Practical Wisdom: Reimagining Legal Education
Bluebook Citation
Daisy Hurst Floyd, Practical Wisdom: Reimagining Legal Education
Practical Wisdom: Reimagining Legal Education
Daisy Hurst Floyd
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Article 5
ARTICLE
PRACTICAL
WISDOM:
REIMAGINING
LEGAL
EDUCATION
DAISY HURST FLOYD*
INTRODUCTION AND BACKGROUND
We are at a moment of both crisis and opportunity in American legal
education. Recent public criticism of what we do and how we do it has
generated heated debate. Justifiable concerns about the high cost of a legal
education, a difficult job market for recent graduates in the midst of unmet
needs for legal services, the influence of rankings, the proliferation of law
schools, and a shrinking applicant pool call into question both the purpose
and value of legal education.1 It is a time that calls for innovation,
creativity, and rethinking legal education’s goals and methods. It is a time to
reimagine the education our students receive. This symposium, which
focuses on identity formation as a primary purpose of law school and urges
* Daisy Hurst Floyd is University Professor of Law and Ethical Formation at Mercer
University School of Law. This work was supported by a grant from Mercer University School of
Law. I am grateful to Mercer Dean Gary Simson for his support and to the Holloran Center for
Ethical Leadership in the Professions and the University of St. Thomas Law Journal for
supporting work on ethical formation.
1. See generally David Segal, Is Law School a Losing Game?, N.Y. TIMES, Jan. 8, 2011,
http://www.nytimes.com/2011/01/09/business/09law.html?pagewanted=all&_r=0; David Segal,
What They Don’t Teach Law Students: Lawyering, N.Y. TIMES, Nov. 19, 2011, http://www.ny
times.com/2011/11/20/business/after-law-school-associates-learn-to-be-lawyers.html?pagewanted
=all; David Segal, For Law Schools, A Price to Play the ABA’s Way, N.Y. TIMES, Dec. 17, 2011,
http://www.nytimes.com/2011/12/18/business/for-law-schools-a-price-to-play-the-abas-way.html?
pagewanted=all; Chris Mondics, Villanova Law Censured by ABA Over Admissions-Data Fraud,
But Retains Accreditation, PHILADELPHIA INQUIRER, Aug.
16, 2011
, http://articles.philly.com/
2011-08-16/business/29892664_1_law-school-american-bar-association-lsat-scores; Ameet
Sachdev, U of I Law School Falls 12 Spots, to No. 35, in U.S. News and World Report List: Lower
Ranking Related to Admissions Scandal Last Fall, CHI. TRIB., March 15, 2012, http://articles.
chicagotribune.com/2012-03-15/business/ct-biz-0315-law-rankings-20120315_1_median-gpa-me
dian-lsat-score-admissions-scandal; David Segal, Law Students Lose the Grant Game as Schools
Win, N.Y. TIMES, April 30, 2011,
http://www.nytimes.com/2011/05/01/business/law-schoolgrants.html?pagewanted=all; Katherine Mangan, Lawsuits Over Job-Placement Rates Threaten 20
More Law Schools, CHRON. HIGHER EDUC., March
14, 2012
, http://chronicle.com/article/Law
suits-Over-Job-Placement/131163/ (for some of the recent negative attention to law schools in the
popular press).
legal educators to think empirically about ways to meet that purpose, is a
positive step toward reaching that goal.2
We can reimagine legal education by taking seriously the ethical
formation of our students. A focus on ethical formation requires us to consider
not just what lawyers should know and what they should do, but also who
they should be in order to live out the best ideals of the profession. It
requires us to envision our graduates as the lawyers they will be. It demands
that we think about the multiple capacities we want our graduates to use in
the service of their clients and their profession. This article proposes that we
conceive of the purpose of ethical formation as developing lawyers who can
exercise practical wisdom. Practical wisdom is an ancient concept, derived
from Aristotle, which has continuing resonance for modern life and
particularly for modern professional life.
To make the case that we need lawyers with practical wisdom, I will
start by imagining our students as they will be some years from now. Please
consider with me three former law students—Nick, Daphne, and Maria—
who are now experienced lawyers. We meet each of them at a particular
moment of professional practice, in which they are called upon to act out of
their professional knowledge, education, and experience.
Moments of Professional Practice: Three Lawyers
1.
Nick
Nick has been a lawyer for just over six years, practicing as an
associate in a mid-sized law firm. The firm will be deciding very soon whether he
will be invited to partnership. Nick’s practice focuses on transactional
matters. He has recently been representing one of the firm’s regular clients, the
owner of a large manufacturing facility, in negotiating an agreement with
an import company for the regular purchase of materials. The negotiations
developed an impasse over a particular provision that the other party insists
on putting into the contract. The provision is an escape clause from the
contract in the event that natural disaste (...truncated)