Is the Blush off the Rose? Legal Education Metaphors in a Changing World

Publication Date01 March 2016
AuthorMichelle LeBaron
Date01 March 2016
ISSN: 0263-323X, pp. 144±65
Is the Blush off the Rose? Legal Education Metaphors in a
Changing World
Michelle LeBaron*
Seismic shifts in legal practice associated with globalization, rapid
technological and economic change, and shifting client expectations
have yet to spur concomitant changes in legal education. While
governing bodies and scholars study trends, pressures, and shrinking
markets, legal educators in many countries have resisted effective
curricular, pedagogical, and programmatic changes. Positing meta-
phors as powerful cues about the effectiveness of reform efforts, I use
examples from conflict analysis to illustrate how so-called `unmarked'
metaphors are often more powerful than marked ones. Exploring
metaphors used by scholars and professional bodies in advocating
reform, I scan linkages between proposed metaphors and change,
highlighting metaphors in the American Carnegie report as par-
ticularly generative. While crisis metaphors have increased in use, they
do not seem to have stimulated significant changes. I suggest this may
be because of powerful unmarked metaphors. The article concludes
with recommendations on discursive and dialogic ways of guiding
legal education reform.
`The future is a foreign country', writes Graham Ferris about the
impossibility of relying on traditional legal education practices.
metaphor launches us into an unfamiliar world where old maps don't work
and previously reliable practices must be re-examined. We face transforming
contexts where shifting conditions, complexities, and the increasing velocity
*Peter A. Allard School of Law, University of British Columbia, Vancouver
V6T 1Z1, British Columbia, Canada
The author acknowledges with thanks the able research and editing assistance of Ashli
Akins, Carrie MacLeod, Tannis Baradziej, and Yael Efron.
1 G. Ferris, `The Legal Educational Continuum that is Visible through a Glass Dewey'
(2009) 43 Law Teacher 102, at 102.
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of change put pressure on already-stretched systems. Technology has made
globalization a fact of life, generating the need for adaptation and resilience.
The legal world is no exception; indeed, given that law is a service industry
intimately intertwined with economy, policy, and social relations, it may be
more vulnerable than other professions.
Law as a discipline has undergone significant change in the recent past as
scholars, practitioners, and educators strive to stay current.
New areas
within legal studies have emerged; the field of critical legal studies has
underlined social justice concerns and the imperative of interdisciplinary
scholarship has grown. Empirical perspectives, once minimized in import-
ance, have become far more salient as DNA and neuroscientific findings
offer new avenues of proof. Technology has affected virtually every aspect
of legal practice from initial communication to resolution, as did the global
financial crisis that dramatically changed corporate legal practice in the
United States and elsewhere. Systems theory has spawned new ways of
thinking about social and organizational dynamics, including legal issues in
their interrelation with social dynamics. Lawyers of the future will enter an
increasingly competitive world requiring expert competencies to navigate
mounting complexity. Legal education must change dramatically to meet
these challenges; it cannot remain what has become a traditional course in
Canada and the United States.
Law students themselves have changed substantially in the twenty-first
century. Incoming class numbers in the United States have fallen dramatic-
ally, while those in other countries have remained steady or experienced
smaller declines amidst the Bologna reforms in the EU and significant shifts
in Asia-Pacific legal education.
Increased gender, social class, ethnic, and
national differences characterize incoming classes.
With diversity has come
a widening aperture of reasons to study law, and also an increased emphasis
on vocational needs and away from liberal or critical thinking.
bring `instant gratification' expectations that, along with multiple competing
time demands, lead them to seek efficient ways of studying and evaluation-
2 C. Menkel-Meadow, `Megatrends in Law' (2006), at
3 M. Nisen, `US Students are fleeing Law Schools and Pouring into Engineering'
(2015), at . See, also, D.
Hasselback, `Fewer Students Apply to Law School this Year' Financial Post, 12
February 2013, at
to-law-school-this-year>; H.M. Kritzer, `It's the Law Schools Stupid! Explaining the
Continuing Increase in the Number of Lawyers' (2013) 19 International J. of the
Legal Profession 209, at ; S.P.
Sarker (ed.), Legal Education in Asia (2014).
4 A. Bone, `The Twenty-first Century Law Student' (2009) 43 Law Teacher 222, at
222, 224±6.
5 A. Kronman, Education's End: Why Our Colleges and Universities have given up on
the Meaning of Life (2007).
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relevant material. They tend to multitask and look to technology to support
their learning needs.
Law schools cannot reach these students by doing
things the way they have always been done.
How can legal education prepare students to live in the foreign country of
the future, when emerging conditions cannot be anticipated easily from our
present vantage point? I explore this question by examining metaphors as
discursive frames, considering their potency that is often beneath conscious
awareness. Then, I offer an approach to metaphor analysis, illustrating the
usefulness of peering beneath the surface of ubiquitous associations. From
this foundation, I survey the current landscape of American and other writing
about legal education reform, exploring which metaphors or spheres of
understanding shape and reflect this discourse at present. I then examine an
alternative metaphor for legal education and explore how imaginative dis-
cursive choices could catalyse substantive shifts. Finally, I argue that
dialogic engagement amongst stakeholders in legal education is needed,
along with thoughtful metaphor choices to shape reform efforts.
Metaphors are sensory images that relate one world of things or ideas to
another. Because they resonate with sound, visual imagery, and sensations,
they are more likely to lodge in consciousness and physical felt/sensed
awareness than more abstract vocabulary. Metaphors are rich in information;
they are tightly wrapped buds that convey textures of perceptions, experi-
ence, emotional tenor and intensity. Not only are they powerful in reflecting
attitudes and understandings, they are also influential in shaping and framing
them. They give a window into whole worlds of understandings, reflecting
and shaping ontology, epistemology, and theories of change. They also yield
clues about how people see themselves and situations, revealing perceptions,
assumptions, and blind spots. Metaphors are a hidden grammar of being,
subtly framing what is possible and impossible, what is likely and far-
fetched. They interweave with agency, analysis, and ethics. Without aware-
ness of the pervasive shaping power of metaphors, we see through a glass
Once a metaphor has been identified, we can inquire into its pervasive
effects, all the more potent when out of conscious awareness. Lakoff and
Johnson write about the significance of marked and unmarked metaphors.
Marked metaphors are explicitly named, as in `law is a blunt instrument'.
