when in fact litigation forms very little part of the day-to-day activities of most practicing lawyers. Nancy L. Schultz, How Do Lawyers Really Think? 42 J. Legal Educ. 57, 59 (1992). Others suggest that traditional law school education privileges reason and pragmatism over emotion and idealism. See, e.g., Angela P. Harris & Marjorie M. Shultz, "A(nother) Critique of Pure Reason": Toward Civic Virtue in Legal Education, 45 Stan. L. Rev. 1773, 1773 (1993). Moreover, law school teaching tends to reinforce hierarchal relationships, reward competitive and adversarial behavior, and discourage cooperation and collaboration among students. (This critique has been identified with feminist thinking, see Deborah L. Rhode, Missing Questions: Feminist Perspectives on Legal Education, 45 Stan. L. Rev. 1547, 1550 (1993), but as Rhode points out, it is shared by others, including legal realists, humanists, clinicians, and those from a law and society tradition. Id. at 1548 n.5. We share those views, whatever the label, and have consciously constructed this course to offer students an alternative experience.)
14. Critics suggest that legal education is excessively preoccupied with teaching abstract theory and does not give students a practical appreciation of how that theory works in real life. See, e.g., William R. Trail & William D. Underwood, The Decline of Professional Legal Training and a Proposal for Its Revitalization in Professional Law Schools, 48 Baylor L. Rev. 201 (1996); Leslie Bender, Hidden Messages in the Required First-Year Law School Curriculum, 40 Clev. St. L. Rev. 387, 392-93 (1992). It focuses on litigation as the primary mode of lawyers' work, when in fact litigation forms very little part of the day-to-day activities of most practicing lawyers. Nancy L. Schultz, How Do Lawyers Really Think? 42 J. Legal Educ. 57, 59 (1992). Others suggest that traditional law school education privileges reason and pragmatism over emotion and idealism. See, e.g., Angela P. Harris & Marjorie M. Shultz, "A(nother) Critique of Pure Reason": Toward Civic Virtue in Legal Education, 45 Stan. L. Rev. 1773, 1773 (1993). Moreover, law school teaching tends to reinforce hierarchal relationships, reward competitive and adversarial behavior, and discourage cooperation and collaboration among students. (This critique has been identified with feminist thinking, see Deborah L. Rhode, Missing Questions: Feminist Perspectives on Legal Education, 45 Stan. L. Rev. 1547, 1550 (1993), but as Rhode points out, it is shared by others, including legal realists, humanists, clinicians, and those from a law and society tradition. Id. at 1548 n.5. We share those views, whatever the label, and have consciously constructed this course to offer students an alternative experience.)
15. Critics suggest that legal education is excessively preoccupied with teaching abstract theory and does not give students a practical appreciation of how that theory works in real life. See, e.g., William R. Trail & William D. Underwood, The Decline of Professional Legal Training and a Proposal for Its Revitalization in Professional Law Schools, 48 Baylor L. Rev. 201 (1996); Leslie Bender, Hidden Messages in the Required First-Year Law School Curriculum, 40 Clev. St. L. Rev. 387, 392-93 (1992). It focuses on litigation as the primary mode of lawyers' work, when in fact litigation forms very little part of the day-to-day activities of most practicing lawyers. Nancy L. Schultz, How Do Lawyers Really Think? 42 J. Legal Educ. 57, 59 (1992). Others suggest that traditional law school education privileges reason and pragmatism over emotion and idealism. See, e.g., Angela P. Harris & Marjorie M. Shultz, "A(nother) Critique of Pure Reason": Toward Civic Virtue in Legal Education, 45 Stan. L. Rev. 1773, 1773 (1993). Moreover, law school teaching tends to reinforce hierarchal relationships, reward competitive and adversarial behavior, and discourage cooperation and collaboration among students. (This critique has been identified with feminist thinking, see Deborah L. Rhode, Missing Questions: Feminist Perspectives on Legal Education, 45 Stan. L. Rev. 1547, 1550 (1993), but as Rhode points out, it is shared by others, including legal realists, humanists, clinicians, and those from a law and society tradition. Id. at 1548 n.5. We share those views, whatever the label, and have consciously constructed this course to offer students an alternative experience.)
