Wednesday, February 20, 2013

The Burden of Proof in Legal Education Reform

Professor James E. Moliterno made an interesting observation in a recent post on the Legal Whiteboard: "in the legal profession and legal education in particular, the status quo never seems to need empirical justification. Only change is suspect and wrong until proven definitively to be otherwise. Is there any empirical evidence that the status quo third year is the best possible third year except that it has been done that way for a long time? None that I know of. The old adage, ‘if it ain’t broke don’t fix it’ does not apply here. The third year of legal education is ‘broke.’" 

He continued: "Change is not good merely for change’s sake. But it is not prudent to stay the same when the world has changed. The practicing branch has changed; client needs and demands have changed; the society that the legal profession claims to serve has changed. Only legal education (and the organized bar) now remain stubbornly tied to anachronistic ways. The legal profession itself and legal education in particular, live as if they had eyes on the back of their head, but none on their face. Only what is past seems to be valued–Even when what has past has no empirical basis and the conditions in which it exists have dramatically changed."

Of course, those who are advocating change do have a responsibility for supporting the need for the change and effectiveness of that change. However, Professor Moliterno has a point, those who support traditional ways of legal education also have a responsibility of providing evidence that the traditional methods work better than the proposed changes.

This is especially true in light of the clear evidence that traditional legal education is not working. The Carnegie Report, the McCrate Report, Best Practices in Legal Education, and numerous scholarly articles have established that there are major flaws in traditional legal education. Has anyone proven these reports wrong? Are their methodologies flawed? Do they lack adequate support for their claims? I have not seen any study that successfully refutes these reports.

While it will take some time to study the effectiveness of reform on legal education, the methods being advocated by reformers have been shown to be effective in other areas of education. Over the last twenty years, there has been an avalanche of books and articles on active learning, self-regulated learning, expert learning, teaching metacognition, teaching reflection, and experiential learning. It is time that legal education adopt this new scholarship, rather than "remain[ing] stubbornly tied to anachronistic ways."

(Scott Fruehwald)

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