Sunday, February 17, 2013
There has been a lively discussion on the PrawfsBlawg over the past few days on legal education reform. However, some of the posts and comments displayed a misconception of what legal education reform is about. While I (and Brian Tamanaha) tried to clear up some of these misconceptions, I think a longer post is needed.
1. Legal education reformers do not want to teach law students simple tasks like finding the courthouse.
Some critics of legal education reform have accused legal education reformers of wanting to teach students to find the courthouse and fill out simple forms. Nothing could be further from the truth. Those who are attacking legal education reform on this ground are just trying to set up a strawman.
Legal education reformers want more sophistication and deeper learning, not less. In addition to doctrine and legal theory, we want to teach students to apply that doctrine and theory to facts–to become problem solvers who can deal with real world problems. First, education scholars have shown that students remember better when they apply knowledge to facts because repetition and application strengthen the neurons where knowledge is stored in long-term memory. Second, manipulation and application of knowledge creates deeper learning (greater understanding and more uses for the knowledge). For example, if a student can successfully apply the parole evidence rule to a set of facts, that student understands the parole evidence rule. Third, theory still has a place. You have to be able to understand the reasons behind a rule to properly apply it to a problem.
In addition, as Jim Moliterno recently pointed out on the Legal Whiteboard, legal education reform is not anti-academic: "To say so betrays a false elitism more likely borne of insecurity than of truth. Many legal academics could not do what lawyers do: solve real clients’ problems that involve extra-legal attributes. The work of lawyers is sophisticated. It partakes of some of the rigor of law school teaching and scholarship, but it also relies on sophisticated problem-solving and a multiplicity of other talents. Some who claim that lawyer work is mundane and uninteresting fail to understand the nature of that work in the first instance." He added: "One blogger said that the 3L curriculum at W&L ‘focuses on practical lawyer skills.’ This sort of statement sells the new curriculum far short of its reality. It actually focuses on the attributes, skills and mental habits of successful lawyers, all while providing students with substantive law and theoretical learning as well. A broad view of lawyer skills would include the mental development fostered in the first year as well. It is time to stop pretending that legal analysis is not a practical lawyer skill. It is and it is both critical and fundamental—but it is not the only skill/attribute/talent that lawyers need to be successful." He also remarked, in the Washington & Lee Third Year program, "students learn the relevant substantive law, but they learn it the way lawyers do rather than the way students do. They learn law to solve a client’s problem. This alone is an activity that adjusts students’ mental pathways from student to lawyer. . . . [For example, in the Lawyer for Failing Businesses,] "students learn the relevant substantive law, but they learn it the way lawyers do rather than the way students do. They learn law to solve a client’s problem. This alone is an activity that adjusts students’ mental pathways from student to lawyer."
Finally, I don’t remember where I read this idea, but it sums up this section nicely: studying what lawyers do is an academic subject.
2. Legal education reformers do not want to destroy everything in the current law schools model; rather reformers want to add to the current law school model.
Some critics have accused legal education reformers of wanting to banish theory and philosophy completely from law schools and send it to graduate schools. They have also criticized legal education reformers of wanting to eliminate the Socratic/casebook method and to prevent law professors from doing scholarship. None of this is true.
First, most legal education reformers do not object to the Socratic/casebook method when it is used properly. I believe that this method does develop thinking skills that practicing lawyers need. What we want is to add other teaching methods that education scholars have shown to be effective, such as experiential learning, problem-solving, teaching reasoning and skills explicitly, etc. These other approaches help students learn in ways that the Socratic/casebook method can’t.
For example, in teaching students a unit in a first-year class, why not adopt this approach? Start by giving a lecture that introduces the students to the topic. Next, discuss cases, using the Socratic method, to help the students understand the details of the topic. Finally, give the students problem-solving exercises to do over night then discuss them in class the next day.
Second, most reformers do not what to eliminate philosophy and theory classes from the curriculum. These classes give students thinking skills that they will need in practice. However, we think that students need more than just practice and theory.
Finally, legal education reformers do not want to eliminate scholarship from a professor’s job description. Reformers just want a better balance between teaching and scholarship. As Brian Tamanaha pointed out in a comment on the PrawfsBlawg, most reformers do esoteric scholarship in addition to their work on legal education.
3. Legal education reform will not create a great deal of new work for law professors.
Many critics of legal education reform are concerned about the new methods creating a much greater workload for law professors. It won’t. Publishers, like Carolina Academic Press and LexisNexis, have already issued casebooks and textbooks that contain what is needed to better educate our students. These books contain (in addition to cases) numerous short and long problem solving exercises, graphic organizers. professionalism materials, etc. Similarly, Educating Tomorrow’s Lawyers has numerous portfolios on its website, which show how other law professors have incorporated new ways of teaching into their courses. The materials are there; we just need to use them.
I hope I have achieved my purpose of clarifying what legal education reform is and is not about. In discussing this topic, we need to focus on what is at issue, not at strawmen.