Beyond Traditional Legal Pedagogy: by Vernelia Randall
It is often said that many individuals, having been high achievers before entering law school, are surprised and dismayed when they receive Cs in law school. That was neither my experience nor my expectation. I fully expected to graduate in the bottom half of my class. I expected to work extraordinarily hard. Yet, I also had confidence that I could accomplish my goal of avoiding probation and possibly dismissal. My experiences taught me that it was not only what you knew that was important to succeeding in most educational environments, but understanding that a pedagogical and political nature is essential. I also learned that the ability to express what you knew in a manner acceptable to the instructor was important.
Entering law school with these goals, I was both surprised at my success and dismayed at the general incompetency of the legal education system. Traditional legal pedagogy fails to clearly identify for students what a student needs to know and be able to do to succeed in law school. Moreover, traditional legal pedagogy fails to teach clearly and precisely the thinking skills embodied in the phrase "thinking like a lawyer." Traditional legal pedagogy fails to provide adequate opportunities for students to learn or improve their skills through practice and critique.
Many students who fail in law school do so because legal education, through its failure, does not attempt to educate as much as it attempts to weed out students and to rank the students who remain. Thus, the problem of an educationally unsound legal pedagogy leads many students to failure (or poor performance) where failure (or poor performance) may have been avoidable.
Intuitively, if not consciously, recognition of this dilemma causes many first year law students to become overwhelmed by a fear of failure. The initial fear intensifies as the semester progresses until some students become paralyzed by "failure anxiety." Failure anxiety is the condition represented by the following statement: "I am so concerned about failing my examination that I am unable to study." The causes of failure anxiety can be traced to four factors: (1) high expectations, (2) the method of law school instruction, (3) the subject matter and method of study, and (4) the importance of first semester grades.
First, many students who enter law schools have done well academically in the past and have high expectations of how they will do in law school. When such students perceive themselves as being in the middle of the class, because they received only Cs, they consider themselves failures.
Second, the student must adjust to a method of instruction that provides very little feedback or opportunity to practice developing skills. The so-called Socratic method results in many law professors making few evaluative comments about a student's classroom performance. Thus, typical first year classes provide little, if any, opportunity for feedback of written analytical skills such as issue-spotting, analysis, and writing. As a result, many law students enter their exams not having had any feedback on the skills needed to do well. In fact, most students will go through the entire semester not knowing how effective their method of study was and having even less information on how to improve their method of study.
Third, most first-year law students do not know how to study successfully. In part, this is due to the significant change in teaching methods and expectations between college and law school -- a change that is more significant than the one between high school and college.
My point was not that we do not offer a "successful education" to the students, but that, based on pedagogy, we do not provide an educational experience designed to promote effective student learning for the students we currently admit. When evaluated against pedagogy, legal education is sorely lacking. Among other shortcomings:
• we teach, using one dominant method without regard to its educational effectiveness;
• we do not clearly communicate student-centered learning objectives; that is, we do not tell students what it is they need to know or what they need to be able to do to perform adequately;
• we teach basic legal analytical skills in extremely large classrooms (an oxymoron at best);
• we teach one set of skills (oral analytical skills) and we test another (written analytical skills);
• we provide little opportunity for students to practice the skills we do teach (oral analytical skills);
• we provide no opportunity for students to practice the skills we test (written analytical skills);
• we evaluate students based on only one or two exams a semester;
• we evaluate students using a method (essay exams) which has been documented to lack reliability and validity;
• we assign grades not based on actual criterion-referenced performance (learning objectives), but on norm-referenced performance (performance compared to other students);
• we know little about pedagogy, learning theory or evaluation and seem singularly reluctant to learn;
• we do little to help our students to understand how they learn and how to maximize their learning in law school.
If we were talking about educators in any other field or at any other level we would have no choice but to call them incompetent.