Submitted by Jeremiah Ho
Massachusetts School of Law – Darmouth
Courtney G. Lee, Changing Gears to Meet the “New Normal” in Legal Education, 53 Duquesne Law Review 39 (2015) [Read fulltext at Duquesne Law Review website (635 KB PDF)]
I have never read an article about legal education that begins with such a vivid analogy between law schools and professional car racing. This is how Professor Courtney Lee begins her recent work, “Changing Gears to Meet the ‘New Normal’ in Legal Education.” The point of her analogy is to signal that in this time of “crisis” in legal education, law faculty members and administrators must, like race car drivers, “be aware of variations in the track—a hairpin curve, a shift in elevation—and change gears and speed to suit the conditions before losing control and skidding into the barriers, or worse.” In other words, we cannot stay stagnant in the face of change without risking catastrophe. It is time to change gears to meet the needs of this new normal.
Before Lee prescribes any solutions, she makes a very smart and precise diagnosis that specifically tracks what many law teachers have noticed with the current generation of students-they often come to our classrooms with a decline in critical thinking, writing, and reading skills as compared with previous generations of students. In the last few years, there have been several different uses of the “new normal” in legal education by different stakeholders in education and industry; the term, “new normal,” can refer to lower applications, lower enrollments, fewer big-firm jobs, or any of a number of other changes in law schools and in the profession in the last five years. Lee’s version of the “new normal” focuses on the change in skills levels of our current students. We are at a place where there is a gap between the faculty expectations and the realities of the critical thinking skills that entering law students bring to the law school setting. The cause of this reality is both economic and political—economic, from the standpoint of law schools, who often operate on tuition-driven business models and have made choices in the Great Recession to sustain entering class sizes but sacrifice applicant quality; and political because the applicant pools have been generally affected by aspects of No Child Left Behind and Common Core policies that emphasize high stakes testing over critical thinking instruction. At the pre-law, college-level stage, Lee observes that current undergraduates arrive lacking such preparedness for critical thinking and analysis, which forces colleges to have to play catch-up when the first two-years of college is the time when most gains in general skills occur. Yet then undergraduates go through programs that lack rigor, on the one hand, and also reward lackluster work with high grades, on the other.
Is this not going to naturally create qualitative back-ups in graduate programs and professional schools? Lee’s study here seems to indicate that it does and it has—particularly for law school programs and lawyer competency, where critical reasoning and writing play prominent roles in both instruction and practice. Her solutions are broad, but reflect a shifting of the gears that have been locked for law schools for decades. Her suggested “new normative” for the new normal entails a top-down approach beginning with fostering a culture of innovation that includes changing the financial structures of law schools, planning and implementing curricular reforms, and assessing our teaching and also the progress of our students more frequently. On the finance angle, Lee recommends that there has to be serious reconsideration between the value of law schools and the cost of tuition and how law schools must communicate value to the applicant pools. Her changes in curriculum would envision reforms on the structural level that include experiential learning opportunities and shortening the period for earning a J.D.—all with an eye toward establishing stronger connection between value and instruction. Lastly, in addition to more regular assessments of teaching, her calls for assessment reforms for students de-emphasizes the customary high-stakes assessment that occur at the end of the law semester with more holistic and frequent reflections of competency that also build student well-being and autonomy. In sum, this article is a must-read for anyone interested in both understanding and changing the course of law schools to deal with the new normal.