16. Critics suggest that legal education is excessively preoccupied with teaching abstract theory and does not give students a practical appreciation of how that theory works in real life. See, e.g., William R. Trail & William D. Underwood, The Decline of Professional Legal Training and a Proposal for Its Revitalization in Professional Law Schools, 48 Baylor L. Rev. 201 (1996); Leslie Bender, Hidden Messages in the Required First-Year Law School Curriculum, 40 Clev. St. L. Rev. 387, 392-93 (1992). It focuses on litigation as the primary mode of lawyers' work, when in fact litigation forms very little part of the day-to-day activities of most practicing lawyers. Nancy L. Schultz, How Do Lawyers Really Think? 42 J. Legal Educ. 57, 59 (1992). Others suggest that traditional law school education privileges reason and pragmatism over emotion and idealism. See, e.g., Angela P. Harris & Marjorie M. Shultz, "A(nother) Critique of Pure Reason": Toward Civic Virtue in Legal Education, 45 Stan. L. Rev. 1773, 1773 (1993). Moreover, law school teaching tends to reinforce hierarchal relationships, reward competitive and adversarial behavior, and discourage cooperation and collaboration among students. (This critique has been identified with feminist thinking, see Deborah L. Rhode, Missing Questions: Feminist Perspectives on Legal Education, 45 Stan. L. Rev. 1547, 1550 (1993), but as Rhode points out, it is shared by others, including legal realists, humanists, clinicians, and those from a law and society tradition. Id. at 1548 n.5. We share those views, whatever the label, and have consciously constructed this course to offer students an alternative experience.)
17. Section of Legal Education and Admissions to the Bar, American Bar Association, Report of the Task Force on Law Schools and the Profession: Narrowing the Gap, Legal Education and Professional Development - an Educational Continuum 266-67 (Chicago, 1992).
18. Section of Legal Education and Admissions to the Bar, American Bar Association, Teaching and Learning Professionalism: Report of the Professionalism Committee (Chicago, 1996).
19. Descriptions of integrated courses at other law schools include Robert P. Burns, Teaching the Basic Ethics Class Through Simulation: The Northwestern Program in Advocacy and Professionalism, Law & Contemp. Probs., Summer/Autumn 1995, at 37; Joy, supra note 3 (Case Western Reserve); David Luban & Michael Millemann, Good Judgment: Ethics Teaching in Dark Times, 9 Geo. J. Legal Ethics 31 (1995) (Maryland); Mitchell et al., supra note 3 (Seattle); James E. Moliterno, Teaching Ethics in a Program of Comprehensive Skills Development, 15 J. Legal Prof. 145 (1991) (William and Mary); Barbara Bennett Woodhouse, Mad Midwifery: Bringing Theory, Doctrine, and Practice to Life, 91 Mich. L. Rev. 1977 (1993) (Pennsylvania).
20. Descriptions of integrated courses at other law schools include Robert P. Burns, Teaching the Basic Ethics Class Through Simulation: The Northwestern Program in Advocacy and Professionalism, Law & Contemp. Probs., Summer/Autumn 1995, at 37; Joy, supra note 3 (Case Western Reserve); David Luban & Michael Millemann, Good Judgment: Ethics Teaching in Dark Times, 9 Geo. J. Legal Ethics 31 (1995) (Maryland); Mitchell et al., supra note 3 (Seattle); James E. Moliterno, Teaching Ethics in a Program of Comprehensive Skills Development, 15 J. Legal Prof. 145 (1991) (William and Mary); Barbara Bennett Woodhouse, Mad Midwifery: Bringing Theory, Doctrine, and Practice to Life, 91 Mich. L. Rev. 1977 (1993) (Pennsylvania).
21. Descriptions of integrated courses at other law schools include Robert P. Burns, Teaching the Basic Ethics Class Through Simulation: The Northwestern Program in Advocacy and Professionalism, Law & Contemp. Probs., Summer/Autumn 1995, at 37; Joy, supra note 3 (Case Western Reserve); David Luban & Michael Millemann, Good Judgment: Ethics Teaching in Dark Times, 9 Geo. J. Legal Ethics 31 (1995) (Maryland); Mitchell et al., supra note 3 (Seattle); James E. Moliterno, Teaching Ethics in a Program of Comprehensive Skills Development, 15 J. Legal Prof. 145 (1991) (William and Mary); Barbara Bennett Woodhouse, Mad Midwifery: Bringing Theory, Doctrine, and Practice to Life, 91 Mich. L. Rev. 1977 (1993) (Pennsylvania).
22. Descriptions of integrated courses at other law schools include Robert P. Burns, Teaching the Basic Ethics Class Through Simulation: The Northwestern Program in Advocacy and Professionalism, Law & Contemp. Probs., Summer/Autumn 1995, at 37; Joy, supra note 3 (Case Western Reserve); David Luban & Michael Millemann, Good Judgment: Ethics Teaching in Dark Times, 9 Geo. J. Legal Ethics 31 (1995) (Maryland); Mitchell et al., supra note 3 (Seattle); James E. Moliterno, Teaching Ethics in a Program of Comprehensive Skills Development, 15 J. Legal Prof. 145 (1991) (William and Mary); Barbara Bennett Woodhouse, Mad Midwifery: Bringing Theory, Doctrine, and Practice to Life, 91 Mich. L. Rev. 1977 (1993) (Pennsylvania).
