The why of law school

I took piano lessons as a kid. I didn’t hugely enjoy them, not least because of the timing — 10:00 to 11:00 Saturday morning was primo cartoon time — but the instructor was my aunt and it was kind of expected that all the nephews and nieces had to do their time. Anyway, I didn’t stick with it, and as a result I now can’t play much more than Chopsticks. But the experience did allow me to appreciate things like 2 Pianos, 4 Hands, as well as this opening to a recent blog entry by Steve Friedland at Best Practices for Legal Education:

Imagine taking a piano lesson with a teacher who asks questions, but gives little on-the-spot feedback. Imagine the teacher returning week after week, stating after each lesson, “I will give you feedback after our big, end of the session recital.” Imagine the recital occurring and the teacher taking notes and walking away. One month later, in the mail, you receive your feedback, a single letter grade, B. That is the way we traditionally do feedback in legal education, including only a single summative final examination as the sole evaluation and feedback mechanism.

It’s remarkable that so many law school courses are still graded on a 100% final exam and nothing else, reducing an entire semester’s worth of readings, lectures and notes to a single three-hour writing exercise. I remember those exams vividly: cram for several days beforehand, unload everything you can remember in a hand-cramping frenzy, and forget most of it immediately afterwards as you crammed for the next one.

You can call that a lot of things — a rite of passage, a hoop to jump through, a waste of time — but you’d be hard-pressed to call it a good way to learn and retain knowledge. With law faculties following the lead of other disciplines and emphasizing skills other than teaching (e.g., research and publication), the quality of the pedagogical experience doesn’t figure to become any more of a top priority.

Now, that said, does it really matter? Law schools have always been teaching this way, and the legal profession hasn’t collapsed in a smouldering heap yet. One way or another, the profession takes the graduating law student and molds him or her into a competent professional who can apply the principles he or she recalls from school. And who could blame professors for choosing one fell swoop of an exam over the backbreaking amount of marking and evaluation required by a more intense approach, especially when they’re under research and publication pressure?

And for that matter, it’s not like law students are agitating en masse for multiple assignments and detailed feedback processes. It’s no fun cramming for exams, but it’s even less fun turning in four 1,500-word papers and two group projects while attending enough classes to score decently on participation. In fact, if one were so inclined, one might well conclude that many students are just fine with the 100% exam process, because what they’re really interested in isn’t the maximum learning experience, but the solid grade at the end of the semester and the law degree at the end of three years. And therein lies the why of law school.

Granted the several exceptions you can doubtlessly locate, many law schools seem to have settled pretty comfortably into their role as credentialing bodies for new lawyers. Most of the quality control is done at the front end, in admissions: it’s the rare student who flunks out of law school, and not too many come out with a bunch of C’s and D’s on their transcripts either. Law schools provide three years of basic training in legal analysis, enough to satisfy most observers that an LL.B. or J.D. after your name certifies your foundational knowledge of the law. No one involved in the process has been asking for more than that, which is why we’re where we are today.

Now, however, I can sense some pushback coming from the practising bar, which is paying a lot to hire new legal talent and to train it on the job. (The large corporate clients, which are effectively footing the bill for young lawyers’ post-call training, aren’t thrilled with the status quo either.) We’re nearing a point of consensus that lawyers don’t start off their careers properly prepared to offer legal services to the public, in areas ranging from practical skills to business acumen to client relations to ethics and professionalism. Law schools don’t have all the responsibility for new lawyer training, but they have a lot, and they charge a premium for their services. They’re going to be the first stop along the road to legal education reform.

So your average law school is in a bind. If it is, effectively, a credentialing institution for the practice of law, then it’s going to have to accept more intervention from the bar regarding what it should teach and how. But if it is, as many of them insist, first and foremost an independent center of academic excellence in the law and legal thinking, then it can’t continue to get away with stuff like 100% final exams, minimal student feedback, and tuition fees beyond the reach of future non-practising lawyers.

Law schools have had it both ways for a while now, but they’ll soon have to choose one or the other. I’m pretty sure I know which way most of them will go.

(Note to regular readers: I’ll be out of town for a few days and likely unable to post anything new till Thursday.)

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