6 G. Joughin, `Assessment, Learning and Judgement in Higher Education: A Critical
Review' in Assessment, Learning and Judgment in Higher Education, ed. G. Joughin
(2009) 13, at .
7 G. Lakoff and M. Johnson, Metaphors We Live By (2003, 2nd edn.).
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The more unusual or novel a metaphor is, the more likely it is to be noticed,
that is, marked. Unm arked metaphors are those that we no longe r
consciously recognize because they have become conventional or idiomatic.
The term `bear market' no longer conjures a literal bear, for example. Nor do
we think of the term `bullets' connoting point form in writing as connected
to ammunition. Notice these phrases in common use in relation to peace:
It was a hard-won peace.
Neither side would allow the other to score points at their expense, so the
treaty was elusive.
Their demands were part of a dangerous game.
Which discursive worlds are invoked in the above statements? All three of
these `opening salvos' come from war or games and are frequently encoun-
tered in popular accounts. These unmarked metaphors, replete with imagery
of attack and aggression, prime readers for opposition, resistance, and
struggle, if not utter decimation. Writers who use war or games metaphors in
relation to peace are framing it as necessarily interwoven with battle or
contest and related adversarial processes and outcomes. Sleeping within
written accounts, these unmarked metaphors shape understandings of reality,
suggesting that if conflict is war or ritualized battle (games), peace is a part
of the same discursive field. As unquestioned parts of our lexicon, war and
game metaphors function as self-fulfilling prophecies. Whether stated
explicitly or not, they have become so ubiquitous that they blend into
language and are not ordinarily questioned. But these unmarked metaphors
limit the scope and possibilities of peace. What might gardening, geographic
or climatic metaphors have to contribute as alternatives? Lakoff and Johnson
observe that journey metaphors are more generative than war metaphors in
relation to conflict because the former signal mutuality, forward momentum
toward a desired endpoint, pleasure, and aesthetic appreciation.
Metaphors, then, powerfully influence how we pay attention, shaping a
range of perceptual choices about situations and the people in them, as well
as possible actions and outcomes. Ubiquitous and often unquestioned, they
are part of nearly every verbal or written exchange including scholarly
papers, all the more powerful for their frequently cloaked nature. Before
examining metaphors in American writing about legal education reform, I
offer thoughts on how to analyse and work with metaphors.
Metaphors carry a wide range of discursive influences. Like a picture frame,
they direct attention inside their borders. Metaphors communicate what is
important, inviting the viewer within and simultaneously turning her atten-
tion away from what is outside the frame. Thus, surrounding context and
other associations are muted as a subject is paired with something disparate
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for purposes of communicating aspects of the subject's essence. When this is
done through unmarked metaphors, it may go completely unnoticed, yet it
can still have a profound influence. Examples from conflict engagement are
illustrative. If a writer successfully pairs a particular conflict with battle
imagery, it is likely to influence readers to see the conflict as dangerous. The
reader may similarly expect combative tactics to be used and be less attuned
to collaborative potentialities than to eventual winners and losers. Given its
framing role, metaphor's potency is apparent; effective negotiators know
that they need to suggest alternative metaphors to foster change. To leave
unmarked framing metaphors like war and battle undisturbed and unnamed
is to invite conflict escalation; we know from complex systems theory that
the course of interactions is very strongly influenced by initial conditions.
One of the functions of metaphors that become more apparent when
studied is their capacity to continually shape communication. Thus, not only
do metaphors frame narratives initially, their potency increases over time.
When a conflict is framed using war imagery, parties tend to use words that
come from the same discursive menu of battle, strategy, and weaponry.
Thus, the embedded association becomes reified. Alternative frames may be
offered and ± when accepted ± can reveal whole ranges of nuanced and
different possibilities. In a deliberate choice of metaphor, my latest book is
titled The Choreography of Resolution.
Invoking dance as a way of thinking
about and engaging conflict draws attention to rhythm, physical ways of
expressing and navigating difference, somatic sensations associated with
emotions, stress, and intuition, and aesthetic dimensions of relations. It also
implicitly takes combative ima ges out of the frame, replacing thei r
ubiquitous presence with an alternative expressive language.
Dancers with whom we collaborated spoke about conflict using tactile
imagery and developed physical exercises to reveal patterns of engagement
and choice points in conflict. For example, mediators in training learned to
move across a floor with attention to being everywhere their counterpart was
not. Given that parties in conflict are frequently vying for the same terrain or
scarce resources, physical experiences of spaciousness, complementarity,
and sensitivity to others' movements gave learners constructive sensory
anchors for working with actual conflicts. Dance literally became a moving
metaphor, a vehicle for learning how to uncover possibilities for common
understandings from different vantage points.
One of the things revealed when working on dance and conflict was the
importance of negative space. In the West, we tend to fill up space, over-
relying on words to convey meanings. Mediators use talk to convene,
structure, order and identify issues, and uncover common ground. Designer
Alan Fletcher explores why space is important. He writes:
8 M. LeBaron et al., The Choreography of Resolution: Conflict, Movement and
Neuroscience (2013).
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Space is substance. CeÂzanne painted and modelled space. Giacometti sculpted
by `taking the fat off space'. Mallarme conceived poems with absences as well
as words. Ralph Richardson asserted that acting lay in pauses . .. Isaac Stern
described music as `that little bit between each note ± silences which give the
form.' The Japanese have a word (ma) for this interval which gives shape to
the whole. In the West we have neither word nor term. A serious omission.
Metaphor analysis involves excavating language for unmarked and
marked images; it is literally to look for what inhabits the space between an
idea and the metaphors associated with it. It can reveal unnoticed similari-
ties, important divergences, and collaborative possibilities. It can also reveal
power dynamics ± very important both in conflict engagement and in
relation to legal education reform, as we will see. For example, in a multi-
party conflict over a forested watershed, industry, government, labour, and
local community representatives shared a farming metaphor for the forest,
though it was never announced or negotiated. Thus, it seemed natural to
them to talk of seeding, harvesting, eliminating weed species, and replanting.
The conservation representative at the table was the only stakeholder who
did not share this discursive frame, and thus faced an extra hurdle to
effective participation. Imagine what would have happened if the conserva-
tionist had suggested an alternative metaphor: the forest as the hair of mother
earth. All heads at the table would have turned in the conservationist's
direction. Why? Because she would have used a marked metaphor in stark
contrast to the unmarked metaphor shared by many powerful representatives.
