The path of the law school: three implementable law school reforms.

• Author: Lamb, Jared
• Position: III. Recommendations B. Recommendation Two: Alternative Learning Environments through Conclusion, with footnotes, p. 377-396

2. Recommendation Two: Alternative Learning Environments

   Law school administrators have many potential avenues for changing the current dominant academic paradigm. These potential changes vary in scope from minor to complete systemic overhauls. Many of these reforms have been discussed frequently in the literature and implemented at varying degrees at different law schools based upon local conditions. For example, increased clinical education is a movement towards practical skills that has been somewhat embraced by the legal community. Similarly, a focus on legal research and writing skills as a separate or integrated course in the first year and beyond builds practical skills. ABA Standard 302(a) mandates that "[a] law school shall require that each student receive substantial instruction in ... writing in a legal context, including at least one rigorous writing experience in the first year and at least one additional rigorous writing experience after the first year." (219) Yet at least some schools have been reluctant to fully embrace the overall goal of these new requirements. (220)

   As mentioned in the introduction, the focus of this Article is on easily implementable changes. The alternative learning environments recommended in this section will principally address group learning and examination, discussion sections, and practice plans. Group learning/examination and discussion sections are pedagogical reforms that increase the quality of students' educations without significantly increasing the cost of law school operations. Practice plans are aimed at both generating revenue and further increasing pedagogical quality. The section will also include a few tangential observations about the use of simulations, clinical education, and legal research and writing courses.

   In most law schools, grades for first-year courses, and often the second-year and third-year courses, are determined by the student's performance on a single, anonymously graded final examination. (221) Some professors allow for a half-grade increase based upon excellent class participation that may apply, by definition, to a relatively small subset of the class at most. However, a three or four hour examination will almost always be used to grade and sort students' aptitude in a given subject area based upon a forced school-wide curve. Grading entirely upon a single examination is likely to significantly increase students' stress levels in the weeks prior. (222) According to the Carnegie Report, "[t]he ubiquitous practice of grading on the curve ensures that, no matter how talented or hard-working the students are, only a predetermined number will receive A's. Such a context is unlikely to suggest solidarity with one's fellow students or much straying from a single-minded focus on competitive achievement." (223) This gauntlet-like competition does little to improve the drive of students that have already been "sorted" based upon an LSAT examination, several years of undergraduate education, admissions essays, and extracurricular activities. It also reduces the likelihood students will further develop their communication skills and their teamwork abilities, identified as part of the ninth fundamental skill for practicing lawyers in the MacCrate Report. (224) Curves are unlikely to disappear in the immediate future given the need for some uniformity across different professors, but they highlight a need for counterbalancing group-oriented assignments that will diversify law school pedagogy.

   At business schools across the country, students are frequently evaluated on more than a three or four hour exam taken at the end of the semester. (225) There are written exams, even though they are usually mixed with a variety of problems, with "[s]ome multiple choice, some true/false, a few essays, and a few problems to solve." (226) However, class participation, homework grades, or group project grades can have a larger influence on a student's place on the curve than exam performance. (227) These cumulative grading formats encourage students to "show up for class, be well prepared, contribute to class discussions, and put effort into assignments and group projects." (228)

   Assigning and grading group projects in law school would be a beneficial supplement to the traditional case method. After graduation, most law students will complete assignments as part of a team, whether they work in the private sector, government, public interest, judicial clerkships, academia, or business. In 2008, only 3.5% of graduating students reported being in a solo practice. (229) The remainder of graduates employed in private practice will work at firms with other attorneys. (230) The majority of lawyers will work in firms with over ten lawyers and a significant plurality of law school graduates work in law firms with 100 or more attorneys. (231) Finally, even those lawyers that enter solo practice will have to interact with clients and other attorneys.

   One of the most seductive aspects of an organizational commitment toward more group assignments and grading is that it provides flexibility. Clinics frequently provide team-oriented work requirements or involve client contact at varying degrees, but are often costly and students at some schools are foreclosed from participation because of limited seats. One method of increasing group assignments is to increase the availability of clinical positions and encourage additional participation among students. (232)

   Beyond clinics, in-class simulations provide a rich opportunity for students to work as part of a team of lawyers without abandoning a doctrinal area for purely skills-based training. The Carnegie Report endorsed this strategy, which they would call integrative rather than additive. (233) An integrative strategy involves combining the cognitive, practical, and ethical-social apprenticeships instead of viewing one as dominant and the others as less important add-ons. (224) According to the Carnegie Report, "it is extremely rare for the three aspects of legal apprenticeship to be linked so seamlessly that each contributes to the strength of the others, crossing boundaries to infuse each other. And in virtually no law schools do these experiences systematically reach all of the students." (235) Nevertheless, these experiences could reach every student in the future.

   Homework assignments in traditional first-year courses and group-based memorandums in legal research and writing are additional potential methods of implementation. In fact, even the ABA's Standard 302(b) states that "[a] law school shall offer substantial opportunities for ... small group work through seminars, directed research, small classes, or collaborative work." (236) Regardless of the strategy used for realization, a movement toward group activities and potentially group grading would more accurately reflect the realities of practice without forfeiting the cherished "thinking like a lawyer" aspect of legal education. (237)

   For many years, an assortment of undergraduate departments have relied upon both graduate and undergraduate teaching assistants to lead supplemental discussion sections. (238) These weekly discussion sections provide "weekly opportunities for presentation of supplemental topics, small group discussions, application exercises, experiment demonstrations, exam preparation, and other interactive activities that foster student learning." (239) The use of teaching assistant led discussion sections has been shown to improve students' academic performance when used to complement traditionally large undergraduate lectures. (240)

   Discussion sections are another potential complement to the traditional case method of legal education. Teaching assistants, LL.M. students, J.S.D. students, and even second or third year J.D. students, can lead these discussion sections. In fact, a mixture of students with different levels of experience and knowledge is beneficial as it furthers the learning of novice teaching assistants. (241) In addition, teaching assistants work together and with small groups of students, furthering the goal of increasingly team-oriented education discussed above. While teaching assistants could help make team-oriented grading and alternative forms of grading less burdensome on professors' time and resources, the focus of this recommendation is on using teaching assistants to improve teaching and learning. (242)

   In fact, an inducement toward using teaching assistants may be found within the ABA Accreditation Standards themselves. This is important because competition among law schools to attract students may be a catalyst for actual implementation of this recommendation. According to Interpretation 402-1, "[i]n computing the student/faculty ratio, full-time equivalent teachers are those who are employed as full-time teachers on tenure track or its equivalent who shall be counted as one each plus those who constitute 'additional teaching resources' as defined below." (243) Additional teaching resources include (but presumably are not limited to) teachers with significant administrative duties, non-tenure track legal writing instructors and administrators that teach, librarians that teach, adjunct professors, teachers from other university departments, emeriti faculty, and clinicians. (244) The Interpretation goes on to state that "[t]o the extent a law school has types or categories of teachers not specifically described above, they shall be counted as appropriate in accordance with the weights specified above." (245)

   Interpretation 402-2 lends further support for the notion that teaching assistants may count as additional teaching resources and effectively reduce a school's student to faculty ratio. When a law school's student to faculty ratio exceeds 20:1, "the [Accreditation Committee] examination will take into account the effects of all teaching resources on the school's educational program, including such matters...