More Than Learning to Think Like a Lawyer: the Empirical Research on Legal Education

• Publication year: 2022

34 Creighton L. Rev. 73. MORE THAN LEARNING TO THINK LIKE A LAWYER: THE EMPIRICAL RESEARCH ON LEGAL EDUCATION

Creighton Law Review

Vol. 34

JAMES R. P. OGLOFF DAVID R. LYON KEVIN S. DOUGLAS V. GORDON ROSE(fn+)(fn++)(fn+++)(fn++++)

[A] teacher of law should be a person who accompanies his pupils on a road which is new to them, but with which he is well acquainted from having often traveled it before. What qualifies a person, therefore, to teach law is not experience in the work of a lawyer's office not experience in dealing with men, not experience in the trial or argument of causes - not experience, in short, in using law, but experience in learning law.(fn1)

I. INTRODUCTION AND SCOPE OF THE ARTICLE

Just as his namesake before him, Christopher Columbus Langdell set the course for the discovery of something new, something which was to revolutionize legal education. Soon after becoming Dean of the Harvard Law School in 1870, he created and implemented the case method.(fn2) Up to that time, lawyers most typically learned their skills and craft in an apprentice model under the tutelage of practicing lawyers.(fn3) Indeed, at least as far back as 1292, when King Edward I of England appointed a Royal Commission to determine how lawyers should be educated to qualify for practice, the apprenticeship model was the one of choice.(fn4)

Like trades and other professions of the day, the apprenticeship model involved a formal arrangement between the lawyer and the student/apprentice.(fn5) An example of a formal legal arrangement, and the strict rules entailed, may be found in the following contract written in 1742 in which James Alexander agreed to have William Livingston serve as his apprentice:

Dureing all which Term the said apprentice his said master faithfully Shall Serve, his Secrets keep, his Lawfull Commands gladly Every where obey, he shall do no Damage to his Said Master, nor see to be done by others without letting or giveing notice to his Said Master, he shall not waste his Said masters goods nor lend them unlawfully to any, he shall not Comitt fornication, nor Contract matrimony within the Said term, att Cards, dice or any other unlawfull game he shall not play, whereby his Said master may have damage, with his own goods nor with the goods of others within the said term without license from his said Master, he shall neither buy nor Sell, he shall not absent himself day nor night from his said Master's Service without his leave, nor haunt ale houses taverns or play houses, but in all things as a faithful apprentice he shall behave himself towards his said Master, and all his dureing the said term.(fn6)

Along with the case method, Dean Langdell instituted the Socratic method of instruction at Harvard in 1870.(fn7) Both the case method and the Socratic method proved highly popular, having been adopted by "nearly all of the full-time and by some of the part-time schools . . . [regardless of] whether schools taught the law of a particular jurisdiction or the common law, or both . . . ."(fn8) Although widely accepted, the case-method was not without its critics. A primary concern, as expressed by Dean Wayne Morse in the following quote, was that relying on the case method would limit students' abilities to go beyond the traditional thinking which is the hallmark of legal cases. As Dean Morse wrote:

Under the case system the prospective lawyer tends to accept consciously or unconsciously the traditional legalistic attitude that a sound system of law must be based on judicial precedent, held together by formal logistical reasoning, and applied with unfailing uniformity. Thus he goes out of thelaw school to perpetuate ideas which have long since lost their social utility.(fn9)

In the intervening century and a quarter from the implementation of the case system and the Socratic method at Harvard, much has changed in legal education - and some things have not. Considerable attention over the past fifteen years has been paid to the nature and process of legal education;(fn10) however, there has been no concerted effort to explore systematically the empirical research literature on legal education. Based on our own review of the literature, there have been well over one-thousand scholarly articles, and a large number of books, devoted to the topic of legal education since 1965. While many commentators discuss various aspects of legal education, often criticizing existing teaching methods or making strong recommendations for change, relatively few people actually have developed and carried out empirical research in legal education. In addition, there has been no systematic review of such research. To bridge the gap in our knowledge, we provide a broad overview of the extant empirical research on legal education. The goal of the work is to review critically the literature to convey what is known empirically about the nature and process of training lawyers. Then, with the review as background, we discuss the need for future research and address the course that the research might follow.

We begin with a review of the research that has been conducted concerning law students, both prior to and during their legal training. This review includes studies about their decision to apply to law school, the characteristics of those who apply to law school and of those who are accepted,(fn11) as well as factors related to the law school experience itself. Following the review of the literature on law students, we turn to a discussion of the research on the law school itself, including law professors and administrators, the law school curriculum, methods and tools of instruction, law school grading and evaluation of students, and bias and discrimination in legal education. Although the focus of the article is on law school training, per se, we doprovide some evaluation of studies of the legal education that occurs beyond the walls of the law school (e.g., applied legal training and continuing legal education). Related to this topic is our assessment of the work investigating "life after law school," including the bar examination, factors related to entry into the work place and choice of career. The last area of empirical research on legal education we present concerns practical considerations in legal education. Finally, we provide a discussion of the need for future research, as well as recommendations concerning the direction such work should follow.

II. LAW STUDENTS

A. PRIOR TO BECOMING A LAW STUDENT

A surprisingly small amount of empirical attention seems to have been devoted to issues relating to law students before they begin law school. What scant data exists about who applies to law school and why, and about the factors predicting probable success, is rarely published. The research results which have been conducted and published tend to be very dated, and for all practical purposes, not relevant to today's aspiring law student.(fn12)

1. The Decision to Apply to Law School

The decision to apply to law school involves two components: the demand for legal education (and the consequent issue of the supply of positions in law schools) and what factors potential applicants consider when deciding whether to apply to law school.

a. The Demand for Legal Education

It has been documented that the demand for legal education and the supply of positions for students have both increased during the 1960's and 1970's.(fn13) The number of positions available in law schools, however, increased faster during this period than did the number of applicants, resulting in schools accepting a greater proportion of the pool of those aspiring to be law students.(fn14) As might be expected, at the start of this trend law schools were able to exercise increased ad-mission standards. Those standards were subsequently softened, however, as the supply of law school positions began to outstrip demand.(fn15) The faster growth of supply relative to demand does not seem to explain certain research results. For example, increased reliance on Law School Admission Test ("LSAT") scores and other measures of academic qualifications in making admission decisions in the 1960's and 1970's did not eliminate the effect of applicants' religious background, gender, social and economic class in determining the quality of law school to which applicants were ultimately admitted - while "[t]he 'inside tracks' to stratum I schools were largely awarded to those with the highest academic qualifications from high-status colleges . . . . Once the field was thereby narrowed, the advantages went to males from the highest social class backgrounds who were Jewish or Protestant."(fn16) Pipkin stressed that since demand for law school admission was likely to continue to decline relative to the number of positions available, schools were predicted increasingly to have to compete for students, resulting in a continued diminishment of academic admission standards. He suggested that law schools compete for applicants not by further standardizing legal education, but rather by diversifying their programs, incorporating practical training components, and introducing new methods of teaching.(fn17)

In the early 1980's, both the supply and demand for legal education actually began to subside, with fewer applicants to American law schools than previously, and with applicants each applying to fewer schools.(fn18) Between 1982 and 1984, for...