Thursday, May 9, 2013

Professor Richard Epstein on Legal Education: A Reply

A few days ago, one of my co-bloggers had a post on Professor Richard Epstein’s review of Stephen Harper’s, The Lawyer’s Bubble. In this post, I will comment on Professor Epstein’s remarks on legal education reform.

He argues, "If 50 years ago students could make good use of three years of a law-school education, they certainly can do so in today's vastly more complicated world." If we adopted this attitude to other areas, we would not be using computers or we would still be traveling by horse and buggy. As Professor Epstein acknowledges, the world is more complicated today. Not only has technology created a different world from 50 years ago, we have a much more diverse student body in our law schools. Most importantly, our knowledge of the brain and learning has changed radically in recent years. As one prominent education scholar has noted, "We have learned more about how the mind works in the last twenty-five years than we did in the previous twenty-five hundred." (Daniel T. Willingham, Why Don’t Students Like School 1 (2009)).

Professor Epstein elaborates: "Nonetheless, Mr. Harper charges that academics like me, who are obsessed with high theory, cause ‘institutional inertia’ in law schools and prevent the sort of evolution necessary to gear students up for the 21st-century legal market. The author's recipe for change includes large doses of hands-on instruction on business relations and practice skills. But law schools can't just be "practical training" centers, as Mr. Harper would have them; they must make sure that their students grasp the fundamentals of legal theory and doctrine. Future lawyers must also be capable of connecting law with collateral disciplines ranging from corporate finance to game theory to cognitive psychology."

I agree with Professor Epstein that law graduates must grasp the fundamentals of legal theory and doctrine. However, in attacking "practical training," he fails to understand what most of us in the legal education reform movement are arguing. We want to bring the learning from cognitive psychological studies of education into legal education to make the teaching of law more effective and deeper.

First, as I mentioned in a post earlier this week, knowledge is organized in long-term memory the way we learn it, and it is difficult for one to retrieve long-term knowledge when it is needed for a different purpose. As a group of education scholars have declared, "students performed better when their knowledge organization matched the requirements of the task, and they performed worse when it mismatched." (Susan Ambrose, How Learning Works 48 (2010)). Consequently, because law schools mainly teach students to be appellate lawyers and legal philosophers, lawyers have trouble retrieving and transferring their legal knowledge when they need it for a different task, such as writing a client letter, drafting a contract, or writing interrogatories.

Second, the new approaches to teaching based on the neurobiology of learning reinforces law students’ abilities to remember, retrieve, and manipulate knowledge. Legal education research has shown that students remember things better when they apply their knowledge. This is because when one manipulates knowledge, the neurons in long-term memory where the knowledge is stored are fired strengthening the neurons. In addition, more connections are created between the neurons (synapses) so there are additional ways for short-term memory to retrieve the knowledge.

For example, the best way to learn the doctrine and theory of defamation in a torts class is to go over the material, then after the students understand the principles, have them apply those principles to problems. Every doctrinal class should have a significant problem-solving element so that the students will have a deeper undrstanding of the concepts.

Similarly, classes that are labeled "skills classes" bring about deeper learning of concepts. Skills teachers do not teach skills in a vacuum. Skills must be taught in a knowledge domain, such as civil procedure or fair use. I have used personal jurisdiction problems several times in my legal writing classes. After they were done with the assignment, my students frequently told me that they understood personal jurisdiction much better than they did other civil procedure concepts that they learned in their doctrinal class.

Other skills classes also strengthen and deepen doctrinal knowledge. Learning to write interrogatories involves much more than being able to follow the format. To write effective interrogatories, one must be able to understand doctrine well enough to be able to elicit the answers (factual knowledge) necessary to win a case. I would wager that those who can write effective interrogatories have deeper knowledge of a field than those who can just do well on an exam on that field.

There is no reason to misunderstand what the legal education reformers are saying. For example, Michael Hunter Schwartz has written a series of articles and books on legal education and how to apply the new principles in law school classes. (E.g., Michael Hunter Schwartz, Sophie Sparrow, and Gerald Hess, Teaching Law by Design (2009)). I have posted drafts of two articles on SSRN; Teaching Law Students How to Become Metacognitive Thinkers and How to Become an Expert Law Teacher by Understanding the Neurobiology of Learning. Also the theory in this post comes mainly from three easily-readable books on education: Daniel T. Willingham, Why Don’t Students Like School (2009); Susan Ambrose, How Learning Works (2010) and Duane F. Shell et. al., The Unified Learning Model (2010).

Richard, as you may remember, a couple of years ago, we had an e-mail exchange where we both agreed that recent learning in cognitive psychology could illuminate how we understand legal theory and jurisprudence. I believe that the same applies to legal education.

(Scott Fruehwald)

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