Two and a Half Ethical Theories: Re-Examining the Foundations of the Carnegie Report

In the past three years, the American Bar Association, several major state bar associations, the Association of American Law Schools, the New York Times, law students, and many legal educators have called for fundamental changes in the way we educate new lawyers. Some critics have suggested that legal education faces a crisis that will be exacerbated by rising tuitions, declining enrollments, and a precipitous drop in the demand for new lawyers. Most of those calling for change have relied on the critical analysis of modem legal education presented in a 2007 report by the Carnegie Foundation for the Advancement of Teaching entitled Educating Lawyers: Preparation for the Profession of Law. Despite the central role of the Carnegie Report in current debates about legal-education reform, however, no one has yet made a careful study of the theoretical foundations and, in particular, the ethical grounding of the Report itself. This Article fills that important gap in the literature by critically analyzing the three ethical frameworks that organize and underpin various aspects of the Report\u27s account of modem legal education and its failings. Although a teleological ethical framework with roots in the philosophy of Aristotle provides the Report\u27s backbone, the Report\u27s treatment of that framework is incomplete, somewhat careless, and ultimately unconvincing. Competing with the teleological framework throughout the Report are an emotivist framework with relativist and possibly nihilist implications and a contractarian framework that makes little sense on its own terms and contradicts key assumptions of the core teleological framework. Before we can justify implementing educational reforms based on the Carnegie Report\u27s analysis and recommendations, we must do a great deal of additional scholarly work to resolve a number of basic theoretical problems that threaten to undermine the intellectual foundations of the Report itself. Otherwise, efforts to reform legal education may do little more than build glass houses on shifting sands