23. See generally Paul R. Tremblay, Practiced Moral Activism, 8 St. Thomas L. Rev. 9 (1995); Robert W. Gordon & William H. Simon, The Redemption of Professionalism? in Lawyers' Ideals/Lawyers' Lives: Transformations in the American Legal Profession, eds. Robert L. Nelson et al., 230, 236 (Ithaca, 1992).
24. See generally Paul R. Tremblay, Practiced Moral Activism, 8 St. Thomas L. Rev. 9 (1995); Robert W. Gordon & William H. Simon, The Redemption of Professionalism? in Lawyers' Ideals/Lawyers' Lives: Transformations in the American Legal Profession, eds. Robert L. Nelson et al., 230, 236 (Ithaca, 1992).
25. See Luban & Millemann, supra note 9, at 38; Lubet, supra note 4, at 87.
26. I worked for several years as an associate at the University of Pennsylvania's Center on Professionalism, where we developed a series of videotapes entitled Professional Responsibility for Lawyers: A Guided Course (CCH). I draw on those tapes as well as other excellent videotapes which are available for this teaching. See Edmund B. Spaeth et al., Teaching Legal Ethics: Exploring the Continuum, Law & Contemp. Probs., Summer/Autumn 1995, at 153, 162.
27. See Moliterno, supra note 4, at 112-13 ("The effect that storytelling can have on students' motivation toward self-reflection can be considerable.").
28. Deborah L. Rhode & David Luban, Legal Ethics, 2d ed. (Westbury, 1995).
29. See Thomas L. Shaffer, The Profession as a Moral Teacher, 18 St. Mary's L.J. 195, 217-18 (1986).
30. See Bennett, supra note 5, at 64.
31. See Alex M. Johnson, Jr., Think Like a Lawyer, Work Like a Machine: The Dissonance Between Law School and Law Practice, 64 S. Cal. L. Rev 1231, 1254-59 (1991).
32. I have written elsewhere on the relatively modest impact that law school education seems to have on the actual professional behavior of practicing lawyers. "Simple Truths" About Moral Education, 45 Am. U. L. Rev. 823, 833-38 (1996).
33. Of course, this insight is hardly new. Advocates of clinical education and simulated practice experiences have long appreciated the superiority of such experiences for teaching professional responsibility. See, e.g., Moliterno, supra note 4; Luban & Millemann, supra note 9, at 40. Each of these articles cites numerous others in support of this point.
34. See Gordon & Simon, supra note 10, at 238.
35. See, e.g., Luban & Millemann, supra note 9.
36. Some commentators assume that schools must make a choice between teaching ethics based on simulations or live client clinical experiences. We do not offer our simulated course as a substitute for clinical experience. Indeed, we expect that most of our students will elect a clinical experience in their third year, and Temple Law School has already developed clinical opportunities to build on the student's experiences in ITP, e.g., a nonprofit clinic, a mothers-with-AIDS clinic, and a divorce mediation clinic.
37. There is abundant evidence, both anecdotal and empirical, that traditional ethics instruction is ineffective, marginal, and deeply resented by students. See, e.g., Luban & Millemann, supra note 9, at 37-39; Ronald M. Pipkin, Law School Instruction in Professional Responsibility: A Curricular Paradox, 1979 Am. B. Found. Res. J. 247; Dale C. Moss, Out of Balance: Why Can't Law Schools Teach Ethics? Student Law., Oct. 1991, at 19, quoted in Rhode, supra note 5, at 40 ("Professional responsibility is the dog of the law school [curriculum] - hard to teach, disappointing to take, and often presented to vacant seats or vacant minds."). Delaying professional responsibility instruction until students' final year seems to reinforce the message of its marginality to effective practice.
38. There is abundant evidence, both anecdotal and empirical, that traditional ethics instruction is ineffective, marginal, and deeply resented by students. See, e.g., Luban & Millemann, supra note 9, at 37-39; Ronald M. Pipkin, Law School Instruction in Professional Responsibility: A Curricular Paradox, 1979 Am. B. Found. Res. J. 247; Dale C. Moss, Out of Balance: Why Can't Law Schools Teach Ethics? Student Law., Oct. 1991, at 19, quoted in Rhode, supra note 5, at 40 ("Professional responsibility is the dog of the law school [curriculum] - hard to teach, disappointing to take, and often presented to vacant seats or vacant minds."). Delaying professional responsibility instruction until students' final year seems to reinforce the message of its marginality to effective practice.
39. The course appeals primarily to second-year students because of the way it is scheduled, because it offers students credit in Trusts and Estates, traditionally a second-year course, and because we market it to rising second-year students. In the two years that the course has been taught, most of the students were second-year students, though we enrolled some third-year students too.