In this negotiation, the unmarked metaphor was unchallenged by parties
including the conservationist for whom it was dissonant, because it was not
explicit and therefore not offered as negotiable. Perceiving this barrier to
effective participation, the mediator might have asked questions about the
diverse ways people at the table perceive the forest. By not doing so, she risked
unconsciously aligning with an unmarked metaphor, imperilling the impar-
tiality of the process as well as full and meaningful participation of all parties.
For effective engagement, metaphors to bridge different discursive
terrains are needed. Understanding this, a mediator could pose a question
at the outset, such as: `What can we do to invite a range of views about the
nature of the forest and human relations to it in our conversations?' All
parties in the conversation might be able to find a common or shared frame
about the forest. For example, they might agree on seeing the forest as a
garden. While different people may have various associations with the word
garden ± from a wild, untended country area outside a cottage to a
manicured, heavily-managed urban plot ± the ambiguity within the metaphor
`garden' may be helpful. Its very spaciousness may give parties a sense of a
shared frame. When people have even a thin experience of commonality,
they engage with less defensiveness and more openness to possibility. When
they sense little or no common starting points, discussions are much harder
9 A. Fletcher, The Art of Looking Sideways (2001) 370.
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to engage and advance. Metaphor analysis, then, means paying attention to
the discursive grammar of underlying conversations. Listening closely to
language choices allows the analyst to uncover unmarked metaphors that
may otherwise operate in hegemonic ways. Hidden in plain sight, a whole
world of possibilities follow once a common metaphoric frame is agreed.
This is true not only in conflict engagement, but in human communication in
general. Families who hold similar metaphors about relationships, hierarchy,
communication of love and respect, and appropriate intergenerational
behaviour are more likely to experience harmonious relations. A community
who shares common metaphors for progress, development, and social justice
will have an easier time making decisions about new projects than one in
which widely divergent images operate. Metaphor analysis goes hand-in-
hand with dialogue to uncover shared images; when parties listen deeply to
each other, communication effectiveness improves.
Of course, in many contentious situations, metaphoric frames are starkly
different and finding shared terrain is challenging. Common metaphors may
surface through listening for unmarked metaphors in stories. Dialogue, a
mutual exchange centred on metaphor-rich narratives, is thus a helpful path
to uncovering commonality. Later in this article, I examine how dialogue
might be useful in assisting with the design of needed curricular and
pedagogical change in legal education. I also consider commonly-used
metaphors for legal education reform and why they may have aroused
defensive resistance to change.
In the next section, I explore metaphors about legal education to see what
discursive possibilities are embedded within them.
A literature survey yields wide-ranging metaphors about legal education and
practice, almost all of them situated in dire predictions about lawyering or
major reform campaigns. Diverse global commissions, studies, task forces,
and conventions have made the case for change.
In Europe, the Bologna
Convention calls for extensive overhaul of legal education.
East Asia,
notably Japan and Korea, have both undergone substantial shifts in their
philosophy and practice in the past several years. The United States and
Canada have had parades of reports from national bar associations and
special task forces.
Given myriad materials, I primarily trace reform-
associated metaphors in the United States, with some re ferences to
10 T.M. Fine, `Reflections on U.S. Law Curricular Reform' (2009) 10 German Law J.
(Special Issue: Transnationalizing Legal Education) 717.
11 Bologna Declaration of 19 June 1999, see
bologna/bologna_en.html> and .
12 Fine, op. cit., n. 10, p. 717.
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Australian, Canadian, and British scholars. Later, I discuss applications of
this exploration to the United States and Canadian contexts in particular.
T.M. Fine summarizes some of the major work done in the United States
between 1979 and 2007. The Cramton report arrived first during this period,
commissioned by the American Bar Association (ABA).
This report was
heralded as a `watershed' in thinking about legal education, and recom-
mended changes to curricula to shift the accent onto critical thinking and
problem solving. Little major change followed, notwithstanding the use of
the watershed metaphor.
Resistance to change might be expected from a legal profession that has
traditionally valued stability and resisted rapid change. When the rule of law
is metaphorically described as the backbone of social and economic
prosperity, associations are not easily altered,
nor is the education of those
whose job it is to uphold legal institutions. When proponents of critical legal
studies and other movements have pushed for more social justice perspec-
tives and skills training in legal education, they have run into powerful
opposition. For example, following the release of the Cramton report, the
ABA added requirements for all schools to offer rigorous training in legal
writing, and instruction in professional skills like counselling, negotiation,
advocacy, and drafting in order to maintain accreditation. Some schools
embraced the idea, but the Dean of Harvard Law at the time, Albert M.
Sacks, employed a powerfully trivializing metaphor when he wrote, `One is
tempted to treat the new proposal as a flyspeck to be ignored . .. I hope it will
be strongly resisted.' It was.
The same body commissioned the MacCrate report over a decade later.
Responding to critiques that legal education did too little to prepare lawyers
for practice, the report's authors focused on skills and clinical competencies.
They wrote:
Surprisingly, throughout the course of extensive, decades-long debates about
what law schools should do to educate students for the practice of law, there
has been no in-depth study of the full range of skills and values that are
necessary in order for a lawyer to assume the professional responsibility of
handling a legal matter.
13 American Bar Association (ABA) Section of Legal Education and Admissions to the
Bar, Report and Recommendations of the Task Force on Lawyer Competency: The
Role of Law Schools (1979) (Cramton report).
14 D. Doyle, `Rule of Law: The Backbone of Economic Growth' (2014), at>.
15 R.B. Stevens, Law School: Legal Education in America from the 1850s to the 1980s
(1983) 257.
16 ABA Section of Legal Education and Admissions to the Bar, Legal Education and
Professional Development ± An Educational Continuum: Report of the Task Force on
Law Schools and the Profession: Narrowing the Gap (1992) (MacCrate report), at
17 id.
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The report's authors draw on the metaphor of the `gap' that is featured in its
title, concluding that it is not possible to narrow the distance between
practising lawyers and the legal academy without `first identifying the
fundamental skills and values' needed by every lawyer.
They go on to list
ten `fundamental lawyering skills' needed for competent representation.
