Thursday, February 20, 2014

Brian Leiter Misrepresents Harvard Law School Study II

In the first part of this post, I discussed the substance of Brian Leiter’s statement on his blog concerning a recent Harvard law study, "Here. Unsurprisingly, ‘experiential’ learning of the kind a minority is trying to force upon everyone does not loom large." (here) In this part, I will comment on the portion of Leiter’s statement that declares experiential education is supported by a minority.

In his comment to the Council of the ABA Section on Legal Education and Admissions to the Bar concerning a proposal to require 15 credit hours of experiential courses, Professor Robert Kuehn noted, ""The ABA’s House of Delegates urged the Section in a 2011 resolution ‘to implement curricular programs intended to develop practice ready lawyers including, but not limited to enhanced capstone and clinical courses that include client meetings and court appearances.’" (here) He added, ""the ABA’s Young Lawyers Division passed a unanimous resolution in August 2013 calling on the Section to require at least one academic grading period of practical legal skills clinical experiences or classes as a graduation requirement, noting that ‘a J.D. degree alone does not make a lawyer.’" Similarly, "Surveys of recent law graduates show the need to require much, much more professional skills training, including clinical coursework." Finally, "In a 2013 Kaplan Bar Review Survey, 97% of 2013 law graduates favored a law school model that incorporates clinical experience in the third year and 87% agreed that the legal education system needs ‘to undergo significant changes to better prepare future attorneys for the changing employment landscape and legal profession.’" (emphasis added)

Individual members of the Illinois State Bar Association Standing Committee on Legal Education, Admissions, and Competence also submitted a comment in support of the proposal. (here) The ISBA issued a Report that was adopted by unanimous vote of approximately 200 members of the ISBA Assembly in June 2013. The commentators stated that the 15-hour requirement is consistent with the findings and recommendations of the Report. They also declared, " Many lawyers testified at the hearings that law school did not provide them adequate tools to succeed, and that they needed more instruction in the skills that are required in practice. In particular, law schools do not provide adequate opportunities for law students to practice legal writing skills in simulated or real practical settings. Many law schools teach students to write a basic research memo and an appellate brief. Few, however, provide extensive instruction in drafting contracts, legislation, client letters, press releases, discovery requests or responses, wills, or other documents lawyers are called on to produce daily." They continued, "Law schools should prioritize simulation courses, live-client clinics, and other courses that give students the opportunity to learn and apply legal principles in the context of real life problems. Nearly every young lawyer to testify to the Special Committee indicated that he or she would have preferred to have more of these courses in law school if they were offered. Most law schools offer these courses, but few law schools offer sufficient numbers of them. [emphasis added] Law schools should ensure that every student has an opportunity to benefit from practice-oriented courses."

SALT supported the proposal to require 15 credits of experiential courses in a comment to the council, declaring ""Fifteen credit-hours represents approximately 1/6 of the credit hours required for graduation, a reasonable and necessary mandate to ensure law schools are preparing students to practice law competently and fulfill their professional responsibilities to clients and to the court." (here)

In addition, 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)

Illinois Bar Association: Special Committee Report: Final Report and Recommendations (2013)

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?

Finally, Professor Stephan J. Ellman concluded in his comment to the Council: "It seems to me that the burden is on those who disagree with this proposal to explain why law students, unlike their peers in other professions, do not need this level of experiential preparation for the work they will soon be doing."

Professor Leiter, above is my evidence for believing that a significant consensus supports experiential education and the proposal to require 15 hours of experiential courses.  What evidence does your statement rely on?

(Scott Fruehwald)

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I wonder if Leiter actually read the article.

Posted by: Brad | Feb 20, 2014 5:49:10 PM

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