Oil and Water: How Legal Education’s Doctrine and Skills Divide Reproduces Toxic Hierarchies

Abstract

INTRODUCTION The longstanding categorical distinction that elevates doctrinal teaching over skills teaching (1) continues to harm the profession of law. In this Article, I consider two distinct effects produced by the doctrine/ski 11s dichotomy. First, the dichotomy is responsible for reinforcing class, gender, and race segmentation in legal education, which limits the quality of instruction that law schools can provide and abets the reproduction of existing power relations in the legal profession and society at large. Second, the antipodal positioning of doctrine and theory over skills and practice harms law schools' ability to prepare a new generation of law students to engage in both critical lawyering and law reform. As American society becomes increasingly unequal and as its criminal justice system barrels well past the breaking point, we desperately need the next generation of law students to participate in a new era of structural law reform. But unlike the last major era of reform in the United States (the Progressive Era), where ill-conceived top-down solutions were theorized and implemented by a small subset of elite lawyers, this time, reform should emerge from a coalition of lawyers hailing from all law schools and all levels of society. Even in legal education's current situation, with tenure for law professors on the chopping block due to declining student enrollment and legal employment prospects, law schools should commit to collapsing the false binary between doctrine and skills. In this Article, I will first describe the disparate treatment and conditions that make the skills professorate the professorate. I will then explain how the dichotomy (1) reinforces harmful race, class, and gender hierarchies in the legal academy and (2) produces an elitist knowledge hierarchy that prevents students from obtaining a holistic legal education. Finally, I will argue that bridging the skills/doctrine divide is necessary to prepare all law graduates to participate in civics-based law reform. I. The Other Professorate As so many authors have pointed out before, legal skills teachers are treated as second-class citizens, receiving lower pay, fewer faculty governance rights, and lesser titles than teachers hired on the tenure-track to teach doctrinal courses. (2) Legal skills teachers are something other (or less) than tenured or tenure-track doctrinal professors in the overwhelming majority of American law schools. (3) A legal skills teacher is often physically separated from his/her doctrinal colleagues, occupying offices in a law clinic's basement or a windowless office in some far-flung wing of a school's faculty suite. (4) Skills teaching is often perceived as unrewarding donkey work, with a teacher's time better spent researching and writing scholarly articles or preparing for a doctrinal class. (5) When we think of the professional identity of a law professor, the dominant conception of the law professor is the heroic doctrinal professor, an identity that excludes skills teaching. (6) The skills/doctrine binary first began to appear in American legal education around the time that Langdell's casebook method took hold. Langdell and the professors who adopted his casebook method used appellate opinions in conjunction with incisive questioning of a few students in the class to produce dialogue designed to help students think like lawyers. The casebook method caught on so quickly in part because of its efficiency--it allowed one professor to reach large numbers of students. (7) Rather than the passive lecture method, Langdell's method was interactive and, surprisingly, skills focused. (8) A little known fact is that Landgell himself remained committed to teaching skills to law students in an intensive way; in his civil procedure course, his students drafted pleadings and argued in simulated court hearings held every week. (9) Thus, the skills/doctrine divide did not initially appear with Langdell and his casebook method. …