Taking their cue from the earlier Cramton report and going even further, they
include the followin g as essential: probl em solving, communic ation,
counselling, negotiation, litigation, alternative dispute resolution, and a
range of legal analytical, ethical problem-solving, and research skills. More
than its predecessor, the MacCrate report stimulated extensive discussion
amongst legal academics, the bar, and the bench. While it is sometimes
credited with catalysing an increase in clinical law school courses, the
identified gap between the profession and the academy remained.
In 2009, the Carnegie report was issued. This report was one of a series of
in-depth looks into curriculum and pedagogy in education for professionals
in the United States, and featured five key observations. The Carnegie report
draws on markedly different metaphors from those of the ABA, and will be
discussed in more detail below. More recently, in 2014, the ABA Task Force
on Legal Education again issued a scathing report on legal education.
report's authors opined that it was necessary to rush their work and hasten
publication because of `the urgency of the problem and the serious threats to
public confidence [that] demanded rapid action.'
In the report itself and in
explaining its early release, the ABA Task Force drew on metaphors of crisis
and precipitous risks of falling and failure. The arc from the Cramton report
through the MacCrate report culminates in the use of even more emergency-
based metaphors in the 2014 report. Was the same arc evident in what
American legal scholars were writing on the subject over the previous thirty
1. Gluts, curses, and journey metaphors
In discussing challenges facing American legal educators in 1987, Pye refers
to the excess of lawyers being trained as the `lawyer glut'.
Jerry, writing
five years later, situates his comments in a journey frame quoting Robert F.
18 id.
19 id.
20 ABA, Report and Recommendations: American Bar Association Task Force on the
Future of Legal Education (2014), at
adminis trative /profes sional _respon sibilit y/repor t_and_r ecomme ndation s_of_ab a_
21 E. Chemerinsky and C. Menkel-Meadow, `Don't Skimp on Legal Training' New York
Times, 14 April 2014.
22 A.K. Pye, Legal Education in an Era of Change: The Challenge (1987) 202.
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Just because we cannot see clearly the end of the road, that is no reason for not
setting out on the essential journey. On the contrary, great change dominates
the world, and unless we move with change we will become its victims.
While initially using Kennedy's journey image to argue that the legal
profession and professoriate have actually exacerbated challenges facing
them rather than ameliorating them, Jerry later devolves into combative
metaphors claiming `assaults' on the profession arising from the `rich vein'
of public resentment that has undermined broad support for lawyers.
In a more recent piece, University of Hawai'i scholar Matsuda argues for
fundamental changes to legal education.
In writing full of marked meta-
phors, Matsuda echoes Jerry in assigning blame for the current crisis to
lawyers themselves, not `an Old Testament curse'.
She suggests that legal
education move away from mechanical instructions, for example, how to
take a deposition, and reclaim the terrain of social sciences and liberal arts as
the best preparation for practice. Future lawyers will need understandings of
philosophy, history, economics, and politics more than any technical
training, to be able to embrace roles. Thus, a central function of legal
education is to help students understand social contexts to inform and anchor
leadership roles. Matsuda's work fits well with the Carnegie report, to be
explored later.
2. Nature and climate metaphors
Interestingly, authors from outside the United States have used metaphors
from nature to make points about legal education. Watson begins her work
with a Dylan poem:
Come gather 'round people
Wherever you roam
And admit that the waters
Around you have grown
And accept it that soon
You'll be drenched to the bone
If your time to you
Is worth savin'
Then you better start swimmin'
Or you'll sink like a stone
For the times they are a-changin'.
23 R.H. Jerry, `The Legal Profession, Legal Education and Change' (1992) 41 University
of Kansas Law Rev. 1.
24 M.J. Matsuda, `Admit that the Waters Around you have Grown: Change and Legal
Education' (2014) 89 Indiana Law J. 1381.
25 id., p. 1399.
P. Watson, Leading Change in Legal Education: Interesting Ideas for Interesting Times
(2012), quoting song by Bob Dylan, `The Times They Are A-Changin' (1963), at
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Advocating for broad curricular and cultural change in Australian legal
education, Watson emphasizes the importance of awareness about beliefs and
attitudes and how these make change more or less possible. She writes that
legal educators can choose to see mounting pressures as a `curse' or an
impetus to `harness our creative energy'.
Interestingly, Watson uses explicit
metaphors from environmental law to illustrate that legal education is
embedded in an organic and dynamic process of renewal. This device gives
her work a positive cast and leaves readers with a modicum of encouragement
about future prospects even in the midst of large-scale change.
Climate metaphors are employed by James O'Connell to describe the
changing roles of paralegals in the legal landscape.
For lawyers to continue
their historic indifference to the roles of paralegals, he contends, is a form of
egregious denial leading to the same kind of disastrous end as denying
climate change. Citing the work of the United Kingdom Institute for Para-
legals, he urges legal educators to see paralegals as legitimate providers of
legal services, and to coordinate and collaborate in changing existing
hierarchies. Interestingly, he uses the metaphor of midwifery to argue that
the Institute for Paralegals and law schools should work together as `mid-
wives' to bridge current gaps between academically trained law graduates
and vocationally trained paralegals.
Casting reform efforts in terms of
midwifery pairs a marked gendered image with legal training and practice.
Given the many unmarked masculine metaphors that pervade Western legal
education discourses, O'Connell's choice of a marked feminine metaphor is
a clear challenge to traditional ways of thinking about navigating change.
3. Metaphors of revolution, crisis, and vanishing lawyers
American scholar Kevin Lee, in a comprehensiv e work arguing for
humanistic legal education, summarizes the work of a number of writers
with dire future predictions including fellow Americans Campos and Katz,
and British scholar Susskind.
Acknowledging that legal education is in
27 id., p. 200.
28 J. O'Connell, `Climate Change: It's happening in the legal profession too' (2008) 42
Law Teacher 219.
29 id., pp. 222±3.
30 See D.M. Kolb, `Negotiations through a Gender Lens', Center for Gender Relations
Working Paper 15 (2002) 31.
31 K.P. Lee, `The Citizen Lawyer in the Coming Era: Technology is Changing the
Practice of Law, but Legal Education Must Remain Committed to Humanistic
Learning' (2013) 40 Ohio Northern University Law Rev. 1. See R. Susskind,
Tomorrow's Lawyer: An Introduction To Your Future (2013); P. Campos, Don't Go
to School (Unless): A Law Professor's Inside Guide to Maximizing Opportunity and
Minimizing Risk (2012); D.M. Katz, `Quantitative Legal Prediction ± or ± How I
Learned to Stop Worrying and Start Preparing for the Data Driven Future of the Legal
Services Industry' (2013) 62 Emory Law J. 909.
