Sunday, September 22, 2013
Is There a Consensus that the Content and Quality of Legal Education has Failed to Educate Attorneys for their Work?
As we mentioned last week, the ABA Task Force on the Future of Legal Education has issued a draft report and recommendations. You can find the report here. There is an excellent summary on the Tax Prof Blog.
In his critique of the draft report, Professor Matt Bodie makes this declaration: "However, there is not consensus that the content and quality of legal education has failed to educate attorneys for their work. . . . To make these much more contestable claims, there needs to be data and analysis to back it up." I am not sure how you determine whether there is a comsensus in a group as large, dispersed, and as diverse as legal education. However, the evidence (the data and analysis) has demonstrated "that the content and quality of legal education has failed to educate attorneys for their work." This proof is not just by a preponderance of the evidence, but beyond a reasonable doubt.
Studies over the past twenty-five years have shown that current methods of delivering education to law students are ineffective:
McCrate Report (1992)
William M. Sullivan, Anne Colby, Judith Welch Wegner, Lloyd Bond, & Lee S. Shulman, Educating Lawyers: Preparation for the Profession of Law (2007)
Roy Stuckey et al., Best Practices in Legal Education (2007)
Dorthy H. Evensen et. al., Developing an Assessment of First-year Law Students’ Critical Case Reasoning and Reasoning Ability: Phase 2 (LSAC 2008)
James E. Moliterno, The American Legal Profession in Crisis: Resistance and Responses to Change (2013)
See also Educating Tomorrow's Lawyers, Institute for Law Teaching and Learning, Center for Excellence in Law Teaching, Jay Feinman & Marc Feldman, Pedagogy and Politics, 73 Geo. L.J. 875 (1985), Scott Fruehwald, Preface: Think Like A Lawyer: Legal Reasoning for Law Students and Business Professionals (2013), Scott Fruehwald, How to Help Students from Disadvantaged Backgrounds Succeed in Law School (forthcoming, Texas A & M L. Rev.), Richard K. Neumann, Jr., Comparative Histories of Professional Education: Osler, Langdell, and the Atelier (2013), Benjamin Spencer, The Law School Critique in Historical Perspective, 69 Wash. & Lee L. Rev. 1949 (2012), James F. Stratman, When Law Students Read Cases: Exploring Relations between Professional Legal Reasoning Roles and Problem Detection, 34 Discourse Processes 57 (2002), Judith Welch Wegner, Reframing Legal Education’s "Wicked Problems," 61 Rutgers L. Rev. 867 (2009), Michael Hunter Schwartz, Improving Legal Education by Improving Casebooks: Fourteen Things Casebooks Can Do to Produce Better and More Learning, 3 Elon L. Rev. 37 (2011), Michael Hunter Schwartz, Teaching Law by Design: How Learning Theory and Instructional Design Can Inform and Reform Law Teaching, 38 San Diego L. Rev. 347 (2001), etc.
On the other hand, I know of no comprehensive study or report from the past 25 years that says that our current methods of teaching law students are working. Can anyone cite me such a report?
A few excerpts concerning the need for education reform:
1. The Evenson study concluded, "students’ case reading and reasoning skills do not improve as a result of law school instruction." (Above at *1). This study has also shown that law students have difficulty synthesizing cases. (Above at *4)
2. Professor Schwartz has declared, "law school instruction as a whole, remains locked in an instructional methodology of dubious merit." (Schwartz, Law Teaching, at 349).
3. "Law schools cannot help students cultivate practical wisdom or judgment unless they give students opportunities to engage in legal problem-solving activities." (Best Practices at 150)
4. Professor Schultz has declared, "The limited focus of most law school classes on derivation of rules and policy considerations from appellate decisions cannot begin to approximate the thinking process of the competent attorney. Teaching students to think like attorneys loses much of its meaning if that thinking is not placed in the context of what lawyers actually do." (Nancy L. Schultz, How Do Lawyers Really Think? 42 J. Leg. Educ. 57, 64 (1992))
5. Professors Feinberg and Feldman have contended, "[w]hat is primarily missing in legal school is an educational environment that provides students with resources and the situations with which they can best learn. When given appropriate instruction, nearly all law students can achieve mastery–not merely competence–of the skills of the novice lawyer." (Above at 896-97)
6. Professor Wegner has asked, "Have law schools limited their expectations of themselves and their students by focusing so heavily on certain educational objectives (comprehension, analysis, and simple application), and giving others (such as more sophisticated forms of application, synthesis, and evaluation) short shrift?" (Above at 938)
7. Benjamin Spencer has written, "Although these contemporary reforms are appropriate moves in the right direction that will yield results on the margins, to this point they have not resulted in a wholesale change in the practice-readiness of American law school graduates, a failing reflected and explored in the 2007 Carnegie Report and other recent studies." "Law school does not routinely provide training in many of the practice skill areas—such as drafting, counseling, planning, client development, management—needed to be a successful practitioner; only a tiny percentage of law schools require clinical training and the majority of students graduate with no clinical experience; its primary pedagogical approach (the case-dialogue method) is ineffective and demoralizing; its main approach to assessment remains the final essay exam, which reflects little about the professional competency of students and comes too late to allow self-improvement; faculty incentives promote scholarship over the needs of students; many professors (particularly the more recent ones) have little or even no experience practicing law and lack membership in the bar; and law school costs so much that most graduates have mammoth, mortgage-like debts that limit their economically viable options after graduating. This is no way to produce competent legal professionals."
Concerning the case-dialogue method, Spencer argues, "the ability of the case-dialogue method to transmit analytical skills effectively has never been demonstrated. . . . Additionally, the type of thinking promoted by the method is limited to certain kinds of legal analysis, neglecting some of the basic problem solving skills that today’s practitioners need to develop solutions to their clients’ problems." He also criticizes the use of the Socratic method in large classrooms because it tends to focus attention on a discussion between a few students and the professor. He adds: "Although the students involved may benefit to some extent, the method is less effective in instilling legal analytical skills vicariously to observers not involved in the discussion, creating diminishing returns as the class grows in size." He notes, "Insights from learning theory reveal that teaching focused mainly on purely abstract concepts divorced from their context—something that fairly characterizes the case method—is less effective than teaching that recognizes that we experience information in many different ways and at different levels of abstraction." He concludes, "Law school learning exclusively rooted in symbolic, abstract experience is less likely to be effective in giving students the depth of understanding requisite for moving towards proficient legal practice. Further, to the extent that legal learning is exclusively at the abstract level, it becomes difficult for students to synthesize learning from different areas or to operationalize concepts for practical application and the resolution of real-world legal problems." (Above)
8. Finally, Richard Neumann has asserted, "Whenever change is proposed in legal education, the threshold question is whether it would be consistent with the Langdellian bargain. If the proposal would significantly reallocate resources — either within the law school or between the law school and the university — in a way that would alter the bargain, the proposal fails because no one will voluntarily give up what the bargain has provided." (Above)
In sum, the data and analysis overwhelmingly demonstrate the need for reform concerning how law schools deliver education to their students. I would call this a consensus.