Teaching for Lifelong Learning: Improving the Metacognitive Skills of Law Students Through More Effective Formative Assessment Techniques

• Author: Anthony Niedwiecki
• Position: Associate Professor of Law at The John Marshall Law School in Chicago, Illinois
• Pages: 149-193

TEACHING FOR LIFELONG LEARNING: IMPROVING THE

METACOGNITIVE SKILLS OF LAW STUDENTS THROUGH

MORE EFFECTIVE FORMATIVE ASSESSMENT TECHNIQUES

ANTHONY NIEDWIECKI∗

I. INTRODUCTION

With the widespread criticism of legal education1 and the proposed

changes to the American Bar Association (ABA) accreditation standards,2

law schools are looking for ways that they can better teach students to be

lawyers.3 In fact, law schools may be facing a perfect storm for significant

Copyright © 2012, Anthony Niedwiecki.

∗ Associate Professor of Law at The John Marshall Law School in Chicago, Illinois.

Professor Niedwiecki is currently Director of Lawyering Skills. He would like to thank his

research assistants, Michelle Imber and Jamie Budler. He also would like to thank The

John Marshall Law School for their financial grant and support.

1 See ROY STUCKEY ET AL., BEST PRACTICES FOR LEGAL EDUCATION 1 (2007)

[hereinafter BEST PRACTICES]; WILLIAM M. SULLIVAN ET AL., EDUCATING LAWYER S:

PREPARATION FOR THE PROFESSION OF LAW 12–13 (2007) [hereinafter CARNEGIE REPORT].

In the author’s opinion, these reports, i ssued in 2007, are considered the most import ant

reviews of legal education. In addition to these high-profile reports, there has been a great

deal of discussion about the high cost of legal education in a declining job market for

lawyers. See David Segal, Is Law School a Losing Game?, N.Y. TIMES, Jan. 9, 2011, at

BU1.

2 See AM. BAR ASS’N, C HAPTER 3: PROGRAM OF LEG AL EDUCATION, DRAFT FOR JULY

MEETING (2011), available at http://www.americanbar.org/content/dam/aba/migrated/2011_

build/legal_education/committees/standards_review_documents/july2011meeting/2011062

1_ch_3_program_of_legal_education_redlined_to_standards.authcheckdam.pdf [hereinafter

ABA DRAFT]. The ABA, the main entity that accredits law schools, proposes changes to

the accreditation standards in “Chapter 3 : Program of Legal Education” to focus on learning

outcomes and assessment. Id. The most recent version of the proposed standards was

released in July 2011. See AM. BAR ASS’N, STANDARDS AND RULES OF PROCEDURE FOR

APPROVAL OF LAW SCHOOLS 2011–2012 (2011) [hereinafter ABA STANDARDS].

3 See, e.g., Mary Ann Becker et al., Assessment, THE SECOND DRAFT, Fall 2010, at 2–3;

Tonya Kowalski, True North: Navigating for the Transfer of Learning in Legal Education,

34 SEATTLE U. L. REV. 51, 64 (2010) (suggesting that students can benefit from seeing the

kinds of transferrable knowledge and active learning skills that are emphasized in the

transfer method of learning); Ira P. Robbins, Best Practices on “Best Practices”: Legal

(continued)

150 CAPITAL UNIVERSITY LAW REVIEW [40:149

changes in legal education with the recent release of two high-profile

reports criticizing legal education,4 the major restructuring of law firms and

practice because of the weakening economy,5 and the push to change the

ABA’s accreditation standards.6

In 2007, two major reports appeared, each of which criticized legal

education and offered a series of recommendations on better preparing

students for the practice of law. In Educating Lawyers: Preparation for

the Practice of Law, best known as the “Carnegie Report,” the authors

discuss how law schools are successful at teaching legal analysis to

students using the Case Method, but criticize law schools for not

adequately focusing on preparing students for the practice of law and the

lawyer’s role in society.7 The report also criticizes legal education for not

teaching enough practical skills and for failing to fully integrate the

learning of analysis with ethical and professional training.8 At the same

time the Carnegie Report was published, The Clinical Legal Education

Association (CLEA) issued its own set of recommendations. The report,

Best Practices for Legal Education (Best Practices), also criticizes legal

education for not establishing appropriate learning outcomes and using

Education and Beyond, 16 CLINICAL L. REV. 269 (2009) (stating that “best practices” is an

inadequate concept and concluding “that it has no place in the world of legal education”);