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crisis, he relates `changes on the horizon'
to rapid technological advances
which he describes using images of revolution. Concluding that `the middle-
class lawyer is vanishing',
Lee argues that legal practice in the future will
be `more like engineering than statesmanship'.
Yet, rather than suggesting
a shift to engineering-like e ducation as appropriate, he foreshadows
Matsuda's work, emphasizing humanistic learning in law school to shape
lawyers who can function as `artisans of democratic citizenship'.
Lee ends
his article by invoking Plato's work, The Statesman, to underline his thesis.
Ward and Zahorsky, discussing needed changes in the ABA Journal,
invoke the language of rebellion and revolution.
Showing how legal inno-
vators are doing things differently, they argue that creativity in education and
practice is needed to find new ways of responding to client needs. While
their metaphors are evocative and powerful, rebellion and revolution connote
violent upheaval ± not the most generative way to invite colleagues into
contemplating change. Legal educators, like the profession of law itself,
have shown themselves resistant to revolution.
In Failing Law Schools, Brian Tamanaha continues the trend of dire
predictions. Looking at the situation faced by United States law students
today including `crushing debt-loads' and disappearing jobs, he draws a
number of conclusions including the necessity of reducing law school to two
years and abolishing tenure.
Predictably, many scholars have been critical
of his work, with one terming the book a `misguided missile'.
Michael Olivas decries the way Tamanaha `lays this dire assessment at the
feet of the requisite ABA accreditation process', which he feels forces law
schools to meet higher (and more expensive) standards.
Scholar Richard
Lempert uses a telling metaphor in his critique of the book, opining that
Tamanaha's `suggestion that legal education be reduced to two years to cut
costs puts the cost horse before the educational cart and has little to
commend it.'
Only a few voices deviate from those predicting a plummet off a steep
cliff for legal education if massive change is not initiated. In a recent New
32 Lee, id., p. 6.
33 id., p. 14.
34 id., p. 6.
35 id.
36 id. See Plato, Statesman, trs. E. Brann et al. (2012).
37 S.F. Ward and R.M. Zahorsky, `Legal Rebels: Remaking the Profession' (2009) 95
ABA J. 35.
38 B. Tamanaha, Failing Law Schools (2012) 22.
39 P. Schrag, `Failing Law Schools ± Brian Tamanaha's Misguided Missile' (2013) 26
Georgetown J. of Legal Ethics 387, at 388.
40 M.A. Olivas, `Failing Law Schools by Brian Z. Tamanaha (review)' (2013) 84 J. of
Higher Education 739, at 739.
41 R.O. Lempert, `Failing Law Schools by Brian Z. Tamanaha: A Review' (2014) 43
Contemporary Sociology 269.
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York Times op-ed, Americans Chemerinsky and Menkel-Meadow revisit the
`crisis' motif, arguing that claims of dire straits are exaggerated and
They submit that claims of imminent catastrophe always focus
on three things: a tight job market, waning law school applications, and the
increasing cost of legal education. Presenting data that contradicts crises in
each of these areas, they maintain that the negative potency of the crisis
metaphor may lead to reforms that will do more harm than good. They
worry, for example, about President Obama adopting Tamanha's suggestion
and suggesting that law school be reduced from three to two years. In their
words, `this is a terrible idea.'
Chemerinsky and Menkel-Meadow assert that the profession needs to
train lawyers who are better prepared to practice law, not less well trained.
They recommend following the lead of other professional schools including
architecture, business, and planning where increased emphasis has been put
on leadership, corporate governance, negotiation, and finance skills. Further,
they suggest a wider range of problem-based courses be taught to prepare
students for dealing with the challenges of our time.
Their op-ed attracted many dissenting voices, including a piece the
following day in the Washington Post from George Washington University
Professor, Orin Kerr.
Dismissing their `very sunny perspective', Kerr
argues in favour of reduced law degree duration and major curricular change.
He counters the wider range of courses suggested, indicating that these are
already offered in many schools and emphasizing the need for legal training
to prepare students practically for their careers.
Without treating the validity of these rival claims, Chemerinsky and
Menkel-Meadow's concern about the crisis metaphor itself is significant. In a
crisis, there is little time to make thoughtful, reasoned decisions that take a
range of interests into account. Crises are moments to take quick and decisive
action, even though these actions will almost certainly lead to unintended and
unforeseen consequences. Chemerinsky and Menkel-Meadow point out that
the rush of the ABA Task Force on Legal Education to release its report early
(in January 2014), attributed as it was to serious and imminent threats to the
profession, lent an air of catastrophe to their work. This crisis tone is
surprising, given decades of similar criticism about legal education. Whether
it is justified by the rapid rate of change in legal practice and the changing
marketplace affecting both legal services and education remains to be seen.
The crisis metaphor, however, is troubling for the associations it brings into
the conversation, and may not foster the change desired.
Our earlier discussion about metaphors for mediation and problem solving
helps to illustrate the perils of crisis and revolution metaphors. Sometimes, a
42 Chemerinsky and Menkel-Meadow, op. cit., n. 21.
43 id.
44 O. Kerr, `Chemerinsky and Menkel-Meadow on Curricular Reform' Washington
Post, 15 April 2014.
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firefighter image is helpful to inform conflict intervention: quick action may
be needed to avoid a calamity. More often, the immediate action of the
adrenalin-fuelled firefighter metaphor may be counterproductive. Many
issues require the patience of a gardener coupled with the practical
intelligence of a chef to achieve lasting resolution. In relation to legal
education, a spectrum of consciously chosen metaphors as well as effective
processes for decision making may similarly be needed to foster necessary
Looking beneath the surface of the varied metaphors described above, it is
reasonable to ask whether there are unmarked metaphors shaping resistance
to change that remain more powerful than efforts to dislodge them. Law and
legal practice associated with core professional values have long garnered
considerable social power. Prominent amongst these values are independ-
ence, confidentiality, and integrity.
