Friday, January 22, 2016

Adaptive Strategies for the Future of Legal Education by Steven Friedland

Adaptive Strategies for the Future of Legal Education by Steven Friedland.


"In the parable about a scorpion and a frog, a scorpion wishes to cross a large river and asks the frog to carry it across. The frog refuses, observing that the scorpion would sting the frog and kill it. In response, the scorpion says that if the scorpion kills the frog, they would both drown, and that would be a self-defeating strategy. The frog thinks it over and consents. Halfway across the river, the scorpion stings the frog. As they both are sinking into the fast-moving water, the frog croaks out incredulously, "Why would you sting me and kill us both?" The scorpion responds, "Because I am a scorpion; that is what scorpions do."

Legal education orthodoxy is analogous to the scorpion. It is known for being very good at what it does-teaching students to "think like lawyers." Its "sting"-teaching critical thinking-has left its mark on law, politics, business, and numerous other fields. The goal of teaching critical thinking was and is the gravamen of the law school process and the focus of the signature pedagogy of legal training, the Socratic method. While many peripheral and minor changes have been implemented along the way, the singular focus on the analytic method has worked very well over the years, producing many successful and highly-regarded graduates.

This Article suggests, though, that legal education orthodoxy today is at risk of drowning itself if it continues to ride its singular emphasis on critical thinking. This is particularly true when viewed from the perspective of job availability in a shifting professional environment. While teaching critical thinking remains important, if not essential, it alone does not appear to provide a successful adaptive strategy for the future.

The source of much of the educational domain's recent instability has been external to legal education. The structural changes of the legal profession have been exacerbated by the economic recession of 2008,adding a new and powerful consideration to the calculus for legal education success-the legal services marketplace. The assumption of just a decade ago, that all qualified law school candidates would be able to find good jobs upon graduation, has dissipated. In light of changes in the job market, there has emerged the recurring question of whether law school is a rational and economical choice for those who are qualified to enter. The recession has led students to examine the value of a law degree with the proverbial microscope. Tools for evaluating legal education have broadened as well, with Internet blogs and other media providing global perspectives-and pressures.

A byproduct of reframing legal education as a commodity has been a new emphasis on valuation. With legal jobs disappearing as a result of economic contraction, globalization providing additional external pressures, and the proliferation of legal information on the Internet offering anyone access to their own version of a law library, the commoditization of legal education has become a more recognizable phenomena-a product to be weighed and measured in comparison to its alternatives. With high costs and an uncertain and volatile job market, the educational process has come under repeated and sometimes hostile scrutiny, especially in blogs and the media.

A closer examination of a primary objective of legal education-preparing students to become practicing lawyers also provides an independent need for change. Thinking like a lawyer is only a part of preparing students for the performance and work of a lawyer or related occupations. In the modern world, the ability to communicate with and influence others is important. Law students must be able to communicate with clients, work on teams, and manage projects to succeed. Lawyers also must deal with clients, serve the aims of their firms or organizations, act with integrity in and out of court, and much more. Students will need to perform competently and exhibit professionalism in their everyday work lives, even as nascent graduates. New lawyers must be culturally competent, which means they must measure up within different professional domains, where requirements can vary from firm to firm, in state, federal, or local government work, and from advocacy to advice work. As one commentator noted, there are different stages of cultural competence, and these can be navigated by law students and lawyers alike. To meet these needs, it is increasingly apparent that the preparation of lawyers must adapt better to the external changes in the legal services market place. This must be done within the curriculum and beyond it, in educational culture and the interstices between student and attorney. Today, while the training function is still shared, law students who have no experience working on teams, dealing with clients, or managing projects generally will be less attractive to the profession than those who learned about the practice of law and began forming a professional identity while in school.

This Article uses the current environment of uncertainty and complexity as an opportunity to promote strategic thinking about legal education. The Article suggests changes that might help law schools adapt to the volatile and global climate likely ahead. The proposed changes, to be clear, do not deviate from the high expectations and standards law schools have for their students to turn out well-adjusted practitioners with the competencies and skill sets needed to achieve excellence in their chosen fields. While one legal cultural mantra appears to lament "failing law schools," this Article takes a more upbeat approach, focusing on and offering adaptive structures to better position law schools for success in the future."
Quotes on experiential learning:

"The learning science literature shows that students learn better if they are active rather than passive. They enjoy the experience more as well. Active learning includes the traditional
Socratic method."

"“[E]xperiential education refers to using experience in a directed and specific fashion to achieve certain outcomes from learning theory to transferring knowledge to new situations.”

Important point--"David Kolb viewed active learning as completely compatible with the acquisition of knowledge when he described learning as "the process whereby knowledge is created through the transformation of experience." This notion is consonant with a legal education that is mindful of improving students' legal analytical abilities in order to solve active problems of clients and others."

"The use of experiential learning is especially helpful with the formation of professional identity. Talking about professional identity formation often will be less useful to students than practicing and engaging in identity formation through experience. This is because professional identity is carved from a blending of experience, cognitive reflection, and a directed understanding about that experience."

(Scott Fruehwald)

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