40. In her words, T&E is particularly accessible to students because it involves experiences they have all encountered: "property, death, giving, and power." From the first week of class the students begin dealing with a client's wishes about the disposition of her property. In their first exercise, they counsel a mother who is thinking of treating her children differently in disposing of the family business. After reading a few cases on the relatively unfettered testamentary power to dispose of one's property, students feel comfortable working with the legal principles. They readily grasp the legal issue that an otherwise competent testator has the right to leave property to whomever she pleases, limited only by public policy and statutory elective shares. See generally Shapira v. Union Nat'l Bank, 315 N.E.2d 825 (Ohio C.P. 1974). (Many students are also eager to impose their personal views on their clients, providing an ideal format in which to introduce the first professional responsibility issue involving the allocation of decision-making responsibility between attorney and client.)
41. See Sara McLanahan & Lynne Casper, Growing Diversity and Inequality in the American Family, in 2 State of the Union: America in the 1990s (Social Trends), ed. Reynolds Farley, 1 (New York, 1995).
42. Contrast Luban & Millemann, supra note 9, at 65, in which the authors describe integrating the two components of practice and ethics in teaching based on clinical experience by "rearranging the classroom work on the run, shuffling the syllabus to mirror fast-breaking developments in the clinical work." See also Marla L. Mitchell, Beyond a Book Review: Using Clinical Scholarship in Our Teaching, 2 Clinical L. Rev. 251, 277-83 (1995).
43. See Jack L. Sammons, Jr., Professing: Some Thoughts on Professionalism and Classroom Teaching, 3 Geo. J. Legal Ethics 609, 617 (1990); Paul T. Wangerin, Objective, Multiplistic, and Relative Truth in Developmental Psychology and Legal Education, 62 Tul. L. Rev. 1237, 1282 n. 171 (1988).
44. See Jack L. Sammons, Jr., Professing: Some Thoughts on Professionalism and Classroom Teaching, 3 Geo. J. Legal Ethics 609, 617 (1990); Paul T. Wangerin, Objective, Multiplistic, and Relative Truth in Developmental Psychology and Legal Education, 62 Tul. L. Rev. 1237, 1282 n. 171 (1988).
45. See William J. Woodward, Jr., Empiricists and the Collapse of the Theory-Practice Dichotomy in the Large Classroom: A Review of Lopucki and Warren's Secured Credit: A Systems Approach, 74 Wash. U. L.Q. 419, 422 n.14 (1996).
46. At Temple Law School most students take trial advocacy and advanced trial advocacy either in an integrated format or as freestanding courses. It was our hope to develop a parallel track for students who did not see themselves as trial lawyers, so they could elect to receive the same kind of hands-on training that the students receive in trial skills. Of course, some students take both trial advocacy and ITP.
47. See Spaeth et al., supra note 12, at 158. There are texts which provide materials to teach cases from a transactional perspective. The T&E text that Nancy Knauer uses in this course incorporates such materials. Jesse Dukeminier & Stanley M. fohanson, Wills, Trusts, and Estates, 4th ed. (Boston, 1994). See also Richard Danzig, The Capability Problem in Contract Law, 3 (Mineola, 1978); Robert S. Summers & Robert A. Hillman, Contract and Related Obligation: Theory, Doctrine, and Practice, 2d ed., 5-26 (St. Paul, 1992); Lewis D. Solomon et al., Corporations Law and Policy, 3d ed., at v (St. Paul, 1994); Lynn M. Lopucki & Elizabeth Warren, Secured Credit: A Systems Approach (Boston, 1995).
48. See Spaeth et al., supra note 12, at 158. There are texts which provide materials to teach cases from a transactional perspective. The T&E text that Nancy Knauer uses in this course incorporates such materials. Jesse Dukeminier & Stanley M. fohanson, Wills, Trusts, and Estates, 4th ed. (Boston, 1994). See also Richard Danzig, The Capability Problem in Contract Law, 3 (Mineola, 1978); Robert S. Summers & Robert A. Hillman, Contract and Related Obligation: Theory, Doctrine, and Practice, 2d ed., 5-26 (St. Paul, 1992); Lewis D. Solomon et al., Corporations Law and Policy, 3d ed., at v (St. Paul, 1994); Lynn M. Lopucki & Elizabeth Warren, Secured Credit: A Systems Approach (Boston, 1995).
