Stuckey, R --- "Best practices or not, it is time to re-think legal education" [2010] LegEdDig 35; (2010) 18(3) Legal Education Digest 13

• Best practices or not, it is time to re-think legal education

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Best practices or not, it is time to re-think legal education

R Stuckey

Clinical Law Review, Vol 16 No. 1, 2009, pp307–320

In the preceding article, Professor Ira Robbins takes the position that it was improper usage to include the term ‘best practices’ in the title to Best Practices for Legal Education and, furthermore, that it is misleading and inappropriate to use ‘best practices’ at all when thinking and writing about legal education. I disagree with his conclusions.

Our debate is about the title to the book. It is not about the merits of the educational practices encouraged in Best Practices for Legal Education. Professor Robbins makes it clear that his article is not a book review.

I do not think it is important whether either of us is right or wrong about the appropriate use of the term ‘best practices’. Debating the appropriateness of the title of the book and whether law teachers should be discussing ‘better’ practices instead of ‘best’ practices is distracting. It diverts our time and attention from working to improve legal education. The urgent importance of making significant, fundamental changes to legal education in the United States is well documented, inter alia, in the report on legal education by the Carnegie Foundation for the Advancement of Teaching and in an article by Ed Rubin that examines the history and philosophy behind the current approach to legal education in the United States.

The central tenet in Professor Robbins’ article is that it is inappropriate to try to describe educational practices in law schools or elsewhere as ‘best practices’ irrespective of how good or effective they might be.

I believe his analysis is incorrect. All accredited law schools share common goals, there is only one superior method to achieve law schools’ objectives, and law schools can evaluate the quality of their programs of instruction according to some standard and could objectively verify their success with different and better metrics.

As we said in Best Practices for Legal Education, law teachers will never ‘be able to reach universal agreement about the specific knowledge, skills, and values that law schools should teach if for no other reason than the vastly diverse practice settings in which our graduates work’. We went on to say, however, that ‘[t]here are some fundamental things about which we should be able to agree, however, and we should not refrain from trying to improve legal education simply because the task is difficult’.

One of the things that law teachers should be able to agree about is the overall purpose of a legal education. At its core, legal education is a professional education, and part of the mission of every law school is to prepare its students to enter the legal profession. It is why law schools exist.

The accreditation standards of the American Bar Association (ABA) require law schools to prepare their students for entry into the legal profession. Each ABA-approved law school must ‘maintain an educational program that prepares its students for admission to the bar and effective and responsible participation in the legal profession’

The Carnegie Report also endorses the responsibility of a law school to educate its students for the practice of law, regardless of other missions that a law school may choose to pursue. With specific regard to legal education, the Carnegie Report explains that the fundamental purpose of professional education should not be to serve a sorting function but, rather, to produce ‘as many individuals proficient in legal reasoning and competent practice as possible’.

It is not the function of law schools to develop professional expertise fully, no more than it is to teach all the law that students will need to know to practice law effectively. Law school is only one part of the continuum of learning that is required to develop professional expertise.

The specific practice contexts for which law schools are preparing their students might vary, and this should be reflected in their curriculums, but the basic objectives of legal education should be the same in every law school. Law teachers should also be able to agree about some more specific educational objectives for legal education. In this respect, we should keep in mind the work of the MacCrate Task Force. Its report includes a statement of the fundamental skills and values that law schools should teach. If the broad spectrum of lawyers, judges, and academics who served on the MacCrate Task Force could unanimously agree that this statement was a fair description of the skills and values that law schools should teach, it should be possible for law teachers and other members of the profession to agree on a range of specific objectives for legal education.

In Best Practices for Legal Education we recommend specific outcomes that law schools should seek to achieve. We include a statement of twelve core general characteristics and abilities that entry level lawyers should have on day one in practice. We also provide a definition of professional competence, and we provide a more detailed description of the knowledge, skills, and values of effective, responsible lawyers. I think it is difficult to argue that any of the outcomes we propose should not be among every law school’s objectives, but we invite and encourage debate about this. If it turns out that it is impossible for law schools to achieve these outcomes in three years, then law teachers need to make this clear to bar admissions authorities and begin a dialogue to determine exactly what responsibility law schools bear for preparing students to practice law.

I submit that Professor Robbins is incorrect in concluding that Best Practices for Legal Education

fails to meet his first criterion. Law schools do have common goals.

Professor Robbins contends that there is no single way to achieve any agreed upon goal that is clearly superior to all others and, therefore, Best Practices for Legal Education fails to meet his second criterion. Again, I disagree. Best Practices for Legal Education describes a clearly superior way to achieve the shared educational goals of law schools: (1) educational institutions and individual teachers should have a clear understanding of what they want students to learn; (2) the curriculum should be organised to deliver instruction in professional knowledge, skills, and values in a congruent, progressive, and integrative manner; (3) teachers should select teaching methods that will achieve their educational objectives as effectively and efficiently as possible; (4) teachers should employ chosen teaching methods as skilfully as possible; and (5) teachers and institutions should evaluate the degree to which they are succeeding.

Professor Robbins’ third criterion is that ‘best practices must be objectively verifiable in relation to all other current or previous practices’. I believe that the superiority of the principles described in Best Practices for Legal Education can be demonstrated ‘according to some standard’ and can be objectively verified.

One type of standard commonly used as an evaluation tool is opinion.

Probably every law school asks its students for their opinions of each teacher and each course (typically before grades are posted). The degree of importance given to student evaluations varies from school to school, but they are considered. I think law schools should also ask students for their opinions of their overall educational experiences after each semester of law school (before and after grades are posted) and following their entry into the legal profession. Perhaps the ABA or the Association of American Law Schools should facilitate this by developing model procedures and forms for surveying law school graduates about their law school experience. It would also be useful to gather data in a uniform way from graduates about their preparation for practice. For that matter, why not create uniform procedures and forms for conducting peer and student evaluations of teachers and make the results and the teachers’ responses public?

