Shifting the Focus of Legal Education Back to Just That: Education

I read an article a while ago that has stayed with me titled “Law Schools are Bad for Democracy.”  Given the extraordinary times in which we find ourselves today, I want to be able to disagree.  Law Schools may be one of the few means to save democracy – but not if we keep being distracted[i] by numbers of published article “hits” for rankings or the minutia to which assessments have gone.  In this short piece, I’d like to suggest that we reconsider the broader purpose of legal education and its uniqueness and then rethink some of our priorities for legal education in that context. The perspective we operate from today is the decade-old emphasis on the Big Law gold star standard. [ii]  Isn’t it time to consider what we’ve learned, re-think and make some changes?

We should pay more attention to the bigger picture of legal education, its place in a student’s continuum of education as well as where a legal education may best serve both students and our legal system[iii]. Students come to us with much narrower educational backgrounds than in the past, degreed with any number of concentrations from food or media studies to business, management, or marketing. There are undergraduate concentrations in sustainability. While all these concentrations or majors may help college-graduates enter the job market more quickly, the narrowness of the specializations make our applicants’ education incomplete for law school.  A job-specific specialization in undergraduate school likely means our students lack skills and perspective beyond what was necessary for their specialty.  We have students apply who have never written a full-length paper; have never read – whether in paper or electronically – any of the classics. We have students who have never taken a class in civics or government. When they come to us now, our students need to learn critical thinking not just as a “skill,” but as an integral part of how they think; they need help learning how perspective  informs understanding; and they need help understanding the foundations of law, along with the ability to read and apply precedent as well as rules. Our students need to learn context. Because of limited collegiate exposure and the inward-looking, somewhat impersonal experiences of the social-media generation, our students need to develop an understanding of the people whose disputes were addressed either privately through judicial decisions or publicly through legislation. Further still, our students need to learn to evaluate that foundation for its consistency with democratic values; to critique that foundation by not taking words at face value, and to consider the longer-term consequences to our legal system and society.

It seems to me, given our social times and the state of undergraduate education generally, the need to revisit our focus is imperative. Here are some more specific reasons.

Remember the 2007 Carnegie report and its criticism of law schools for failing to provide law school graduates with enough “skills” for practice? The beginning of the push by Big Law to make sure its incoming associates could do more practical work and thus require less practical firm training?  The year right before the 2008 financial crisis? That’s the year – 2007 – that one of the most recent Senate confirmations to the United States Court of Appeals graduated from law school.  Not quite twelve years ago.[iv]  Right around then, law schools were admonished to keep pace with “trends” in the profession that focused on being employable – already having practice skills and being technology-ready.[v][vi] Part of what makes such judicial inexperience significant to law schools is that in the last two years over 100 new federal judges have been confirmed by the Senate making that number confirmed more than under any previous president. Perhaps even more concerning is that these nominees received more “unqualified” votes than for nominees by all of the previous four presidents combined.[vii] Given the sheer numbers of new appointees alone, though, the role of lawyers in this adversarial system is at an all time high for importance.

But, encouraged by the LSAC,[viii] many law schools still have carved out their niches in narrow areas encouraging students to get a sort of parallel “expertise” that too many under-prepared undergraduate students bring.[ix]  Perhaps like college grads, law school graduates will be able to enter the market more quickly. However, law schools are still criticized for not making students “practice-ready” enough for some law firms; for costing too much, and for not doing enough to help students pass the bar exam[x].  And, to meet the skills and bar scores, law schools have spent hours on “assessments” as though what we really want students to learn is easily quantifiable and measurable. Maybe all of the criticisms are on point, but these repeated criticisms obscure two larger problems – that our students need more perspective and that we may be overly narrow in what we have chosen to “assess.”  Along with undergraduate schools, we have leaned pretty far into assessments.

Even undergraduate school assessment experts have begun to recognize the inadequacies of “assessments.”  In “Harsh Take on Assessment from Assessment Pros” by Doug Lederman,[xi] a group of assessment experts from undergraduate schools found little value in current assessments. The article suggests that efforts to help “’measure’ how much students learn are being used to judge the performance of colleges and universities rather than to help students learn.” The article also suggests that the kinds of information that could be used to help individual students learn and improve the quality of instruction at the university level are not as easily quantified for measurement. For law schools, the problem of using “assessments” as a way to judge law school performance is likely even greater given the multiple layers of accreditation and ranking.[xii]  Lederman cited support in several essays on criticism of assessment, especially “assessment as bureaucratic machine.”[xiii] I really appreciate that phrase:  “assessment as a bureaucratic machine.”

Drawing from the conclusion that assessments designed to measure student learning in a “quantifiable way have been counterproductive,” the article suggests “’backward design’ focused on ‘where do I want them to end up and how do I help them get there.”  That suggestion, though, is followed by repeated criticism of the “’inane’ focus on student learning outcomes[xiv]” as a reminder that reverse engineering ought not to be used to generate yet more narrow outcomes, but to look at evidence of student development and progress – progress that should be seen in light of a school’s identity and purpose.

In “Law Schools Are Bad for Democracy,” Samuel Moyn, professor of law and history at Yale University[xv]  examined how law schools, in his case, elite law schools, struggle to define their own identity and serve the aspirations of their students.  He briefly traced criticisms of elite law schools as serving to entrench social hierarchy. He noted how current criticism suggests law schools remain “factories for mass conversion of pliant subjects into large-firm lawyers” [xvi] while at the same time participation in “strategic legal activism”[xvii] tends to be more of a trend among students.  Prof. Moyn encouraged law schools to re-examine their first-year curriculum that requires learning tenets of judge-made private law and to instead expose students to more public-law courses and help them develop a stronger ability and criteria to critique what they read[xviii].

