Wednesday, November 1, 2017

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

I am continuing my revisit to Brent Newton's 95 theses of 2012. (here) I am still looking at the part on "defects in law schools’ curricula, pedagogical methods, and assessments of students."

28. The typical law school course fails to incorporate active or engaged learning and other proven methods of teaching adult learners.  This is also a key thesis because a mountain of studies have demonstrated that active learning is much more effective than passive learning, such as lectures.  Law schools have added a great deal of active learning to their offerings, but all law school classes should be predominately active learning.

29. The typical law school curriculum today fails to sufficiently develop “learning for transfer.”  “Learning for transfer” is an educational construct that “refers to the extent to which one is able to transfer skills and knowledge from one context to another.”  It is essential that students be able take what they have learned in one area, such as property, and apply it to another one, such as wills.  The other techniques discussed in the 95 theses, such as active learning and problem-solving, help students develop transfer.  I believe that law schools can do much more with this fundamental ability.

30.  Externships and clinical (or equivalent) education should be a graduation requirement.  Has this been done at your law school?

35. There should be a mandatory law school course on legislation and administrative law.  This one should be obvious because all lawyers deal extensively with statutes and administrative law.  Still, most law schools do not require these courses.

38. There should be a mandatory law school course, or module, on factual investigation and development.  Lawyers don't just deal with the law in a vacuum, they deal with facts.  Lawyers need to know how to investigate facts, understand them, and apply the law to the facts.  This is done to a certain extent in legal writing courses and other skills courses, but it needs to be done much more.

39. Courses, or modules, on the practical side of running a law practice (as a business) should be common in law schools’ curricula.  Many law schools offer these courses, but all law schools should offer courses on how to run a law office.

42. Virtually all law school courses should be professional responsibility courses.  I couldn't agree more, although I would phrase it as "all law school courses should help students develop their professional identities."  Although there are a few scholars working on this, this third apprenticeship from the Carnegie Report has not received a lot of emphasis over the last ten years. I have written a book that law students can use to help develop their professional identities, Developing Your Professional Identity: Creating Your Inner Lawyer (2015).

43. Virtually all doctrinal courses in law schools should be legal writing courses.  I also strongly agree with this one.  This one has not happened yet, but it could add significantly to law students' education.

44. Virtually all doctrinal courses in law schools should be experiential or skills courses.  I also strongly agree with this one.  This one hasn't happened either.  It is not that hard to incorporate problem-solving or drafting exercises into a doctrinal course.  Students learn the doctrine much better when this is done.

45. Academic freedom should not be used as a justification to give law professors carte blanche to teach courses in the manner that they see fit.  I think I better not comment on this one.

46. The typical law school course has an excessive student-teacher ratio, particularly in first-year courses.  This one is still true today.

47. The near ubiquitous use of commercial outlines by law students in core courses demonstrates that many students are not being effectively taught the material and are not engaged in class.  Just let this one sink in.  It is very troubling.

48. The Socratic method should not be the primary pedagogical method used in law school.  I believe that law teachers should continue to use the Socratic method, but that they should incorporate other techniques such as problem-solving, formative assessment,  and reflection.  Of course, many law professors today still overuse the Socratic method.

51. The traditional end-of-semester written exam—as the primary or sole determinate of law students’ grades—is a woefully inadequate assessment tool.  I have mentioned the importance of formative assessment several times above.  While some professors have started to use it in their classes, the majority don't.

52. In addition to assessments in each course, students’ competencies should be assessed on a global basis and at discrete points in law school.  The ABA has now required law schools to measure outcomes.  How this will be implemented remains to be seen, but what I have read so far is very encouraging.  This may be the most important development in law school reform over the last few years.

This finishes my revisit to Newton's theses on "defects in law schools’ curricula, pedagogical methods, and assessments of students."  You can find the ones I did not cover in detail here.  I shall cover some of his other theses in later posts.

(Scott Fruehwald)

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