Monday, July 07, 2008

Legal Education and the Reproduction of Hierarchy

When I try to describe what law school is like to some of my friends and family members, I sometimes get the feeling that they think I am suffering from a mild form of paranoia or delusion. I'm sure they think the experience and operations of law school can't be quite as bad as what I describe. The non-existent feedback students get about how well they understand the material (100% of your grade is based on the final exam), the apparent randomness of grades, the hierarchy set in stone by your class rank, the insane amount of reading that is often only loosely connected to what is on our exams, the unnecessary vagueness of the material, etc., etc.

To support my perspectives, here is an excerpt of a provocative essay about the sad state of legal education [PDF] by Duncan Kennedy, former law professor at Harvard Law School:
Law schools teach a small number of useful skills. But they teach them only obliquely. It would threaten the professional ideology and the academic pretensions of teachers to make their students as good as they can be at the relatively simple tasks that they will have to perform in practice. But it would also upset the process by which a hierarchical arrangement analogous to that of law school applicants, law schools and law firms is established within a given student body.

To teach the repetitive skills of legal analysis effectively, one would have to isolate the general procedures that make them up, and then devise large numbers of factual and doctrinal hypotheticals where students could practice those skills, knowing what they were doing and learning in every single case whether their performance was good or bad. As legal education now works, on the other hand, students do exercises designed to discover what the “correct solution” to a legal problem might be, those exercises are treated as unrelated to one another, and students receive no feedback at all except a grade on a single examination at the end of the course. Students generally experience these grades as almost totally arbitrary –unrelated to how much you worked, how much you liked the subject, how much you understood going into the exam, and what you thought about the class and the teacher.

This is silly, looked at as pedagogy. But it is more than silly when looked at as ideology. The system generates a rank ordering of students based on grades, and students learn that there is little or nothing they can do to change their place in that ordering, or to change the way the school generates it. Grading as practiced teaches the inevitability and also the justice of hierarchy, a hierarchy that is at once false and unnecessary.

It is unnecessary because it is largely irrelevant to what students will do as lawyers. Most of the process of differentiating students into bad, better and good could simply be dispensed with without the slightest detriment to the quality of legal services. It is false, first, because insomuch as it does involve the measuring of the real and useful skills of potential lawyers, the differences between students could be “leveled up” at minimal cost, whereas the actual practice of legal education systematically accentuates differences in real capacities. If law schools invested some of the time and money they now put into Socratic classes in developing systematic skills training, and committed themselves to giving constant, detailed feedback on student progress in learning those skills, they could graduate the vast majority of all the law students in the country at the level of technical proficiency now achieved by a small minority in each institution.

Law schools convey their factual message to each student about his or her place in the ranking of students along with the implicit corollary that place is individually earned, and therefore deserved. The system tells you that you learned as much as you were capable of learning, and that if you feel incompetent or that you could have become better at what you do, it is your own fault. Opposition is sour grapes. Students internalize this message about themselves and about the world, and so prepare themselves for all the hierarchies to follow.
Read the whole thing and see more of Kennedy's writings here.

In addition to law, I have also studied engineering, business, and economics, and spent two years teaching mathematics at a community college. Law stands alone among all of these as the only discipline which seems to do more to inhibit learning than to facilitate it.

I also spent several years as a controls engineer and am very familiar with the necessity for a feedback signal to help keep a system oriented towards a given setpoint (goal). The analogy of this in education is that students require adequate feedback in order to know if they get off track in their learning and understanding of the material they are studying. Without this feedback signal, a system can quickly spiral out of control -- often with disastrous results. (I've seen firsthand the unfortunate consequences this can have on power plant equipment.) That's the point of having quizzes, homework assignments, multiple tests, etc.

Instead, law school seems to intentionally confuse students and lacks any form of meaningful feedback for your learning until it is too late to make any changes. It is by far the most inefficient method of education I have yet experienced and leaves a lot of casualties in its wake who come out lacking the grades they need to get a job that has a salary high enough to allow them to pay off the massive loans most of them take on. For the ones that do make it through this process and secure the high-paying jobs, they find themselves in a profession in which 25% of the people want to quit, and which has extremely high rates of depression, divorce and alcoholism. (Not only that, but lawyering can make you fatter too.) You might make well into the six-figures, but at what cost?

There are certainly a variety of strategies that can be employed to help succeed in law school and some people seem to discover them quickly and others more slowly. What I have a hard time understanding is how a system like this perpetuates itself and stays in place for so long? Unfortunately, I have to concur with Kennedy -- the ultimate purpose of law school seems to be not to effectively educate students to be legal professionals, but rather to enshrine and continue the established hierarchy.

I absolutely love the law. I really do. And I am incredibly grateful to have the opportunity to study it in depth. I just often wish there was a better way to learn it other than how it is currently taught at law schools.

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