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Evidence, Please!

There have been calls for reform of the law school curriculum ever since law schools were created. Since the Great Recession hit in the late noughties, those calls have grown to a clamor. Yet many of those calls share a feature that is quite extraordinary — and even more so because it is a feature that has been consistently overlooked or ignored. It is time to highlight this extraordinary omission. 

When lawyers participate in the resolution of disputes, their role is to make powerful arguments favoring one side or another. But they are supposed to make those arguments based on evidence. What is so extraordinarily lacking in the debate about the law school curriculum is evidence to support the calls for reform. 

Experiential versus “More” Experiential

A typical claim has been that law school should be more “experiential.” Now I should make it clear that I think “experiential” education can indeed play a meaningful role in the law school curriculum. But I have evidence on my side. We have long known that a broad mix of classes and courses offers a better education than a curriculum with a very narrow focus. Indeed, this is the very essence of a liberal arts education. 

It should, therefore, come as no surprise that experiential courses have been included within the curriculum of many law schools for a very long time. Calling for more experiential education, however, raises different questions. More than what (or how many), for example? We are not told. And with good reason: no-one has the faintest idea. 

Indeed, calls for more experiential courses suffer from a fundamental problem. They assume that such courses must inevitably be superior to other types of courses. But where is the evidence for that? The simple truth is that there isn’t any. 

In other words, the call for more experiential education has no greater evidence to support it than a claim that (say) studying Animal Law provides a superior education to that provided by the study of Tax Law. (Or the converse.) 

Intuition can be Misleading

Of course, in the absence of evidence, lawyers don’t usually give up. They can, almost always, still resort to arguments from first principles. And so, it seems, do those calling for more experiential education. They say their argument is “obvious” — by which they mean that their claim is intuitively true. However, in this instance, that method of reasoning can’t survive another legal favorite: the reduction to absurdity (or, if you must, reductio ad absurdam). 

The problem is that, if more experiential education is desirable, then law school should be nothing but experiential education. After all, there is nothing inherent in the concept of “more” that implies an upper limit. 

Some readers might think that abolishing all classroom-based learning is precisely what we should do. But that’s the trouble with intuition. It’s so often wrong. For centuries, common lawyers obtained their legal education solely from learning while “on the job” or socializing (read eating too much and getting drunk) with practitioners. That was precisely what the English Inns of Court were all about. But when American universities, influenced by lawyers trained in the civil law tradition, not only established real law schools but also developed an identifiable curriculum, English lawyers soon saw that their own method of training by osmosis was both highly inefficient and ineffective. 

Having previously exported the common law system to the United States, England then imported the American system for educating potential lawyers about the common law. Law schools were created, in other words, precisely because there is an upper limit to the amount of experiential education that should form part of legal education (though we still don’t really know what that limit is). 

Evidence-Based Reform

So where does this leave us? A broad education is better than a narrow one, and experiential courses have a part to play within the curriculum. That much we know. But, before making wholesale curriculum changes, we should be trying to gather evidence of what experiential education can and can’t deliver. In fact, we should be trying to gather such evidence about all our classes. 

In the meantime, what we certainly should not be doing is changing the law school curriculum just because a few voices are shouting loudly. Lawyers work with evidence and, if we are to provide a legal education worthy of the name, it should be evidence that drives curriculum reform.