49. See Spaeth et al., supra note 12, at 158. There are texts which provide materials to teach cases from a transactional perspective. The T&E text that Nancy Knauer uses in this course incorporates such materials. Jesse Dukeminier & Stanley M. fohanson, Wills, Trusts, and Estates, 4th ed. (Boston, 1994). See also Richard Danzig, The Capability Problem in Contract Law, 3 (Mineola, 1978); Robert S. Summers & Robert A. Hillman, Contract and Related Obligation: Theory, Doctrine, and Practice, 2d ed., 5-26 (St. Paul, 1992); Lewis D. Solomon et al., Corporations Law and Policy, 3d ed., at v (St. Paul, 1994); Lynn M. Lopucki & Elizabeth Warren, Secured Credit: A Systems Approach (Boston, 1995).
50. See Spaeth et al., supra note 12, at 158. There are texts which provide materials to teach cases from a transactional perspective. The T&E text that Nancy Knauer uses in this course incorporates such materials. Jesse Dukeminier & Stanley M. fohanson, Wills, Trusts, and Estates, 4th ed. (Boston, 1994). See also Richard Danzig, The Capability Problem in Contract Law, 3 (Mineola, 1978); Robert S. Summers & Robert A. Hillman, Contract and Related Obligation: Theory, Doctrine, and Practice, 2d ed., 5-26 (St. Paul, 1992); Lewis D. Solomon et al., Corporations Law and Policy, 3d ed., at v (St. Paul, 1994); Lynn M. Lopucki & Elizabeth Warren, Secured Credit: A Systems Approach (Boston, 1995).
51. See Spaeth et al., supra note 12, at 158. There are texts which provide materials to teach cases from a transactional perspective. The T&E text that Nancy Knauer uses in this course incorporates such materials. Jesse Dukeminier & Stanley M. fohanson, Wills, Trusts, and Estates, 4th ed. (Boston, 1994). See also Richard Danzig, The Capability Problem in Contract Law, 3 (Mineola, 1978); Robert S. Summers & Robert A. Hillman, Contract and Related Obligation: Theory, Doctrine, and Practice, 2d ed., 5-26 (St. Paul, 1992); Lewis D. Solomon et al., Corporations Law and Policy, 3d ed., at v (St. Paul, 1994); Lynn M. Lopucki & Elizabeth Warren, Secured Credit: A Systems Approach (Boston, 1995).
52. The client files were written by Nancy Knauer and are being published with accompanying teacher's manuals by the National Institute of Trial Advocacy under the title The Transactional Practice Series. This article includes some excerpts, slightly edited, from the client files; these appear in a distinctive typeface, beginning on page 413.
53. The out-of-class activities consist of meetings among students to plan their representations, draft joint documents, and negotiate with opposing counsel. By allocating an extra credit for these activities and providing a time for them on the schedule, we make it easier for them to schedule the work; and they feel that we have acknowledged the extraordinary demands of the out-of-class work.
54. Since the first year, the teaching assistants have all been third-year students who completed ITP in their second year. An interesting benefit which we did not anticipate has been their reports that they have learned a great deal from experiencing the simulations a second time, this time from the client's perspective. They say that they appreciate the critiques that they received as students on a new level after playing the role of client.
55. See Myers, supra note 18, at 845. Students usually meet nearly all the adjunct faculty. Each student is assigned a different adjunct each semester and often encounters another who judges their final negotiation. In addition, we invite adjunct faculty to participate in one or two of the substantive classes during the year. Nancy Knauer and I identify the adjunct faculty and invite them to teach in the program. Each of us practiced law locally before teaching, and we know many talented, enthusiastic colleagues on whom we draw. We plan to create an advisory board to assist in the development of future integrated courses and to become an active pool of potential teachers and other participants in these courses.
56. Curtis J. Berger, Teaching "S&V" Beyond the Live Client Clinic: We Can Do Far More Without Spending Far More, in The MacCrate Report: Building the Educational Continuum, Conference Proceedings, eds. Joan S. Howland & William H. Lindberg, 72 (St. Paul, 1993).
57. MacCrate Report at 3.
58. Harry T. Edwards, The Growing Disjunction Between Legal Education and the Legal Profession, 91 Mich. L. Rev. 34 (1992); Graham C. Lilly, Law Schools Without Lawyers? Winds of Change in Legal Education, 81 Va. L. Rev. 1421 (1995).
59. Harry T. Edwards, The Growing Disjunction Between Legal Education and the Legal Profession, 91 Mich. L. Rev. 34 (1992); Graham C. Lilly, Law Schools Without Lawyers? Winds of Change in Legal Education, 81 Va. L. Rev. 1421 (1995).
60. The textbook for the transactional practice component of ITP is Robert M. Bastress & Joseph D. Harbaugh, Interviewing, Counseling, and Negotiating (Boston, 1990).
61. Adjunct faculty are expected to provide students with prompt written feedback on their writing assignments. Periodically the full-time faculty provide additional feedback. Students therefore receive prompt and continuous feedback on both written and oral work throughout the year.
