by Steven Friedland

A lot has been written lately about the state of legal education, from applications to jobs and to what lies in between.  By “between,” I mean the meaty center of the sandwich, the nature of the education itself.  This post comments on that sandwich stuffing.  In particular, what would happen if the proposed American Bar Association (ABA) Standard 302, Learning Outcomes, is adopted? (See also.)

The current Standard is titled, “Curriculum,” and focuses on curricular content.  The proposed standard provides a philosophical shift to revolve around learning outcomes.  The new standard has the potential to be transformational.

You see, legal education is coming late to the outcomes game.  While the idea of learning outcomes is commonplace in universities and other graduate programs, legal education has been steeped in the Socratic dialogue and a focus on appellate cases for more than a century.  (It was a Harvard professor, Christopher Columbus Langdell, who essentially invented the casebook in the 1870s and permitted legal education to join the academy, instead of being primarily an apprenticeship program.).  Law professors covered certain areas of substantive law, like Torts, Contracts, Property and Evidence.  Students were required to absorb and apply the rules to novel fact patterns, often through hypotheticals.  One professor I knew at another school, for example, was so efficient at covering material, he would routinely finish his course several weeks early. (The students appeared to find this early finish beneficial, at least until they had to take the final exam.)

But the world has changed.  And we law professors had better adapt.  Law students need pathways to law practice and jobs, and law schools have to provide better metrics that students are learning what they need to learn — if not enough to begin practice on their own, at least enough to see what it will take to survive and prosper.  We can no longer just “cover” material, expecting students to receive a mini-apprenticeship when they graduate. That is just not realistic anymore.

This is where the proposed ABA standard comes into play.  The proposal being considered effectively requires law schools to “identify, define, and disseminate each of the learning outcomes for its graduating students and for its program of legal education. The outcomes shall include competency as an entry-level practitioner.”   This is a mouthful, as rules promulgated by lawyers often are.  But it says in essence that it is not what teachers teach than matters so much, but what the students learn.  This standard, then, is kind of like a warranty.

As cultural anthropologists Clifford Geertz once wrote,  “Law is a distinctive way of imagining the real.”  The proposed standard reimagines legal education.

The learning outcomes approach could provoke law schools to create course outcomes and yearly outcomes, as well as outcomes at the end of school.  It could facilitate better labeling of courses, including their components and results, much like food ingredients are now prominently displayed on labels. Professors would be viewed more as fiduciaries of the process and less as course owners.  We can learn from our undergraduate colleagues about how departments interface with each other to achieve university-wide goals.

I saw outcomes in action recently, having just taught an Advanced Evidence course that was a delight on many levels.  It was an Evidence course wrapped around a mock trial.  It was this combination that provided students the opportunity for experiential learning, theory and practice all rolled up into a single course.  The learning outcomes probed deeply into certain areas of evidence, such as character, impeachment and hearsay, but also included trial skills, strategies and tactics.  This combination illuminated a pathway to practice for the students – trial law — that allowed them either to kindle a desire to pursue this avenue of practice, or foreswear it, having had the opportunity to “try it on for size.”

Some of the students were hesitant about leaving the comfort of the classroom for the courtroom and all were “stretched” and challenged by different aspects of the experience, from responding quickly to objections to standing up before classmates and a jury of incoming law students. (There apparently was an old study finding that the number one fear of people was speaking in public.  The number two fear? Dying.) But after it was over, you could see the satisfaction on their faces.  What is that saying about the tougher the road to achievement, the more worthwhile it is? Also, I felt like there was more built-in collaboration.  I was able to provide some guidance beforehand, while also playing judge and facilitator during the trial.  For example, I made objections as well as opposing counsel, asking for responses from both sides.

If this is the direction legal education is heading, I am all on-board.  Who says you can’t teach an old dog new tricks?

Steven Friedland, Professor of Law and Senior Scholar at Elon University, has co-authored several Constitutional Law, Evidence Law, and Criminal Procedure textbooks, as well as three books on law school teaching.