If a law school (or the ABA) really wants to know if its graduates are prepared for law practice, that is, if they ‘are aware of what it takes to become competent in their chosen domain’ and equipped ‘with the reflective capacity and motivation to pursue genuine expertise’, the school should seek the opinions of the employers of its graduates.

A law school can also obtain opinions about the quality of its educational program from people who are not associated with the school. The ABA sends site inspection teams to visit accredited schools every seven years or less. The reports of these teams are based on ABA Accreditation Standards and the opinions of experienced law teachers, judges, practitioners, and university administrators.

Let us now consider how one might objectively verify the quality of an educational program.

The Quality Assurance Agency for Higher Education (QAA) was created in 1997 to ‘provide an integrated quality assurance service for UK higher education’. The QAA helps schools to define clear and explicit standards including frameworks for higher education qualifications and benchmark statements in a range of subject areas, including law. The QAA also conducts audits to determine if schools are providing education of an acceptable quality and at an appropriate academic standard. The results of these audits are posted on the QAA’s website.

In 1999, the QAA developed benchmark standards for law schools that established certain abilities and skills that a student should demonstrate before being awarded a law degree. These are minimum standards that apply to all law schools. Each school is free to set higher benchmarks for its students.

The development of benchmarks for legal education in the United States is a project I would endorse. Many of the principles in Best Practices for Legal Education are potential benchmarks.

For many years, the ABA has looked at graduates’ pass rates on bar examinations as an indicator of educational quality. I do not believe that raw bar pass rates tell very much about the quality of an educational program. The data that I would like to see are bar pass rates that have been analysed to determine whether any value was added by the school.

If law schools are interested in learning about their effectiveness in teaching professional values, they could collect data about the percentage of each class of students who are publicly sanctioned or reprimanded for ethics violations. It would not be a perfect measure, but it might provide some useful insights into the seriousness of a school’s efforts to teach professional values. Similarly, law schools could gather and share data about the nature and amount of pro bono work their former students are doing.

Professor Robbins argues that there are lots of goals and no way to verify progress, which leads inevitably to inaction. In this way Professor Robbins falls into a perennial trap: he lets the perfect (or the ‘best’) be the enemy of the good.

Before law teachers can begin thinking about how to evaluate the quality of their educational efforts, however, they must clearly articulate the educational objectives of their courses and their overall programs of instruction. Unfortunately, as Professor Robbins reports in his article, for many law teachers ‘it can be difficult to explain what exactly a law school does’. This is not a point of pride; it is an embarrassment. All law teachers should be able to articulate clearly what their law schools do and what they seek to accomplish in each of their classrooms. As we explain in Best Practices for Legal Education, setting clear educational objectives has to be the first step in reforming legal education. Only when law teachers know what they are trying to accomplish can they begin to consider how to measure their success.

So, who is right? Was it improper usage to include ‘best practices’ in the title of our book? Should we refrain from using the term ‘best practices’ in discussing educational reform? I do not think so, but I also do not think it really matters to many people.

There was some feeling as we moved forward that our claim to be describing best practices was perhaps a bit brazen or presumptuous. Although we had some qualms about the title, our charge was to develop a statement of best practices, and we referred to the project from the beginning as the Best Practices Project. So ‘best practices’ remained in the title. In hindsight, I think the most appropriate title would have been, ‘Principles of Effective Educational Practices for Law Schools and Law Teachers’. That title would probably not have fit on the binder, however.

One of the primary reasons for undertaking the Best Practices Project was to encourage honest discussion and debate about legal education among law teachers and other members of the legal profession. This should be a global discussion. The same principles of effective educational practices apply to every law teacher in the world. Although the details of legal doctrine differ from country to country, the tasks that lawyers perform and the skills and values that determine their success are essentially the same in all countries.

Professor Robbins quarrels with the statement in Best Practices for Legal Education that ‘most law schools do not employ the best practices for educating lawyers’. The fact that law schools do not employ the best practices for educating lawyers has been documented by every study of legal education conducted during the past 30 years, most recently by the Carnegie Foundation for the Advancement of Teaching and by Vanderbilt Dean Ed Rubin in publications that are coincidental contemporaries of Best Practices for Legal Education. As far as I know, no one has published anything recently in defence of the current practices of law teachers in the United States.

As a group, law teachers in the United States are intelligent and well-intentioned. I assume that most would like to be excellent teachers, and they would like for their students to become excellent lawyers or judges.

The problem is that they are just beginning to learn what it means to be excellent teachers. Without any education or training about learning theory or teaching methodology, law teachers in the United States tend to teach their students the same way they were taught in law school.

In a nutshell, the shortcomings of legal education in the United States today are largely the result of law teachers’ ignorance about effective educational practices and their unquestioning adherence to tradition. As long as everyone was approaching the education of law students in the same way, there was no incentive to explore alternatives. Today, rapidly growing numbers of law teachers are beginning to recognise the need for institutional and individual transformation, including the need to acquire better understandings about teaching and learning.

Best Practices for Legal Education does not answer every question or explain how to resolve all of the issues that legal educators should be trying to address. It simply provides some basic information about learning theory and teaching methods that might assist law teachers who want to improve the quality of legal education at their institutions or in their courses. It does not mandate anyone to do anything. Hopefully, the existence of the book will help make the transition from the past to the future easier and quicker. Perhaps the next version of the book can be titled ‘Best Practices in Legal Education’ rather than ‘Best Practices for Legal Education’.