62. This method consists of (1) headlining the aspect of the student's performance that the teacher wishes to address, (2) playing back (that is, restating) the student's performance to focus the critique, (3) explaining why the student's performance was not appropriate and how to correct it, and (4) demonstrating how to do it better. For a description of this technique in a trial advocacy setting, see Edward D. Ohlbaum, Basic Instinct: Case Theory and Courtroom Performance, 66 Temp. L. Rev. 1, 12 (1993).
63. See Luban & Millemann, supra note 9, at 58-64; Robert Condlin, The Moral Failure of Clinical Legal Education, in The Good Lawyer: Lawyers' Roles and Lawyers' Ethics, ed. David Luban, 317, 323 (Totowa, 1984).
64. See Condlin, supra note 42, at 326-39; Luban & Millemann, supra note 9, at 73 & n.161; Mitchell, supra note 27, at 275.
65. See, e.g., Wangerin, supra note 28, at 1284; Steven Hartwell, Promoting Moral Development Through Experiential Teaching, 1 Clinical L. Rev. 505, 530 (1995).
66. Condlin, supra note 42, at 326.
67. See Wolfgang Edelstein, Moral Intervention: A Skeptical Note, in Moral Education: Theory and Application, eds. Marvin W. Berkowitz & Fritz Oser, 387, 392-96 (Hillsdale, N.J., 1985); see generally A Framework for Moral Discourse, in Thomas L. Shaffer & Robert F. Cochran, Jr., Lawyers, Clients and Moral Responsibility 113 (St. Paul, 1994).
68. See Wolfgang Edelstein, Moral Intervention: A Skeptical Note, in Moral Education: Theory and Application, eds. Marvin W. Berkowitz & Fritz Oser, 387, 392-96 (Hillsdale, N.J., 1985); see generally A Framework for Moral Discourse, in Thomas L. Shaffer & Robert F. Cochran, Jr., Lawyers, Clients and Moral Responsibility 113 (St. Paul, 1994).
69. Students sometimes make substantive mistakes, rather than mistakes of judgment or misinterpretation of the rules. Because this is a layered course, it is important to tease apart the substantive errors, which we may wish to correct, from the issue of misguided or faulty judgment about which we are encouraging reflection. These issues are not always easy to segregate. Sometimes errors of judgment can arise from a misunderstanding of doctrine or failure to appreciate practical reality, such as administrative costs or other transaction charges. Correcting the substantive error may alter the student's judgment. We attempt to be explicit about what we are doing so that students do not misconstrue a substantive correction for a pronouncement on the right way to practice law.
70. In his Teachers' Guide accompanying Lives of Lawyers: Journeys in the Organizations of Practice (Ann Arbor, 1994), Michael J. Kelly confronts an analogous problem in creating a meaningful classroom experience from the detailed stories of practicing lawyers.
71. Our school has a tradition of pass/fail grading in skills sections in both the advocacy courses and the transactional course. Grades do not seem necessary to motivate students to work hard on their simulations, and the absence of grades seems to foster collaborations. In any event individual grading would be difficult because the students work in teams for most of these exercises.
72. In the fall the PR portion of the exam is worth 25 to 30 percent of the total; in the spring the T&E portion is assigned 25 to 30 percent. The exam is usually a client file - a take-home exam to be completed in 24 hours. The exam draws on information from the simulations and usually includes a question that requires the students to describe how they would counsel their client in light of their legal analysis.
73. Although we have tried to segregate the questions so that we could each read only "our own" portion of the exam, we have found that the students do not neatly segregate their responses. Some of the elegance of the course is reflected in the well-integrated student responses to the exam.
74. See Gordon & Simon, supra note 10, at 238.
75. I am indebted to Theresa Glennon for her insight on students' individual development.
76. See, e.g., Rhode, supra note 5, at 53; Deborah Rhode, Into the Valley of Ethics: Professional Responsibility and Educational Reform, Law & Contemp. Probs., Summer/Autumn 1995, at 139, 150; Luban & Millemann, supra note 9, at 79; Teaching and Learning Professionalism, supra note 8, at 14.
77. The first year we taught the course, Nancy Knauer and I attended nearly all of each other's classes to observe how the course was working and to learn as much about each other's teaching as we could. The second year our attendance in each other's classes was more sporadic. Each of us has tried to observe as many simulations as we can. I always observe simulations on which I plan to debrief the students.
78. In addition to allocation of power in the attorney-client relationship, ITP covers conflicts of interest, confidentiality, power and candor in negotiation, competence, and the limits of proper representation. Those issues are addressed in the context of the representation of individuals during the first semester and revisited or expanded in the context of entity representation during the second semester. I also cover advertising, bar discipline, and dilemmas of advocacy although those topics are not formally integrated into the simulations.
