Our Own Worst Critics

August 28th, 2015 / By Deborah J. Merritt

The journal Science just published a study reporting that top scientists were unable to reproduce the results claimed by 75% of social psychology studies and 50% of cognitive psychology ones. All of the studies appeared in top-ranked journals.

Some scientists, I’m sure, are reeling that their work has been challenged. But I like the attitude expressed by Brian Nosek, a prominent researcher who led the reproduction study. “Scepticism is a core part of science,” he told journalists, “and we need to embrace it. . . . We should be our own worst critics,”

I would say the same about legal education. Skepticism is a core part of our method. We teach students to question their assumptions, as well as the precedents they read. At faculty workshops, we question the presenter’s results and offer competing theses. Practicing lawyers must learn to be even more skeptical than we are; clients shade the truth, witnesses lie, and opposing lawyers omit relevant facts. Skeptical questions are the foundation of our profession.

Yet we are remarkably resistant to questions about legal education. Suggestions that our curriculum focuses too heavily on appellate practice; that education in other practice skills would improve client representation; that we tout big firm lawyers (and their salaries) more eagerly than small ones; that tuition and tenured faculty salaries have increased markedly, while teaching loads have fallen; that legal scholars devote almost no time to studying the delivery of legal services and ways to streamline those services; or even that the hallowed Socratic method may not be quite as engaging to students as it is to professors–these and other criticisms meet waves of resistance rather than eager discussion. Note that I say “discussion” rather than “acceptance.” I am inclined to agree with the criticisms noted here, but I am amazed by the reluctance of some scholars even to entertain these questions.

Legal educators are finally making progress; we are more willing to consider the fact that legal education might–just might–be capable of improvement. It’s sad, though, that this new openness has stemmed primarily from market forces rather than an innate commitment to improvement. Ten years ago, it was hard to get many educators to discuss even the possibility of flaws in legal education. Only after remarkable downturns in jobs and applicants have we become receptive to reflection.

That reflection has led to promising innovations, but our work has just begun. We need to know much more about the impact of those innovations, as well as about some of the traditional classroom models they have replaced. We need to continue learning about the work our graduates do and the legal needs that remain unmet. State supreme courts have given us the virtually exclusive power to choose future lawyers, along with the responsibility of providing their foundational education. It’s a weighty responsibility that will bring it’s own reward if we do it right.

Law schools don’t need a $1 million communications effort to improve our public image. We need a genuine commitment to identifying and solving problems within legal education and the profession. If we have an extra $5,000 per law school, I suggest we spend that money on initiatives that will inform and improve legal education–not on PR. Here are just a few suggestions:

1. Evaluate the outcomes of legal incubators for both new lawyers and clients. Do these initiatives succeed in launching new lawyers into practice? Are they able to address low- and moderate-income needs?

2. What other practice models show promise in matching lawyers with under-served clients? individual schools–or a national organization like the AALS–could offer seed grants to scholars who are exploring alternative structures for the delivery of legal services. Which structures show the most promise for closing the justice gap? What kind of work do lawyers do within those structures? How can law schools best educate lawyers for those roles?

3. Sponsor faculty workshops that will educate faculty on what skills like interviewing, counseling, fact gathering, and negotiation really entail. I was amazed to read last night that some faculty think that these are “motor” skills rather than “thinking” ones. We need to educate faculty about these essential skills, which are as important to law practice as appellate-style reasoning. These skills also require as much “thinking” as any other work in law school.

4. Create workshops that will teach practitioners how to educate new lawyers. The conventional law school classroom offers a poor model for workplace education. Too many senior lawyers try to emulate Kingsfield, barking questions and criticisms rather than giving guidance. Clinical professors know how to educate new lawyers while engaged in active client representation. With a modest amount of funding, they could educate practitioners in those pedagogies.

Do good work, and the good press follows.