These and other values buttress legal
monopolies (including legal education) currently under challenge in many
areas of the world. It may be that the very independence that defines
lawyers' and tenured professors' identities, combined with vocational
security, reinforce a complacence that is difficult to unsettle. The story of
the metaphors chronicled above is also a story of disconnected discourses,
intractab le relatio ns, and decis ion-makin g structure s that have b een
ineffective in responding to rapid change. If it is not also to be a story of
a sleeping giant who awakes to find himself sidelined, a different approach
to legal education reform is needed.
What should this different approach entail? Proactive national dialogues
in both Canada and the United States amongst those with the power to
change legal curricula and pedagogy and those with an interest in how it is
changed, are essential.
If the profession is to be transformed, legal
education must be transformed too. A chorus of law deans, scholars, and
other stakeholders suggest that legal practice and education needs to accent
problem solving and feature higher-quality, more experiential teaching. As
Calgary Law Dean Holloway points out, `law school is hard because we keep
shovelling stuff at our students', yet equating volume with rigour is not a
sound way forward.
The Carnegie report offers a useful suite of metaphors
to guide this change.
45 J. Goldsmith, `The Core Values of the Legal Profession for Lawyers Today and
Tomorrow' (2008) 28 Northwestern J. of International Law & Business 441, at 451.
46 Canadian Bar Association Legal Futures Initiati ve, August 2014, at ://>.
47 H. Gardiner, `Time for Law Schools to Rethink Teaching Law' Canadian Lawyering
Magazine, October 2013, at
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4. The three apprenticeship metaphor
The Carnegie report on legal education reform reaches into the past for its
The metaphors used by the report's authors contrast markedly
with many of those discussed above. They expound on `the three apprentice-
ships of professional education': intellectual, expert practice, and identity
and purpose.
By situating their discussion within an apprenticeship frame,
they point to shared terrain across law, medicine, divinity, and engineering
education in connection with contemporary learning theory. Apprenticeship
as a metaphor suggests the imperative of preparing students for the complex
demands of professional work with its analytic, skill-based, and judgement
dimensions. It also evokes a sense of dawning identification with a profes-
sion and others with whom it is shared, bringing identity and purpose into a
conversation that is often more technical than human.
The apprenticeship frame also orients readers to the powerful effect of
unmarked or hidden messages within legal curricula. Shining a light on the tacit
socialization that operates below clear awareness, the Carnegie report authors
advocate redesigning the legal curriculum in ways that align change with the
qualities, competencies, and social relations important for future lawyers.
Observing the corrosive effect of public assaults on the `guild-like structures of
esoteric knowledge' that characterize professions, the authors argue that it is
essential that the formative dimension of professionalism be rekindled.
apprenticeship metaphor serves well to raise the diffuse question of how legal
education can provide a `powerful experience of the best sense of what it means
to take up a profession.'
This metaphor is expansive enough, yet also precise
enough, to foster discussion of the importance of moral and ethical development
of professionals, developm ent that `requires a holistic app roach to the
educational experience that can grasp its formative effects as a whole.'
Legal education, if it is to respond successfully to vast changes in the
world, must engage these three dimensions. If law schools across the
Western world were to do so, their attempts at reform could surmount the
tinkering and bickering that often attends such efforts, and begin to grapple
more seriously with needed fundamental change. The apprenticeship frame
may also be useful in places like Japan where reform efforts are running into
serious challenges, though recent wholesale changes to legal education there
have also created a host of different issues to those faced in the West.
48 W.M. Sullivan et al., Educating Lawyers: Preparation for the Profession of Law
(2007) (Carnegie report).
49 id., pp. 27±8.
50 id., p. 29.
51 id.
52 id., p. 30.
53 id., p. 31.
54 S. Matsui, `Turbulence Ahead: The Future of Law Schools in Japan' (2012) 62 J. of
Legal Education 3.
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Surely, the three dimensions of intellectual learning, expert practice, and
identity development have resonance for the globalizing world where there is
no singular intellectual tradition that is accepted universally, where expert
practice varies with context, and where identity is increasingly salient.
Another particular strength of the Carnegie report is its emphasis on
pedagogy as well as curriculum. As its authors point out, there is `striking
conformity in outlook and habits of thought among law school graduates',
not only across the United States but even further afield. This conformity
arises from a widely used signature pedagogy, the case-dialogue method that
emphasizes `the priority of analytical thinking in which students learn to
categorize and discuss persons and events in highly generalized terms'.
turn, this approach:
conveys at a deep, largely uncritical level an understanding of the law as a
formal and rational system, however much its systems and rules may diverge
from the commonsense understandings of the layperson.
The connection between curricular and pedagogical methods that carry
unmarked metaphors of order and structure is vitally significant. Not only
should these unmarked, value-laden messages be unpacked, but the way they
are conveyed must be examined in the light of recent scholarship on teaching
and learning. Multiple empirical studies have shed light on optimal ways to
teach, underlining the importance of double-loop learning and integrating
contemplative practices.
How do embedded metaphors of order and structure conveyed to students
affect learning? They privilege the procedural and the systematic, often at
the expense of a focus on substantive fairness, innovation or diversity. They
also give rise to a number of unintended consequences, including a habit of
reductionist thought that may lead students, and the lawyers they become, to
see clients as other than multi-dimensional human beings, and clients' stories
primarily as distillable into legal categories. Thus, uneven and unjust appli-
cations of law to those whose metaphors for social or economic relations are
alternative and `marked' are perpetuated.
This accent on order and structure may give way to the malaise that many
students report after beginning legal studies. Lawrence Krieger writes that
the negative toll law school exacts on many is pervasive and potentially
55 Sullivan et al., op. cit., n. 48, p. 186.
56 id.
57 id.
58 M. LeBaron and M. Patera, `Reflective Practice in the New Millennium' in
Rethinking Negotiation Teaching: Innovations for Context and Culture, eds. C.
Honeyman et al. (2009) 50, at .
See, also, D.S. Austin, `Killing Them Softly: Neuroscience Reveals How Brain Cells
Die From Law School Stress and How Neural Self-Hacking Can Optimize Cognitive
Performance' (2014) 59 Loyola Law Rev. 791, at 838.
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Some of the experiences he warns about include `dis-
connection from yourself' and `losing faith in the law'.
He goes on to
admonish that learning to think like a lawyer is `a legal skill but not a life
Krieger likens skills of legal analysis to `learning to weld or use
some other powerful tool'.
