Derek Bok on Legal Education

October 7th, 2013 / By Deborah J. Merritt

Derek Bok served as dean of Harvard Law School from 1968-1971, a time of great challenges in higher education. Bok then took on the Harvard presidency, leading that institution for twenty years (1971-1991) with a reprise as interim president in 2006-2007. Over the years, Bok has drawn upon these experiences–together with prolific research–to write several insightful books on higher education.

Bok’s most recent book, Higher Education in America, offers a thoughtful overview of the problems and opportunities that face higher education. Bok neither glorifies universities nor deplores them; he offers pragmatic insights on a wide range of issues. Law schools receive a full chapter of Bok’s attention, and it is a chapter well worth reading. Bok does not plow new ground; he borrows from other scholars of legal education and the profession. Given Bok’s extensive experience and reputation in higher education, however, it is worth noting the points that he stresses.

[All quotes in the following sections are from chapter 13 of Higher Education in America. Working from an e-reader, I can’t give more specific page citations.]

The Employment Challenge

Bok is blunt about “the most serious problem facing law schools today.” “The crux of their predicament,” Bok states, “is that they are currently graduating far more students per year than the annual number of new legal jobs that are predicted to materialize through 2018 as a result of retirements and new openings.” The shortfall is not new: Bok notes that the economy produced 275,000 job openings for lawyers between 2000 and 2010, while “400,000 students graduated from law school.” During the current decade, he suggests, the gap will be even larger.

Some of these graduates, Bok acknowledges, will not want to practice law. “But enough of them will, based on past experience, to leave many of them unable to find a legal position even after the current recession ends, let alone a job with a high enough salary to allow them to repay their educational loans.” The inevitable result, Bok writes, is the one we are witnessing: college students are responding to the “dismal job market” in law by “abandoning their plans to enter law school.”

Bok makes short work of pleas to help students by liberalizing loan repayment programs: “such measures merely shift the financial burden to taxpayers while doing nothing to curb tuitions or to deter students from incurring excessive debts in the mistaken belief that they will somehow succeed in finding one of the coveted highly paid positions in a large law firm.” He also criticizes the inter-school competition that has “inflated faculty salaries, increased tuitions unnecessarily, and massively shifted financial aid from need-based grants to merit scholarships.”

The latter trends, Bok notes, have affected higher education more broadly; he criticizes inflated tuition and the decline of need-based scholarships throughout the academy. Law schools, however, seem to have increased tuition and reduced need-based aid more than other academic units–and are now suffering from a particularly severe employment crunch.

Pedagogy

In matters of pedagogy, Bok suggests that law schools may have been victims of their own early success. “Among the major professional schools, they were the first to discard the traditional lecture for a more active form of learning.” The case and “Socratic” method proved remarkably effective at introducing students to legal principles and critical thinking.

That success, however, “may have contributed to the lack of attention paid to other ways to foster effective teaching and learning.” As a result, law faculties have fallen behind their colleagues in other fields–including the arts and sciences–in both learning theory and practice. Bok criticizes law professors for their “constant” and “tedious” use of the case/Socratic method; harmful neglect of students’ self esteem; lack of feedback; and failure to require collaborative work.

Law schools, according to Bok, also “lag behind other faculties . . . in attempting to measure the extent to which their students are acquiring the knowledge or the competencies they need to perform effectively as lawyers.” When law schools do study those outcomes, the results are discouraging: One recent study shows that students make relatively small improvements in their legal reasoning ability after the first year. Their class preparation also drops markedly after that year. These findings, according to Bok, raise warning signs for legal education.

Clinics

Bok stresses the role that clinical education could play in improving legal education. In addition to adding necessary elements to the curriculum, clinical experiences could stimulate students’ flagging interest in the second and third years of law school. Bok also notes that clinical professors have led the way in stimulating innovative teaching at law schools. Those professors have pioneered a wide range of teaching methods and, along with professors of legal writing, have produced articles “discussing cognitive theory, . . . research on student learning, and their potential application to law teaching.”

As Bok concedes, clinicians don’t have it easy in the legal academy: “The principal impediment to achieving the full potential of clinical studies is the skepticism on the part of many members of the core faculty as to whether the training itself or those who provide it fully meet appropriate academic and intellectual standards.” Although Bok spent his faculty years as a doctrinal professor, he urges law school colleagues to shed this prejudice. “On balance,” he concludes, “the potential of clinical programs and their faculty to enrich legal education seems to justify a larger role than they are currently given in most law schools.”

And More

For further insights into legal education, I recommend the full book. Bok discusses the lack of legal services for low- and mid-income Americans, the difficulty of teaching professional ethics, and other key issues for legal educators. His exploration of other academic units is equally worthwhile. Bok’s views, based on a lifetime of experience and extensive scholarly study, deserve serious consideration.

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