As part of re-examining law school missions that could be the start of backward design, Prof. Moyn asks: Are law schools supposed to be mostly about educating lawyers to solve other peoples’ private problems? Advance social justice?  And these big picture questions are being raised at the same time sharper criticism is being leveled at the schema used to quantify and “measure” whatever success students have toward whatever those goals are.[xix]

So, if we reverse-engineer from where we want our students – future lawyers and judges – to end up, should we not think more broadly than large law firms as the top priority? Given changing times, should we not reconsider what we prioritize for where our students wind up in their education?  To reverse engineer, evaluate what lawyers bring to our legal system that non-lawyers don’t. At the very least, our students should have knowledge of the law and a broad understanding of all that is our legal system along with their part in that system beyond their experiences as lay people.

What a re-imagined focus might yield for course coverage is complicated and will vary. Everyone may disagree, but I would look at whatever makes having a legal education most valuable – that takes advantage of uniqueness in legal education.  I would imagine a deeper dive into each legal subject putting saving greater breadth of coverage for upper level or additional courses. To allow for deeper examination, maybe reduce the number of “practice” requirements that could otherwise happen on-the-job such as client counseling at the same time still providing some of the more unique, lawyer-only experiences such as trials for context as well as integrated experiences such as in-house clinics that provide depth of knowledge combined with experience and context. Maybe legal writing would focus less on litigation-driven document-drafting; omit the objective memorandum; or focus less on citations because courts have different citation manuals and one really does not need to be a lawyer to prepare citations. Perhaps reconsider school-wide bar passage emphasis on the theory that the law school experience should provide the context and depth as education; bar review courses can, and do, perform the task of skimming the surface of a wide swath of topics in direct preparation for that test. Academic support could focus more on context for understanding law and our legal system rather than teach limited teaching skills like as case briefing.  Given where we are today, I hope re-designing legal education prompts us to focus less on detailed quantifiably measurable skills to ensure assessments are met and more toward striving for student learning that goes beyond what non-lawyers attain.

It seems to me our society would benefit now from law schools reconsidering how we prioritize what our students need to be lawyers, future judges and leaders in the context of the broader picture of our legal system and society. With one hundred new judges and more on the way, the need for well-rounded lawyers to participate in our legal system has never been greater.

 

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[i] Ask who benefits most from those distractions.  You cannot possible think that our justice system benefits by the number of times a law school professor’s article receives a “hit.” There are bots that can generate those hits and downloads.  Johan Sebastian Bach; Henry David Thoreau; Emily Dickinson; Herman Melville; Vincent Van Gogh: these are people who have contributed to western society in incalculable ways but were never famous – didn’t receive the “hits” until after they died.  Counting cites or hits is a distraction.

[ii] https://www.americanbar.org/groups/law_practice/publications/law_practice_magazine/

[iii] There is no doubt that a lawyer’s ability to represent clients out of the gate is important. There is also no doubt that the cost of law school has put many students in the position of searching for the highest paying job.  These are important concerns, just not the subject of this short piece.

[iv] Judge Rudge Rushing obtained a clerkship with then-Judge for the Tenth Circuit Neil Gorsuch.

[v] Five years and one financial crisis later, “Failing Law Schools” hit the market and it criticized schools and faculty for prioritizing research and scholarship over teaching practical skills.

[vi] The book also slammed U.S. News & World Report’s ranking system in part as leading to corrupt practices to get law schools better rankings such as – inflating LSAT scores. Imagine what the author would say about a ranking system that counts what are in essence “hits” on someone’s publications.

[vii] https://news.bloomberglaw.com/us-law-week/trump-picks-more-not-qualified-judges-1

[viii] https://www.lsac.org/discover-law/pathways-legal-career

[ix] Cite Rebecca Flannigan, “The Kids Aren’t Alright: Rethinking the Law School Skills Deficit,” 2015 B.Y.U. Educ. & L.J. 135 (2015).

[x] When bar pass emphasis starts in the first year, I would say the hyper-focus on passing the bar comes close to  missing the point of a legal education.  The Bar exam has problems with its questions; problems as a standardized test, and with emphasis on topics that may or may not be important to future practice. Moreover, as many people have said, the Bar exam is a mile wide and an inch deep.  Our students should have knowledge beyond that surface and the ability to consider and factor much more than rule or rule outlines as they become lawyers.

[xi] Inside higher ed.

[xii] ABA Accreditation for the law school directly; for law schools as part of broader graduate schools Middle States or regional equivalent; evaluation by the larger university.

[xiii] Doug Lederman, “Harsh Take on Assessment from Assessment Pros,” Inside Higher Ed, April 17, 2019. https://www.insidehighered.com/news/2019/04/17/advocates-student-learning-assessment-say-its-time-different-approach at 3-4.

[xiv] Lederman at 5.

[xv] “Law Schools Are Bad for Democracy,” Samuel Moyn, The Chronicle of Higher Education December 16, 2018.  https://www.chronicle.com/article/Law-Schools-Are-Bad-for/245334

[xvi] Id. at 5.

[xvii] Id. at 6.  Other aspects of Prof. Moyn’s article focus more directly on obligations of elite law schools. Because there are more non-elite than elite law schools I have chosen to focus on and adapt concerns to law schools more generally.

[xviii] Interestingly, Prof. Moyn also questions the almost pedestal on which judges are placed. Such criticism seems apt considering the relative inexperience of many new federal judges. Such criticism, though, is important regardless of judicial experience if only because judges are human, too.

[xix]Lederman at 6. This article summarizes events from the Academic Resource Conference by college and universities – not law schools.

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