Friday, March 20, 2020

ABA Commission on the Future of Legal Education, Principles For Legal Education and Licensure in the 21st Century: Principles and Commentary: Part I

As I mentioned last night, the ABA Commission on the Future of Legal Education has issued a new report on legal education: Principles For Legal Education and Licensure in the 21st Century: Principles and Commentary.  I have now had the chance to review this Report, and I think it is a well-written, thorough study with many important suggestions for reforming legal education.

Today, I will discuss the Report's eight systematic obstacles to reforming legal education.  As we have said countless times on this blog, legal education is entrenched in out-dated methods, being very reluctant to change.

1.  ENTRENCHED SERVICE DELIVERY MODELS. The profession holds onto its closed system of traditional, and expensive, service delivery models, to which the exclusive path to entry is provided by our current, and expensive, education and licensure system.

Comment: Legal education and the legal profession often cling to models that date back to the nineteenth century. Just consider the continuing use of the Socratic/case method as the major teaching tool in legal education.  As I mentioned in my book, How to Teach Lawyers, Judges, and Law Students Critical Thinking: Millions Saw the Apple Fall, but Newton asked Why (2020), law schools need to reform the delivery of legal education by using critical thinking in connection with the use of the Socratic method and by adding other teaching approaches, such as using the problem method, teaching metacognitive skills, and employing frequent formative assessment with detailed feedback.

Similarly, other aspects of the legal profession need to be changed.  There needs to be more avenues to practicing law, such as allowing limited licensure in routine areas, such as writing wills, uncontested divorces, and landlord-tenant disputes.

2.  ONE SIZE FITS ALL EDUCATION MODEL. Law schools use a relatively invariant model that remains wedded to 20th-century curriculum and pedagogy, while shortchanging development of the competencies needed today and in the future. We encourage students to focus on historical rites of passage, and frequently to be resistant to change. We do not do enough consistently to teach them to learn how to learn for a long career in a rapidly transforming world.

Comment: Law school has been a one size fits all model since the nineteenth century, and it has worked very well--until about the last fifty years.  In the contemporary world, lawyers need to be highly-educated specialists.  One idea is that some law schools offer true specialties.  Law schools lack the resources to offer more than one or two true specialties.  For example, a law school could specialize in business law, where everything would focus on preparing lawyers for helping business clients.  Other law schools could specialize in law and technology, while other law schools could specialize in criminal law.

I also think it is a good idea to have some undergraduate requirements for entry into law school with law schools mostly setting their own requirements.  The requirements for all specialties should include minimal competence in writing and technology. Then, law school could add requirements in their specialties.  For instance, a school specializing in business law could require a minimum number of undergraduate courses in business.

Finally, as I stated under no. 1, law schools need to modify how they teach the law.  In particular, they should concentrate in the first year on developing their students' cognitive reasoning, analytic, and application skills.  Once students have the basic cognitive skills, they can use those skills with any legal task.

3. COUNTERPRODUCTIVE EDUCATION STANDARDS.  We regulate law schools in ways that are myopic, outdated, and excessively one-size-fits-all. Ordinally ranking the multitude of law schools exacerbates those characteristics. All of this affects how schools prioritize their resources. It diverts their focus from anticipating the effects of technology, globalization, and mobility; experimenting with new educational models; and adapting to changing professional requirements. It also encourages incrementalism.

Comment:  The U.S. News law school rankings have been a major impediment to legal education reform for many years because it forces law schools to adopt the one size fits all model discussed above.  Why should a commercial publication dictate what law schools emphasize?

4.  EXCLUSIVE USE OF A GENERAL LICENSE MODEL.  Our profession currently both over- and under-regulates. On the one hand, too many services unnecessarily require a general law license that necessitates seven years of post-secondary education and subsequent completion of an expensive licensing process. On the other hand, certification is not required for many critical and complex specializations.

Comment: I discussed this under no. 1 above.  In addition, I agree with the last sentence.

5.  FEAR OF TECHNOLOGY.  Technology is all too often viewed as a danger rather than as a force to enable transformative change. It offers tremendous opportunities to enhance service and efficiency, broaden client bases, and improve access to those in need of legal services.

Comments: I have also discussed technology above.  Technology has become an essential part of legal practice, and law schools need to find a way to deal with it.  As I mentioned above, law schools could require some technology training before entering law school.

6.  OUTDATED BAR EXAM.  The bar exam tests both too much and too little. On the subjects it tests, success depends on extensive and granular rule memorization and application. At the same time, it fails to test key skills central to the practice of law. Given its gatekeeper role and influence on legal education, it thus discourages curricular innovation and inhibits the imagination of what a legal professional will be in the 21st century.

Comment: We have discussed the problems with the current bar many times on this blog.  Simply stated, it does not test what lawyers do in practice.  It mainly test what lawyers learned at Harvard Law School 100 years ago.

7.  MISGUIDED APPROACH TO DISRUPTION.  Our profession’s approach to disruption is both under- and over-inclusive. On the one hand, we act as if the question is about what is happening to lawyers, while not understanding the broader context, the blurring of boundaries, and the impact on clients and society. On the other hand, we act as if everything must change, rather than exploring how we can strategically manage for both stability and change.

Comment: No doubt, law schools are resistant to change.  They need a strategic kick in a certain part of their anatomy.

However, change for change's sake is not the solution.  There is a large body of general education reform research out there.  Law professors and administrators should be reading it.

Here is one example of harmful reform: using learning styles in teaching.  Researchers disproved learning style theory over ten years ago, but some law professors still use it in their teaching.  This practice actually harms students! (here)

8. DEEP-ROOTED ADHERENCE TO THE STATUS QUO. In our closed competitive system, entrenched institutional governance and culture are common across educators, regulators, and the profession. The system prioritizes preserving the status quo, rather than taking bold collective risks to meet the challenge of a transforming world. This inclination to minimize change further stymies efforts to improve inclusivity.

Comment: This relates to the other seven obstacles above.  In fact, I would say that this is the number one obstacle to law school reform.

In sum, the ABA Committee Report has done a very good job of recognizing the obstacles to law school reform.  In my next post, I will discuss some of the Report's ideas for improvement.

(Scott Fruehwald)

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