Roy Stuck ey, “Best Practices” or Not, It Is Time to Re-Think Legal Education, 16

CLINICAL L. REV . 307, 312–13 (2009) (recommending that schools should try to achieve

congruence in the program of instruction, progressively develop knowledge, skills and

values, integrate the teaching of theory, doctr ine and practice, and provide pervasive

professionalism instruction and role modeling throughout all three years of law school);

Judith Welch Wegner, Reframing Legal Education's "Wicked Problems", 61 RUTGERS L.

REV. 867, 870 (2009) (illuminating “how responsibility should be allocated for lawyer

preparation; why change in content alone does not result in enduring improvements in legal

education; whether ‘thinking like a l awyer’ has a continuing place in legal education; and

how the upper division can be fruitfully improved”).

4 See CARNEGIE REPORT, supra note 1; BEST PRACTICES, supra note 1.

5 See, e.g., Segal, supra note 1.

6 See ABA STANDARDS, supra note 2.

7 CARNEGIE REPORT, supra note 1, at 87–95.

8 Id. The Carnegie Report focused on how law schools need to teach the three

apprenticeships—cognitive, practical, and ethical. See id. at 13–14; BEST PRACTICES, supra

note 1, at 182–83. Although law schools tend to teach analytical skills well, these skills are

taught in a way that is disconnected with the real l ife experience of working with clients and

developing a professional identity. See CARNEGIE REPORT, supra note 1, at 87, 126–27.

2012] TEACHING FOR LIFELONG LEARNING 151

effective assessment models to make law students better prepared for the

practice of law.9 The report makes a series of recommendations on how to

plan a curriculum, establish broad learning objectives for the school,

develop specific learning objectives for each type of course, assess those

learning outcomes, and best prepare students for the practice of law.10

In 2009, the ABA began a full study centered around transforming its

own accreditation standards by focusing on learning outcomes and

assessment instead of the input measures it has traditionally used.11 All of

this happened during one of the worst periods for law firms due to a weak

economy.12

These reports and events highlight the need to prepare law students to

be practice-ready and to help make them better prepared for lifelong

learning,13 something that goes to the core of what it means to be a

lawyer.14 The problem, however, is that law schools generally fail to train

students to be expert learners even though lawyers will be constantly

learning while practicing law.15 In light of law schools’ general failure to

teach students to be expert learners, this article discusses how to better

prepare students for the practice of law through a more effective way of

using formative assessment in lawyering skills courses and clinics.16 For

purposes of this article, “doctrinal courses” are those that focus on teaching

the substance of an area of the law, even though some skills may be

9 BEST PRACTICES, supra note 1, at 7.

10 Id. at 3, 7.

11 Donald J. Polden, Statement of Principles of Accreditation and Fundamental Goals of

a Sound Program of Legal Education, AM. BAR ASS’N (May 6, 2009), http://www.american

bar.org/groups/legal_education/committees/standards_review.html. Generally, the ABA

has set its standards on input measures. Id. For example, law schools are evaluated on the

size of the library, the faculty-student ratio, and the minimum amount of time a student

spends in class before graduation. See also ABA STANDARDS, supra note 2, at 23, 31, 44.

The proposed standards focus on the learning outcomes schools expect of their students and

ways that they will assess whether the students have met those learning outcomes. See

ABA DRAFT, supra note 2.

12 See Segal, supra note 1.

13 CARNEGIE REPORT, supra note 1, at 87–95; BEST PRACTICES, supra note 1, at 1, 7.

14 BEST PRACTICES, supra note 1, at 48–49.

15 Id. at 1.

16 See Alice M. Noble-Allgire, Desegregating the Law School Curriculum: How to

Integrate More of the Skills and Values Identified by the MacCrate Report into a Doctrinal

Course, 3 NEV. L.J. 32, 32–33 (2002).