Barker, D --- "Best practices for legal education" [2008] LegEdDig 44; (2008) 16(3) Legal Education Digest 53

• Best practices for legal education

---

Best practices for legal education

R Stuckey and others

Clinical Legal Education Association (CLEA), 2007, 287 pp

The fact that this book contains a foreword by Robert McCrate, regarded by many as the doyen of American legal educators, underlines its importance as a major signpost on the roadmap for the future education of lawyers.

In his foreword McCrate quotes Justice Rosalie Wahl who at an American Bar Association Conference as long ago as 1984 asked the question ‘Are we adequately educating students through the content and methodology of our present law school curriculums to perform effectively as lawyers after graduation?’ Justice Wahl then went to say that ‘... until the entire profession had a clearer vision of the answer to the questions, further progress in relating legal education to the needs of lawyers and judges and the advancement of the profession as a client-centered public calling would be thwarted.’

The text therefore incorporates the outcomes of the CLEA’s Best Practices Project initiated in 2001 to ‘develop a statement of best practices. This was then developed collaboratively over the period 2001-2007 under the aegis of Professor Roy Stuckey as both Chair and principal author.

The contents of the book have also to be seen in the context of other developments taking place in North America with respect to reviewing how students should best be prepared for legal practice. The effects of Educating Lawyers, the Carnegie Foundation’s 2007 Study of Legal Education and unpublished drafts of chapters by Judith Wegner, the principal investigator for that Study were also considered by Stuckey and his co-authors.

The most engaging factor regarding this book is the focus and commitment to carrying forward its title of seeking out the best practices for legal education. In fact this is encapsulated in the Introduction which states that ‘The best Practices Project was motivated in large by our concern about the potential harm to consumers of legal services when new lawyers are not adequately prepared for practice. We are also concerned about helping law school graduates to succeed in law practice and to lead satisfied, healthy lives.’

From the outset the reader has to accept that the text represents the outcomes of a project and, therefore reads more like a report than an authored book. There is no pretence to engage in a form of writing which will attract the reader’s attention as to the subject matter. This is not a criticism of its substance but rather a comment on its form.

In Chapter One: Reasons for Developing A Statement of Best Practices the authors acknowledge the difficulties of invoking the term ‘best practice’, because such a term has been regarded as ‘banal and obvious’. However they state that it is because of this very obvious fact that many law schools have not employed the best practices for educating lawyers. The chapter incorporates an analysis as to how law schools are failing their students with regard as to what happens after they leave law school. This may relate to whether it is in their preparation for the Bar Examinations, or in preparation for practice, and also whether this involves their competence or professionalism. Professional competence and its pivotal influence in the professional development of the potential lawyer will prove to be a recurrent theme as the book progresses.

It is in Chapter Two: Best Practices for Setting Goals of the Program of Instruction that the real value of the book is extended to the reader. It is a chapter which is prepared to challenge the current practices of law schools and where they are failing in their duty to prepare their students for practice as new lawyers. It contains invaluable information regarding how a law school should explain its mission and the value of having clearly articulated educational goals particularly with respect to the terms of desired outcomes. In this respect it calls on a variety of other reports. These include the 1971 AALS Carrington Report, the Law Society of England and Wales new framework of desired outcome-focused systems of legal education, the Law Society of Scotland’s working draft of ‘A Foundation Document’ for the future development of professional legal training in Scotland, and the Australian Law Reform Commission’s Report No 89 ‘Managing Justice’ which incorporated some major recommendations relating to Legal Education. Of particular interest to other jurisdictions is the information that the United States Law School Admission Council (LSAC) is supporting a project that could result in a very different Law School Admissions Test (LSAT) from that currently conducted. This is based on the premise that the current LSAT, whilst predicting law school performance, might not be as effective in forecasting success as a lawyer. This chapter is critical of the fact that most law schools in the United State have: ‘Largely ignored the outcomes movement’, and recommends that ‘Legal education should strive to develop the competencies and characteristics of effective and responsible lawyers.’ The chapter concludes with the recognition that lawyers ‘do not do very well at nurturing the quality of their lives’, and expresses the view that many of the problems associated with the adverse health of lawyers have their origins in law schools. Thus legal education must better provide a firm foundation for law students to recognize the importance of a more meaningful and satisfying life within the legal profession.

Chapter Three: Organizing the Program of Instruction; Chapter Four: Best Practices for Delivering Instruction, Generally; Chapter Five: Best Practices for Experiential Courses; and Chapter Six: Best Practices for Non-experiential Teaching Methods, are all concerned with the organization and the delivering of instruction. In this respect the emphasis is on the harmonization of the law program, described as achieving ‘congruence’ in a law schools program of instruction. Law Schools are encouraged to ‘employ educational practices that are congruent with the course-by- course educational objectives in that they facilitate student achievement of the objectives.’ The contents of Chapters Three to Six link into Chapter Seven: Best Practices for Assessing Student Learning. This latter chapter is extremely informative with regard to the effectiveness of assessment and the fact that its main purpose is ‘to discover if students have achieved the learning outcomes of the course studied.’ It comments unfavourably on the fact that assessments in the United States tend to be norm-referenced (based on performance in relation to other students) compared to the United Kingdom where they are typically criteria-referenced (related to how well a student has achieved the educational objectives of the course).

Chapter Eight: Best Practices for Assessing Institutional Effectiveness reflect the emphasis placed in Chapter Three as to whether their evaluation processes are determining if their objectives are being accomplished.

In keeping with the authors’ concern of encouraging a positive attitude by law schools towards improvement in legal education, Chapter Nine: Components of a “Model” Best Practices Curriculum contains a ‘vision of a curriculum that seeks to implement best practices for legal education.’ As the text emphasizes, this is only presented as a selection of ideas for discussion and debate and is only one way for designing an effective program of instruction.

In the Conclusion: The Road Ahead there is an examination on the reasons as to why legal educators have been previously reluctant to embrace reform, and how important it is for law schools to respond to the current challenges for implementing best practices for legal education.

Whilst there are defects in the presentation with regard to the lack of both an Index and Bibliography, these are more than outweighed by the extremely detailed Table of Contents and Executive Summary.

This reviewer endorses the thought provoking contents of Best Practices for Legal Education and recommends it to all readers of the Legal Education Digest.

Emeritus Professor David Barker AM

Editor