Monday, November 6, 2017

Revisiting The Ninety-Five Theses: Systemic Reforms of American Legal Education and Licensure by Brent E. Newton: Wrap Up

Over my last four posts, I have been revisiting Brent E. Newton's The Ninety-Five Theses: Systemic Reforms of American Legal Education and Licensure, which appeared five years ago.  In this post, I will gauge how much progress law schools have made over the last five years in legal education reform.  My conclusion is disappointing.  I would estimate that at most law schools have accomplished 25% of what professor Newton proposed.

Law schools with the help of the ABA have made great improvements in certain areas.  Law schools have made great strides with transparency.  Now, law students have a good picture about employment outcomes at law schools, as well as other factors that go into choosing a law school. The new ABA requirement that law schools must look at outcomes is a momentous change.

There have not been many changes in Newton's first area--"(1) defects in the law school admissions process."  Too many students still come to law school unprepared for what law school requires.  There are also still many "(2) structural problems resulting from the excessive number of law schools, the ABA accreditation process, the current manner of law school faculty governance, and the current system of ranking law schools."  The excessive number of law schools has resulted in schools fighting over potential students, and some law schools dipping much deeper into the applicant pool than they should.  This problem has been exacerbated by the still bloated federal loan program.  In addition, law school tuition and scholarship distribution remain unfair to those who can afford law school the least.  Finally, the law school governance process has contributed to the slow progress in legal education, and U.S. News rankings are still a major factor in making decisions.

Some schools and professors have made important changes in "(3) defects in law schools’ curricula, pedagogical methods, and assessments of students."  However, many schools have not, and many professors refuse to change their teaching methods.  All professors need to teach their students metacognitive skills, use active learning, do problem-solving exercises, and adopt frequent formative assessments.  A few professors doing these is not enough.

Despite the fact that it is obvious legal education improvement requires a new type of professor, "(4) deficiencies in the professoriate at law schools" continue.  Of course, many professors who have started as traditional law professors have made themselves into 21st-century professors.

There are still many "(5) problems related to legal scholarship and law reviews."  I disagree somewhat with Professor Newton concerning the balance between teaching and scholarship, but I think it is important that teaching and scholarship be equally important for every law professor.

Finally, "6) flaws in the bar exam and licensure process and also in the process of graduates’ transition from law school to the job market" continue.  State bars need to develop bar exams that test what lawyers do in practice so that law schools will teach what is done in practice.  Teaching to the exam is not bad when the exam tests what you want students to know.

My conclusion is that in the last five years law schools have taken only small steps in reforming legal education.  If you consider that much of what Professor Newton advocated was also in the Carnegie Report and Best Practices for Legal Education (both 2007), the results are even more disappointing.

So what can be done.  First, law schools should adopt a mission statement based on Newton's statement "Every major decision made by a law school should reflect a genuine fiduciary commitment to their students – with the ultimate goal of producing graduates who will be competent, ethical entry-level attorneys, that is, graduates who are 'practice ready.'”  Something like "This law school has made a fiduciary commitment to its students that its ultimate goal is to produce graduates who will be competent, ethical entry-level attorneys, that is, graduates who are 'practice ready.'"

Second, law professors should use texts that incorporate the latest in educational research.  There are lots of texts like this out there. You don't have to reinvent the wheel.  Third, law should incorporate metacognitive training into their classes.  Teach students how to think better and make students self-directed learners.  Fourth, professors should use active learning, problem-solving exercises, and formative assessment.

Finally, professors should read about teaching and learning.  If you read only one book, I recommend Susan Ambrose et. al., How Learning Works: Seven Research-based Principles for Smart Teaching (Jossey-Bass, 2010).

(Scott Fruehwald

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