Monday, January 14, 2013

Letter to The ABA Task Force on the Future of Legal Education

The American Bar Association created the Task Force on the Future of Legal Education in summer 2012 and charged it with making recommendations to the American Bar Association on how law schools, the ABA, and other groups and organizations can take concrete steps to address issues concerning the economics of legal education and its delivery.  The Task Force is currently solicing comments. (here)  You can read the comments here.  My comments are below.

To: The ABA Task Force on the Future of Legal Education

Comments on the Future of Legal Education: Reform in the Delivery of Legal Education

 The goal of legal education in today’s world should be to develop self-regulated learners who are practice ready. By self-regulated learners, I mean independent learners, who are self-motivated, self-directed, and reflective. Self-regulated learners know themselves, and they are inquisitive, open to new ideas, and take risks. Most importantly, self-regulated learners have learning strategies, and they focus on the mastery of learning.

Law schools cannot graduate self-regulated learners who are practice ready using the old methods of legal education. Law schools have been using the same outdated method of legal education for over 100 years with a few tweaks at the edges. Law schools need to radically change their teaching methods in all classes.

In the past, law schools have taught students doctrine through the Socratic method. Today’s law schools need to teach their students doctrine and how to apply that doctrine to facts (problem-solving). Every law school class, particularly first-year classes, should incorporate problem solving as a major part of the teaching methods. Not only will this create problem solvers, but studies have shown that learners remember more when they apply their knowledge.

Law schools should also increase the availability of experiential/skills classes. While law schools are adding some skills courses, I have received complaints from students who were not able to enroll in skills courses because of the lack of available slots. I believe that students should take at least one skills course every semester of their second and third years.

Law schools should also teach their students to be self-regulated learners. The first step in creating self-regulated learners is to make the students metacognitively aware–that they control their own learning. Metacognition is thinking about one’s thinking. It includes knowledge of one’s learning, the knowledge of strategies for problem-solving, and the knowledge of when to use a particular strategy. Metacognitive learners know the strategies for solving a problem, consider the alternatives, monitor their learning, and evaluate and reflect on their learning. For example, considering which approach to take when doing a research project is metacognition; doing the research in a digest is cognition.

Law professors can develop metacognition in their students in several ways. First, they should make the students aware of metacognition. One method of doing this is asking the students metacognitive questions, such as "What are the strengths and weaknesses of your study techniques?" "Do you always have clear goals when you tackle a problem?" and "How would you teach another student to solve this problem (e.g., a contracts problem)?" Another way to help students develop metacognition is to do "modeling of strategies" in class where the professor states out loud his or her problem solving process. A similar method is to have the students do think-alouds in which they state out loud all the steps in their thinking process in solving a problem including rejected alternatives and dead ends. Among the many other methods law professors could use to help their students develop their metacognitive skills is to help students with their study habits, such as requiring them to keep journals that include their metacognitive thinking, and to create guidelines for study groups.

A significant part of metacognition is evaluation and reflection. Self-regulated learners preplan, reflect on their learning as it is taking place, and evaluate their learning when it is done. A self-reflective learner compares the new learning to what the learner already knows, compares his or her ideas to those of others, and is a critic of his or her work. A self-reflective learner questions everything rather than just being a passive receptacle for the ideas of others.

To develop cognitive skills in their students, law professors should explicitly teach the miniskills of legal reasoning, such as deductive reasoning, inductive reasoning, reasoning by analogy, synthesis, distinguishing cases, and reasoning by policy. "Hiding the ball" is not an effective teaching technique. Students should also be drilled through exercises in these miniskills. For example, one study has shown that law students are not good at synthesizing cases. To overcome this problem, students need to do multiple synthesis exercises across several subject matter areas.

Formative assessments (having assessments during the semester) aids both metacognitive and cognitive learning. Studies have shown that tests are better for learning in contrast to just studying. In addition, formative assessments provide the students frequent feedback. With the current system of end-of-the-semester finals, students often don’t know what they have done wrong until well into their second semester.

Finally, law schools need to take seriously the Carnegie Report’s third apprenticeship–the "apprenticeship of identity and purpose," which "introduces students to the purposes and attitudes that are guided by the values for which the professional community is responsible." First, we need to teach ethics across the curriculum because it is much more effective to learn the ethical rules in connection with the corresponding doctrine. Second, as a few scholars have proposed, we need to teach professional identity in addition to teaching the ethical rules.

While making the above changes may seem to require a great deal of work for law schools and law professors, the ground work has already been laid. Carolina Academic Press has issued a new series, the Context and Practice Casebooks, that incorporates the new learning in legal education. Similarly, Lexis/Nexis has started a supplemental textbook series called Skills and Values. Likewise, Educating Tomorrow’s Lawyers has several "portfolios" on its website that provide examples of teaching doctrinal subjects in new ways. Moreover, numerous organizations, such as the Institute for Law Teaching and Learning, Educating Tomorrow’s Lawyers, the Center for Excellence in Teaching, the Legal Writing Institute, and the Association of Legal Writing Directors, hold conferences on new teaching and learning techniques. Many of the presentations at these conferences are very specific and practical. For example, I once attended a presentation at an ILTL conference in which I learned how to teach a doctrinal class using the latest in education scholarship. Finally, several law schools have already adopted new approaches to learning. I am especially impressed by the third-year program at Washington & Lee and the problem-solving seminar at Harvard.

In making the above suggestions, I do not mean to imply that there is only one way to reform legal education. Legal scholars have advocated numerous, exciting reforms for legal education in recent years. However, one thing is clear: We cannot stick with the status quo. We owe it to our students to provide the best possible legal education now.

(Scott Fruehwald)

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