79. See Lubet, supra note 4, at 88. Proponents of clinical education have long recognized the importance of experience to learning professional responsibility. See, e.g., Luban & Millemann, supra note 9, at 40.
80. From a T&E perspective, the file illustrates the importance of estate planning for persons of modest means. Here, Suzanne is arranging for something more valuable than material wealth - the well-being of her daughter. This client matter also highlights issues of medical treatment decisions and the partially competent client.
81. Model Rules of Professional Conduct Rule 1.2.
82. Model Rules of Professional Conduct Rule 1.4.
83. Students sometimes believe that the rules require a hands-off approach to a client's decision-making, unless the client proposes to do something unlawful. This client matter introduces the concept that exercising judgment not only is permissible, but is an expected part of lawyering. It helps correct the misimpression shared by many law students that there is a single appropriate way to practice law.
84. Luban & Millemann, supra note 9, at 31.
85. In a related context, Howard Lesnick had this to say about a lawyer's dilemma regarding the role of judgment and client autonomy: I've come to a curious conclusion: I honestly do not think it matters which position the attorney takes - to leave the final decision with the client or insist on keeping it - so much as I think it matters whether the attorney makes either decision in a way that respects the concerns of both attorney and client, and treats the client as an understanding independent person, with interests and sensibilities separate from the attorney, and the ability and obligation to assume responsibility for his or her decisions. Comment, in Elizabeth Dvorkin et al., Becoming a Lawyer: A Humanistic Perspective on Legal Education and Professionalism 200, 202 (St. Paul, 1981).
86. See Mark Neal Aaronson, Be Just to One Another: Preliminary Thoughts on Civility, Moral Character, and Professionalism, 8 St. Thomas L. Rev. 113, 116 (1995); Rhode, supra note 5, at 45.
87. See Model Rules of Professional Conduct Rule 1.2. That class includes a discussion of the OPM case (described at 66 S. Cal. L. Rev. 977 (1993)) and Formal Opinion 93-375 of the ABA Standing Committee on Ethics and Professional Responsibility (1993) (analyzing lawyer's duties when representing a client in a bank examination).
88. We recognize that a meeting between an IRS agent and representatives of a charity seeking tax-exempt status would be unlikely to occur in real life, but similar meetings in other regulatory contexts are realistic. Working with a charitable corporation introduces students to trust and fiduciary concepts.
89. The question on the application is "Does or will the organization attempt to influence legislation?" In response, some students have checked No; others have checked Yes but have qualified the answer by stating that the amount of such activity will be insubstantial. Student responses to the questions from the agent are the same no matter how they answered this question on the application. Many students fail to disclose any potential problem. In fact, if students did elect to tell the agent directly about the potential problem or ask for more time, the agent has been instructed to be flexible and to permit rescheduling or other accommodation, depending on the students' requests.
90. This dilemma also brings home to students the notion of entity representation, where client loyalty is owed to the organization rather than the constituents. Model Rules of Professional Conduct Rule 1.13.
91. For example, some say they will make sure that the lobbying does not occur again. Others say they are sure that once board members of the client organization hear about the lobbying, they will put a stop to it, so the application is technically correct. Those who have already disclosed that the client engages in an "insubstantial" amount of lobbying say that they do not yet "know" that the representation is wrong and as soon as they do know they will tell the IRS. See generally Rhode, supra note 5, at 45.
92. See, e.g., ABA Comm. on Professional Ethics and Grievances, Formal Op. 93-375 (1993).
93. We have modified this exercise over time to see if we can alter the pressures. Originally, when we conducted this exercise, all students in each section watched each other. If the first set of students did not disclose the adverse information, they seemed to get away with it because there were no immediate adverse consequences. We thought this made it even more difficult for subsequent teams to make a disclosure. This year we did not give any students a chance to observe another team until after they had completed the interview. The students' responses were much more varied under the second approach. Some students showed great courage asking the agent for time to confer privately with Walter and then speaking up about the problems on the application. Students who did speak up were visibly shaking with the effort and spoke to us later of "sweaty palms" and great anxiety.
94. Student comments on the evaluations support our impressions about the impact of this exercise: "It is one thing to say 'I'll never let a client get away with that' but quite another tobe face to face with a client who wants to do the same thing"; "The course made me realize that I need to be prepared beforehand because I might not react appropriately under pressure."