Metaphors about trades and tools may appear to sit well alongside the
Carnegie report's focus on apprenticeship, but they actually go in another
direction. Comparing legal analysis to welding invokes an image of a
technical, severable skill that can be used and set down at will. It suggests a
linear relationship between the application of the skill and a desired out-
come. Further, it contemplates an approach where step-by-step application of
procedures will bring things together, and where it is possible to leave work
on the work site. But legal analysis requires a diffuse orientation as well as a
specific one. It means thinking abstractly, and across categories, in under-
standing multiple aspects of an issue with reference to the social context.
Legal analysis is not easily left at the work site, but becomes intertwined
with a new lawyer's way of seeing the world. Metaphors like welding
actually frame legal education as a trade school, and ± if used to guide
curricular and pedagogical reform ± risk leaving students even more bereft.
Why is this a risk? Because, as the Carnegie report makes clear, a vital
component of legal training relates to identity. Legal analysis is not only a
way of thinking or a set of technical skills. It is an indivisible part of a
Weltanschauung, a worldview. Cognizant of this, law schools should do
more to connect meaning and purpose to legal education, not surgically
separate them. Using a welding metaphor as an analogy for legal analysis
does nothing to assist students in the critically important task of linking these
skills to their professional identity and purpose. Indeed, there is a widening
chasm now that the cognitive aspects of legal education are separated from
practical internships and socialization into the profession. As the Carnegie
report says:
School-like settings are very good environments for learning [cognitive and
intellectual aspects of law]. At the same time . .. professionals must be able to
integrate, or re-integrate, this kind of knowledge within ongoing practical
contexts. But in this area, students learn mostly by living transmission, through
pedagogies of modeling and coaching. For law schools . .. re-integration of the
now-separated parts is the greatest challenge.
Later in the report the authors reiterate the inseparability of these components:
59 L.S. Krieger, `The Hidden Sources of Law School Stress: Avoiding Mistakes that
Create Unha ppy and Unpro fessional L awyers' (un dated), at ttp://ser vices>.
60 id., p. 8.
61 id., p. 9, italics in original.
62 id.
63 Sullivan et al., op. cit., n. 48, p. 79.
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[a]lthough some people believe that law school cannot affect students' values
or ethical perspectives, in our view law school cannot help but affect them. For
better o r worse, th e law scho ol years c onstit ute a powe rful mor al
apprenticeship, whether or not this is intentional.
The challenge of integration of clinical, theoretical, and attitudinal aspects
of legal training has been taken up by a number of scholars, including Peggy
Cooper Davis of NYU Law School who suggests that as the cognitive,
practical, and ethical-social aspects of an apprenticeship approach become
more intert wined, stu dents' und erstandin gs of fundam ental conc epts
improve. She points out that integrating the curriculum in the way the
Carnegie report recommends can be mutually enhancing, and need not be
seen as a zero-sum game.
Lande and Sternlight argue that the recommended reforms of the
Cramton, MacCrate, and other committees have fallen prey to those who
resist centrally situating skills like dispute resolution or negotiation in law
school curricula.
Competitive metaphors that so often characterize legal
education reform debates function as unmarked metaphors, and are thus key
parts of the problem, they argue. Integrating these skills into the curriculum
does not mean replacing an emphasis on litigation; rather, it involves
teaching students to integrate broader, complementary, and more robust
repertoires for handling clients' problems. While Lande and Sternlight do
not explicitly use geometric metaphors, their work is redolent of a more
rounded, multi-dimensional approach to supplant the static, linear methods
that are still too characteristic of legal education. In countering the com-
petitive metaphor shaping much of the discussion over the past three
decades, they offer new possibilities for consensual ways forward.
As the Carnegie report makes clear and others have realized, linear
metaphors that accent structure and the status quo are unlikely to be
responsive to the scale of change needed. Because curriculum and pedagogy
are closely interrelated, substantial reform in one could ± and must ± help
catalyse a shift in the other. To inspire this, a new metaphor is needed, or a
variety of new metaphors, to guide dynamic, context-sensitive reform.
64 id., p. 139.
65 P.C. Davis, `Experiential Legal Education in the United States' in Can Justice be
Taught? Social Responsibility and Legal Education (2006), report by the Publications
Committee of the results of the First International Symposium, Kwansei Gakuin
University Law School Support Program for Professional Graduate School.
66 J. Lande and J.R. Sternlight, `The Potential Contribution of ADR to an Integrated
Curriculum: Preparing Law Students for Real World Lawyering' (2010) 25 Ohio J. of
Dispute Resolution 247.
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Several scholars have responded to the challenge of fundamental and multi-
dimensional change in legal curriculum and pedagogy, suggesting that a
paradigm shift is needed. In a particularly innovative piece, Israeli legal
scholar Dr. Yael Efron poses the metaphor of a pentalectic sphere as a way
of thinking about reform.
As described by Efron, the `sphere encompasses
five elements of legal education [and perhaps of legal scholarship as well]
that are . . . essential to the process: knowledge, skills, values, capacity
building and cultural fluency.'
The sphere is surrounded by a membrane
representing technology, which touches pervasively on each of the nodes.
This pentalectic sphere, illustrated in Figure 1, is a compelling image for
legal education reform ± consciously chosen, dynamic, and evocative.
The sphere has multiple dimensions and any of them can have primacy at
any given time, while still remaining related to the others.
As the figure
shows, each node is connected to each other node, emphasizing that reform
of one aspect of legal education affects all other aspects. The sphere is not
flat but multi-dimensional, dynamic, and always interacting in complex ways
with its environment. Based as it is on systems principles, the pentalectic
sphere nudges reform in non-hierarchical, synchronistic, and non-sequential
ways that match ways that students in the current generation learn.
A striking feature of the sphere as conceptualized by Efron is its basis in
inquiry. Not a prescriptive tool, it is instead meant to serve as a focal point
for curiosity and dialogue informed by contemporary learning theory.
Existing as it does in a multi-dimensional spatial setting, the pentalectic
sphere also accents the socio-political context in which legal education is
always operating. In its textured, changeable form, the sphere constellates an
alternative to more linear ways of conceiving reform. As Efron writes, a
pentalectic sphere-inspired curriculum would be asymmetrical, dynamic, and
flexible, with considerable variation across law schools. Because it envisions
a dialectic process of ongoing questions and answers specific to contexts, the
sphere could spawn and anchor diverse approaches to legal curricular
As the Carnegie report authors emphasize, pedagogical innovation is an
essential accomp animent to curricul ar reform. Experien tial activities,
embodied exploration, and dialogue using the figure as a focus could bring
it to life in spacious and inspiring ways. The salience, potency, and impact of
the metaphor itself are integrally interconnected with how it is applied
67 Y. Efron, `The Pentalectic Sphere as a Means for Questioning Legal Education'
(2015) IX Arizona Summit Law Rev. (forthcoming).
