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As a British law professor living and working in the United States, I am regularly asked the following question:
Is legal education better in the US or the UK?
The answer is that neither is better. They are just different. But appreciating the reasons for (and ramifications of) those differences is crucial.
In fact, the MacCrate and Carnegie reports highlight a fundamental problem with American legal education. Yet it’s not the problem they claim to have identified.
Indeed, while both reports have been heavily cited, they remain barely implemented.
There is a good reason for that. Those reports — together with those who seek to promote them — are based on a wholly mistaken assumption.
That assumption is that the quality of legal education depends on what is taught. So those reports focus on curriculum content, and thus miss the target entirely.
The truth is that the quality of legal education depends not on what but on how it is taught.
Professors are good not because of what they teach, but because of how they teach. A good professor in one subject can thus provide lessons and techniques that can be applied across the curriculum — perhaps, even, throughout life.
After all, when you think of an inspirational professor, I bet that you don’t think of something substantive that s/he taught you. You think of a style, a method, or a process.
So where is the report on teaching methods in law school?
Let’s start with what we know. Feedback is essential for improvement. That’s true of any job, or when learning any skill.
Yet we also know that feedback is rarely built into the curriculum — Research and Writing is the main exception — and, when it is, it is typically little more than “busy work,” clearly bolted-on to a set curriculum as an afterthought. The Context and Practice series of casebooks is a sad example.
The classroom experience for most students in doctrinal classes is overwhelmingly passive. The professor (and maybe a few student “on call”) talk; others just sit and nod sagely (or sleep, or doodle, or play games, or surf the web ...)
Students may even be allowed “passes” — which means it’s OK for them to be present in body but not in mind!
If a student contributes nothing in class, there is, by definition, nothing on which the professor can give feedback. So a significant learning opportunity is missed.
And setting tasks to be completed outside of class — which might or might not be valid for other reasons — cannot address this problem. The student is still doing nothing in class on which feedback may be given.
It is well established that students who interact with the material learn faster and better than those who don’t. So we know that students must be active in class, yet doctrinal professors do very little to achieve this.
When they do facilitate a more active class session — such as a project to be carried out within the classroom — they tell everyone how wonderful the experience was, and how this is what we should all be doing. And yet they do it for just one class out of the 25 or so that take place throughout the semester!
In the UK, feedback is built into the doctrinal curriculum via regular tutorials, where every student is expected to participate.
While attempting to merely replicate the UK experience in a US law school would be almost bound to fail, it is not difficult to see how the UK approach can easily be adapted for use this side of the Atlantic.
The answer is to turn class time into a class discussion. In other words, what too often passes for a lecture needs to be turned into a large seminar.
No doubt some readers will object that it’s impossible to hold a seminar with 50, 60, 70, or 80+ students in it. But, actually, it isn’t impossible at all. I do it all the time. But it does require a fundamentally different approach to classroom teaching.
The first prerequisite is a really good text- or casebook. But note the metric of what counts as “good” here. I don’t care about the apparent status of the author(s). I don’t care who the publisher is. I certainly don’t care about the Teacher’s Manual: anyone who needs one of those has no business being a law professor in the first place.
The acid test of a good text- or casebook is this. Do you feel the need to lecture about most or all of the topics? If so, it’s not a good book at all, because it isn’t fit for purpose.
Unfortunately, that’s true of the overwhelming majority of casebooks currently in use in US law schools. They simply aren’t up to the mark. So you need to search for a better alternative — or write your own.
Lecturing instead of writing your own book (or other materials) doesn’t cut it either. That still means takes up precious class time when, as we have already established, the students need to be learning actively.
The second prerequisite is that the students need to be given notice of questions well in advance. My experience is that one week is a sensible minimum period of advance notice, though nowadays I find it’s easier to give out my questions for the whole semester at the very beginning of each course.
These questions can be discursive in nature, asking the “why” as well as the “how”, or requiring the students to draw comparisons. In appropriate subjects, it’s also a good idea to include a hypothetical for every topic.
Advance notice means that students have time to prepare answers to these questions before class. Because the professor has not hidden the ball, there is little wasting of time while a student wonders how to respond to the question with which they have just been ambushed. Students can simply consult — even read — their pre-prepared answers, and the class can develop organically from there.
This means that it is very important that these questions are not relegated to mere “talking points.” Those enable a professor to cheat by coming up with something so vague that the students still have little idea what the class will be about. That defeats the whole purpose of this method. Proper questions are vital because they focus minds.
The professor can now offer feedback continually throughout every class according to how s/he moderates the discussion. So the first student might be asked a follow-up question, or other students might volunteer alternative answers. Or the professor might indicate that one response is partly right (or on the right track), and then invite further contributions that build on that prior answer.
But true feedback is a two-way street. This manner of organizing a class means that the professor receives automatic and immediate feedback on his or her performance, as well as on the students’ views of the subject more generally.
So now the professor has knowledge about the students’ performance and ability (as well as on his or her own performance) and has the opportunity to fix problems without waiting for exam results and student evaluations.
More traditional methods of teaching run the risk that those who seemed to be coping well, and who were nodding sagely at the professor’s every word, might fail the exam. The method of teaching advocated here runs no such risk.
Indeed, having practised this method of teaching for over a decade, I can say that exam results rarely come as a surprise. I can predict the performance of all but maybe one or two students in every class within a range of plus or minus 0.25.
That also means that, if a student’s contributions in class are highly problematic, the professor can now take early steps to mitigate those problems (whether that be by one-to-one mentoring, reference to academic support services, or whatever).
But perhaps the most significant consequence of adopting this method of teaching is that it encourages the students to adopt more effective studying habits. That truly is a life lesson.