95. This situation creates interesting conflict-of-interest questions throughout the exercise. The students representing the sellers simultaneously represent the business and the family selling the business. The business is owned by Karen and her two children, Walter and Jane. The consulting agreement is negotiated on behalf of Karen, the mother. The employment agreement is negotiated on behalf of Jane. The larger the compensation negotiated pursuant to these agreements, the less is available for the asset purchase of the business, which amount will be shared by Karen, Walter, and Jane. The students must disclose the potential impact of this situation and obtain consent before they can begin the representation. Later, the employees of the business mount a challenge to the sale because they will be losing their jobs. Karen feels loyalty to the employees, many of whom she has known for years. Her children do not share those feelings. Whatever money is spent appeasing the employees, in severance benefits or retraining, is money not available for the final asset purchase. Again Karen and her children have differing interests in how they wish the negotiations to proceed, and the student attorneys must assist the family in reaching an informed, shared understanding. This exercise highlights the lawyer's role as intermediary. See Model Rules of Professional Conduct Rule 2.2. Attorneys representing the buyers confront former-client conflict-of-interest questions. See Model Rules of Professional Conduct Rule 1.9. In this exercise they leave their former law firm, where the family business was a client, and where they, personally, had represented Karen and Walter individually. Before they can proceed with the new representation, they must decide whether they can represent the buyer in view of their former representations and, if so, how to obtain informed consent. In their letters seeking a written consent from Karen to undertake the new representation, many warrant that they have no confidential information that might be material to the negotiation. We remind them of this representation during the exercise, particularly if they make predictions about how the family might react to various proposals.
96. For example, I have stopped debriefing the students as a group, in favor of private strategy sessions for reflection.
97. Berger, supra note 36, at 71; Spaeth et al., supra note 12, at 164.
98. The realism of this exercise is confirmed in Anita Sharpe, Prenuptial Pacts Shield Businesses from an Heir's Ex, Wall St. J., June 19, 1996, at B1 ("The difficulty of compelling children to sign prenups is among the most frequently mentioned problems at family-business seminars . . . ."). After the exercise, students actually engage in the negotiation of the prenuptial agreement and are asked again whether subsequent developments have resulted in a disabling conflict of interest for the lawyer or if a new consent is necessary. The answer to these questions will be different for different students, depending on how Walter and his fiancée responded, and how the students approached the issue. For example, in some negotiations Anna is adamantly opposed to entering the agreement or really hurt that Walter would make this proposal on the eve of their marriage. Students vary in their willingness to proceed with the representation under those circumstances. Some try to persuade Anna to proceed; others suggest that Karen should be dissuaded from her idea.
99. See, e.g., Model Rules of Professional Conduct Rule 1.7 cmt. 11 ("Conflicts of interest in contexts other than litigation sometimes may be difficult to assess. . . . The question is often one of proximity and degree.").
100. Woodward, supra note 29, at 424.
101. Mitchell et al., supra note 3, at 21.
102. E.g., John J. Costonis, The MacCrate Report: Of Loaves, Fishes, and the Future of American Legal Education, 43 J. Legal Educ. 157 (1993).
103. Randy E. Barnett, Perspectives on Contract Law at xvi-xvii (Boston, 1995); Berger, supra note 36, at 71; A. J. Goldsmith, An Unruly Conjunction? Social Thought and Legal Action in Clinical Legal Education, 43 J. Legal Educ. 415, 423-24 (1993) ; Kenney Hegland, Moral Dilemmas in Teaching Trial Advocacy, 32 J. Legal Educ. 69 (1982); Menkel-Meadow, supra note 3, at 617; Spiegel, supra note 3; Woodhouse, supra note 9, at 1980-86.
104. Randy E. Barnett, Perspectives on Contract Law at xvi-xvii (Boston, 1995); Berger, supra note 36, at 71; A. J. Goldsmith, An Unruly Conjunction? Social Thought and Legal Action in Clinical Legal Education, 43 J. Legal Educ. 415, 423-24 (1993) ; Kenney Hegland, Moral Dilemmas in Teaching Trial Advocacy, 32 J. Legal Educ. 69 (1982); Menkel-Meadow, supra note 3, at 617; Spiegel, supra note 3; Woodhouse, supra note 9, at 1980-86.
105. Randy E. Barnett, Perspectives on Contract Law at xvi-xvii (Boston, 1995); Berger, supra note 36, at 71; A. J. Goldsmith, An Unruly Conjunction? Social Thought and Legal Action in Clinical Legal Education, 43 J. Legal Educ. 415, 423-24 (1993) ; Kenney Hegland, Moral Dilemmas in Teaching Trial Advocacy, 32 J. Legal Educ. 69 (1982); Menkel-Meadow, supra note 3, at 617; Spiegel, supra note 3; Woodhouse, supra note 9, at 1980-86.
106. Client statements are furnished to the teaching assistante who play client roles, but the statements are not scripts.
107. See, e.g., In re Snide, 418 N.E.2d 656 (N.Y. 1981).
108. Model Rules of Professional Conduct Rules 1.1 (competence), 1.4 (communication), 1.14 (client under a disability).