68 id., p. 3.
69 Y. Efron, `The Legal Education Pentalectic Sphere as Inquiry: Towards a Paradigm
Shift', Faculty colloquium, Allard School of Law, University of British Columbia,
April 2015.
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pedagogically. If scholars encountering the pentalectic sphere use it to foster
creative, dynamic engagement with students, new spaces for reflection and
innovation may further inform curricular changes. As a metaphor for
pedagogical and curricular reform, the pentalectic sphere is not only a
marked one; it seeks to inspire metacognitive reflection on the unmarked
assumptions that keep outmoded metaphors securely anchored even as the
whole world changes.
More remains to be done to examine the utility of new metaphors like the
pentalectic sphere for spurring change in legal education. What appears clear
from my review is that metaphors posing crisis have not catalysed substantial
change. Perhaps lawyers and their counterparts in the academy have become
inured to dire predictions. Perhaps legal scholars are too comfortable to be
aroused from their somnolence. Or perhaps, as discussed earlier, legal
identities and the structure of the legal profession itself form powerful
unmarked metaphors that resist external pressures. Perhaps only more
dramatic changes in legal practice will drive curricular change, like a tail
wagging a dog. For change to happen, new conversations amongst legal
professionals, scholars, governing bodies, policy-makers, and members of
civil society are needed to uncover shared discursive frames rather than
reproducing unrelenting dialogues of the deaf.
Signs of change are accelerating everywhere. In Canada, for example, two
new firms have recently appeared, calling themselves matchmakers for
prospective clients and lawyers. LawyerLinx and Kabuk Law use web-based
directories and algorithms to make matches, taking into account clients'
budgets and preferences for fee-per-hour or per-job billing.
The legal
landscape is changing, and legal education must too.
Figure 1. Efron's pentalectic sphere
70 J. Gray, `Like, but for Lawyers' Globe and Mail, 8 June 2015, B3.
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To guide this change, new kinds of conversations with deliberately chosen
metaphors that signal urgency without crisis are needed. Kinetic images that
invite engagement from various perspectives may inspire collaborative ways
of moving forward. The call for new metaphors is widespread, though most
often it is expressed in substantive rather than process-oriented arguments.
Richard Susskind, a prominent legal futurist, draws on the metaphor of
adaptation. Predicting that the legal landscape will be unrecognizable in only
a few years because of three factors ± cost pressures, disruptive technologies,
and liberalization ± he argues that change is no longer a choice.
If lawyers
are going to survive as a profession in anything like the forms and numbers
of the present, legal curricula must be reformed in ways that respond to
current realities.
Already behind the change curve, legal scholars must find ways to think
differently about law: its boundaries, its adaptation to technological shifts,
and the pressure to do more for less. Susskind's challenge suggests nothing
short of a multi-faceted sea change in how lawyers see lawyering and
themselves in it, analogous to the Carnegie report's focus on needed identity
shifts. All of this points to the urgent need for new metaphors to scaffold a
large-scale change programme, metaphors that not only positively guide
changes to legal curriculum and pedagogy, but also inform meaningful
engagement processes that foster positive changes.
If, as Robert J. Lifton wrote, we live in a `protean' age, legal education
must mirror the humans we are coming to be.
Lifton contends that modern
life is drawing us into developing fluid, many-sided personalities, restless yet
comfortable with continuous exploration, dynamism, and experimentation.
He envisions a society that increasingly disregards previously established
traditions, one in which the continuities of previous times are no longer taken
for granted. Does this mean discarding old identity attachments as lawyers
and legal scholars? With which identity metaphors do we replace them? In
the foreign country of the future, legal education and institutions alike will
have to find ways of answering this question.
If law and legal education are to be part of the solution to the wide range
of social ills we face, from alienation and violent conflict to potential
economic, social, and environmental collapse, reform is imperative. Given
the preponderance of voices that insist that change is urgently needed, legal
scholars would do well to take a long step back and rethink the `givens' of
legal education, in terms of both pedagogy and curriculum. We can and
should ask many questions, including whether black-letter law courses are
still the most important staple of a legal education and how most effectively
to communicate lawyering identities, values, and purpose.
71 R. Susskind, `Tomorrow's Lawyers' (2014) 81 Defense Counsel J. 327.
72 R.J. Lifton, The Protean Self: Human Resilience in an Age of Fragmentation (1999).
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Which social values will future lawyers best fulfill? Arguably, if lawyers
are to be `healers of conflict', then law schools need to meet the major
contextual challenges that are radically altering practice.
They also need to
model effective dialogue, engaging in data-rich, thoughtful exchanges that
draw on best practices from process design and dispute resolution. Seeding
dialogues with generative metaphors including innovative images like the
pentalectic sphere may advance these much needed conversations.
There is little doubt that there is much time-sensitive work to be done. We
are overdue to replace the tired metaphors of combat and revolution that
shape conflict over curricular reform. Instead, we need to find collaborative
ways to engage the change happening all around us. Dispute resolution
scholarship has yielded numerous tools to design effective conversations,
complete with careful attention to metaphors, marked and unmarked. The
field of dispute process design remains disconnected from legal education
reform efforts, but its insights into effective engagement and decision-
making processes are urgently needed.
At the same time, no single reform effort or process expertise will foster
the lasting change needed. Change can and should arise from top-down
policy change, from multi-sectoral consultations to imagine new ways
forward, and from the bottom up as faculty members re-examine and re-
adjust their metaphors and approaches to legal education. It should involve
seamless interfaces amongst these three levels. Metaphors that connote
spaciousness, context mindfulness, interconnectedness, and accountability
are essential. Consciously chosen metaphors and sound dialogic processes
are important steps toward embracing the transformation of legal education.
As this is done, the petals of the rose that is legal education may be
73 Chief Justice W.E. Burger's address to the American Bar Association Winter
Convention, Las Vegas, February 1984.
74 A. Acland et al., Dialogue by Design. A Handbook for Public and Stakeholder
Engagement (2012), at logue_by_
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