Recent reports in The New York Times, Washington Post, and other national media shed light on a troubling phenomenon: law firms complaining about the quality of education received by students at top law schools. The concerns are real, although some law professors argue that “neither law students nor law schools can preserve their own future simply by better learning how to serve the corporate interests.” Firms claim that law students are not prepared to perform basic tasks such as drafting contracts, negotiating mergers, and other key features of law practice.
A few law professor bloggers claim the most recent, hotly debated article by David Segal, “What They Don’t Teach Law Students: Lawyering,” misses the point, is hyperbolic, or “part of a neo-liberal ideology developing at the Times.”
However, Segal can hardly be considered the most scrutinizing or only critic of contemporary legal education. A 2007 report issued by the Carnegie Foundation for the Advancement of Teaching was a clarion call in the legal academy as it urged law schools to place greater emphasis on practical skills. To their credit law schools paid attention. More recently, Congress and the American Bar Association have turned their attention to allegations that law schools inflate job-placement data.
But, these issues are complex and not accurately answered by conflations on either side. For example, law schools do a fairly good job of teaching students how to reason, fostering critical thinking, and equipping them with analytical skills, which are not a feature of a typical undergraduate education, but are foundational for the practice of law.
That said, law student performance post-law school, including job placement, has as much to do with law-student performance in law school, and significantly with their preparation prior to law school. Here, grades are not the only factors. By placing the greatest emphasis on standardized testing success in K-12 learning, we emphasize rote memorization rather than real knowledge or engaged learning. This pattern continues with the SAT and LSAT. Thus, what bloggers and critics fail to understand is how law schools are a link in a longer education process.
High tuition is another culprit. Students less geared for the study of law do not voluntarily leave after the first semester as happened in prior generations. Years ago, students could afford to leave. But, the amount of investment (tuition) is different today and turning away from their investment is a tough call, especially in a difficult job market. But, remaining in law school and floating by does not make for good lawyers. Years ago, efforts were made to help students realize this, but not so in current economic times.
Finally, pandering to US News & World Report—the magazine law school deans love to hate—creates other dysfunctions and externalities in how students are recruited, who is recruited, and who is left out. The magazine places high value on LSAT scores in calculating its ranking of law schools, and in turn law schools become complicit in building classes with the highest LSAT scores, but with little if any attention to entrants’ judgment, critical thinking and reasoning, maturity, capacity for the study of law, comportment, and integrity. Northwestern University School of Law is one of the few in the country that has an interview process for its applicants and leans significantly toward admitting students only after full-time work experience.
An Education Week article framed it this way, “it appears that standardized-test results are positively correlated with a shallow approach to learning.” Stephen Dubner of Freakonomics fame, observes: “tests have increasingly come to be seen as a ritualized burden that encourages rote learning at the expense of good thinking.” That assessment is confirmed by empirical data, including a study published in the Journal of Educational Psychology, which characterized the learning of high test performers as “superficially engaged.” The students are not to blame, but it does mean that law teaching now involves shaping learning for a generation that has been encouraged to memorize rather than engage in critical thinking.
A clinical law professor at a top-30 law school recently confided that he has to teach his law students how to write business letters, because they simply lack that skill. His students scored very well on the LSAT, but lack some of the basic skills that high-school students possessed three generations prior. The solution is not to do away with standardized testing, but rather, to understand how the culture of learning at law schools is shaped by multiple dynamics.