As usual, I end the year with my choices for the best legal education articles of 2019. Please feel free to mention additional 2019 articles in the comments. I have also added a new feature this year: Some Thoughts at Year's End in which I survey the progress of legal education reform since 2007.
Best Legal Education Articles of 2019
Some Thoughts at Year's End
There has been a great deal of progress in legal education since the legal education reform movement began in earnest in 2007 with the publication of the Carnegie Report and Best Practices. The last twelve years have seen many reforms at some law schools and the publication of many texts and articles on legal education. However, many law schools and professors have not gotten the message about legal education reform, instead using traditional, ineffective methods of teaching and learning. Legal education reform still has not penetrated to the core of legal education.
The Carnegie Report designated three "apprenticeships" for educating today's lawyers: 1) the "cognitive apprenticeship," which focuses on expert knowledge and modes of thinking, 2) the "apprenticeship of practice," which educates students in "the forms of expert practice shared by competent practitioners," and 3) the "apprenticeship of identity and purpose," which "introduces students to the purposes and attitudes that are guided by the values for which the professional community is responsible." The Report’s authors concluded that law schools did a good job with apprenticeship 1, but not with 2 and 3.
Twelve years later, many schools are doing a much better job with their offerings of apprenticeship 2. However, looking at law school websites and 509 Reports, many law schools are still way behind in offering skills courses. More importantly, it appears that many law professors have continued using traditional teaching methods, which date back 150 years, especially in first-year courses. First-year courses must teach students about the cognitive details of legal reasoning, analysis, and argument, and this can’t be done by just using the Socratic method. A complete cognitive education for law students must include frequent problem-solving exercises, formative assessment, and the teaching of metacognitive skills.
The situation concerning the third Carnegie apprenticeship, the apprenticeship of identity, is particularly troubling. The teaching of professional identity is not the same as the teaching of legal ethics. Legal ethics teaches the rules of ethical conduct in basically the same way as any other ruled-based course. On the other hand, professional identity is "what it means to be a lawyer in today's world." (Roberto L. Corrada & David Thomson, Report on the 2012 Conference and Introduction to the 2013 Conference: The Development of Professional Identity in Legal Education: Rethinking Learning and Assessment, at *2) It "is the way a lawyer understands his or her role relative to all of the stakeholders in the legal system, including clients, courts, opposing parties and counsel, the firm, and even the legal system itself (or society as a whole)." ( Martin J. Katz, Teaching Professional Identity in Law School, 42 Colo. Lawyer 45, 45 (2013)) As two law professors have stated, "students must graduate with a sense of their own professional identity that will guide them to conduct themselves in a manner that conforms to the customs, values, and mores of the legal profession." (Alison Donahue Kehner & Mary Ann Robinson, Mission: Impossible, Mission Accomplished or Mission: Underway? A Survey and Analysis of Current Trends in Professionalism Education in American Law Schools, 38 U. Dayton L. Rev. 57, 59 (2012)). In sum, professional identity is personal; it involves the inner person (the moral compass).
While there is a small group of scholars who strongly advocate the teaching of professional identity, an examination of law school websites and other materials indicates that only a few law schools teach professional identity courses. A professional identity course should be mandatory for all law students.
A recent article in the New York Times on the teaching of reading in Mississippi public schools demonstrates the difficulties in getting proven educational reforms adopted. (There Is a Right Way to Teach Reading, and Mississippi Knows It) The articles focuses on the reasons behind gains in reading scores in Mississippi. “The state’s performance in reading was especially notable. Mississippi was the only state in the nation to post significant gains on the fourth-grade reading test. Fourth graders in Mississippi are now on par with the national average, reading as well or better than pupils in California, Texas, Michigan and 18 other states.”
Why did this happen? “Mississippi has been doing something notable: making sure all of its teachers understand the science of reading.” Legal researchers had demonstrated that there was an effective method for teaching reading. “The simple view model was proposed more than 30 years ago and has been confirmed over and over again by research. But a study in Mississippi several years ago showed that teachers were not being trained to use this model and that many professors and deans in colleges of education had never even heard of it. Now, through workshops and coaching paid for by state taxpayers, teachers in Mississippi are learning about the simple view and other key takeaways from the science of reading.”
The article also points out that the correct approach to reading helps students from disadvantaged backgrounds the most. “Research suggests that about 40 percent of children will learn to read no matter how inadequate the instruction. What about the other 60 percent? The lack of skills instruction can be a disaster for them, especially for pupils from low-income families.”
The N.Y. Times article concluded. “And when children are taught in ways that line up with the science, they can learn.” The same is true for law students.
For more on the above, see my books, How To Grow A Lawyer: A Guide for Law Schools, Law Professors, and Law Students (2018) and Developing Your Professional Identity: Creating Your Inner Lawyer (2015).