Next year will be year 30 since I graduated from law school. It will also mark 15 years since I began teaching law. What is perhaps most remarkably similar about both experiences is how little curriculum design and teaching methods have changed over the course of this time. Sad to say (and even harder to admit) is that law school is often neither rigorous in its methods nor very engaging the content it offers.
The format of a typical course, from a student perspective, is to read through a punishing amount of turgid prose found in judicial decisions, passively listen to a lecturer present the material, and then write a 100% final exam for which your only feedback is (normally inflated) letter grade. I am not a legal education expert – and of course the starting point for any curriculum change should begin with a review of the literature on how students learn and a cataloguing and analysis of best teaching methods – but my experience leads me to think that a the following five points of reform should be considered.
1. Skills based evaluation
Probably the most indefensible thing that we, as law professors, do is to give 100% final exams. To my knowledge, this is not done in any other academic department or professional school. Two obvious limitations of this method are, first, that it causes unnecessary stress for students and, second, it fails to develop any kind of discernible practical skill. No feedback on what was done right – or wrong – is offered. One less obvious limitation is that encourages passive learning: you need not apply or understand or apply concepts (or even show up to class) until you cram for the exam at the end of term. Evaluation of assignments (even exams) of different kinds during the term – with feedback to students – allows them to develop skills and know their mistakes or weaknesses. To facilitate this added work – for instructors and students – course loads should be lessened. It is better to have 4 more rigorous courses each term than 5 of the kind described above.
2. Modifying the case study method
Learning how to read and understand cases is an important skill. But do we really need to inundate students with so many cases? Why not mix it up with some interesting, well-written pieces that engage student interest? Also (and this is part of a bigger problem) once you teach essential concepts such as precedent and analogy, the law should not be an otherworldly creation understandable only to chosen few. Good arguments are good arguments that are usually based on policy or consequential analysis of different interpretations of law. We need to teach this so that the law is more accessible and less arcane to both the profession and the public. One way to do this is to give examples of good legal writing and argument in our readings and ask students to emulate it through various kinds of written assignments.
3. Avoid obsessions with comprehensive coverage of and within courses
To have compulsory courses beyond first year makes no sense. There is no principled basis for emphasizing one area of the law over others. Indeed, I am not even sure that all first year courses (or at least the ones normally offered) are essential, at least as compared with other subject matter. Within courses, instructors often feel like they have to cover every issue connected with the subject matter. Again, the emphasis should not be on knowledge (which changes) but on skills development. This should also mean that essential skills, such as learning legal methodology, should be presented in a rigorous manner. There is little point to courses like legal process or foundations to law if they are cursory treatments of the concept of precedent or present statutory interpretation as a one class explanation of various maxims of construction. This is a waste of time and energy for all involved. Subject matter should not be a check box item but rather skills should be properly developed.
4. Greater discretion to grade students below the curve
Grading needs to be more rigorous. At my institution, I cannot fail more than 5% of the class nor deviate from a bell curve set in the B range. Marks should not be dictated in this way. If students submit below average work, instructors should not be forced to give a B. Nor, for obvious reasons, should instructors pass students who just do not demonstrate basic competency in a subject matter.
5. Create the right incentives
Frankly, there are no incentives to do any of the above or, as an instructor, instill greater rigor in courses. Students do not generally want more work to do, and instructors do not want to do more marking. There is also a huge first mover disadvantage for anyone who deviates from this model. To mark and grade harder or to create higher expectations in other ways invites student dissatisfaction which often (at least at the institution I work at) leads to criticism, at annual performance time, of one’s teaching via student evaluations. The assumption is that, if you get great student evaluations, you are an effective teacher and, if you don’t, then you are somehow lacking. The incentive then is to fit the mold of general student expectation and in fact, the easier you make it for them, the more you will be liked and rewarded.