II. Current Paradigm versus New Paradigm

A. Current Paradigm

Rapid change, technology, diversity, global competition, increasing presence of adult learners with learning disabilities, and the growing problems in the profession have challenged legal educators to adopt teaching methodologies that meet the needs of individual students and the profession as a whole. To successfully meet the challenge, legal education must undergo a paradigm shift similar to the one that has been happening in higher education generally.

In the current legal education paradigm, the faculty is the focal point—“Sages on the Stage.” ⁽⁷⁾Johnson, Johnson, and Smith articulated the characteristics which define faculty teaching under the current paradigm:

· transferring knowledge and skills from faculty to students;

· filling “passive” students with knowledge and skills;

· classifying and sorting students into categories;

· maintaining a competitive organizational structure;

· conducting education within a context of impersonal relationships; and

· assuming anyone with expertise in law can teach without training. ⁽⁸⁾

Transferring Knowledge and Skills From Faculty to Students. The use of the Langdellian teaching method has characterized law school teaching and creates a highly competitive environment. The Langdellian teaching method, also known as the Socratic Method, ⁽⁹⁾ has been the dominant pedagogy in law schools for more than 100 years. ⁽¹⁰⁾ Under the Socratic Method, law students read cases and the faculty engages them in a question and answer exchange regarding those cases. ⁽¹¹⁾ The near exclusive use of the Socratic Method places the faculty at the center of the classroom. ⁽¹²⁾

Filling “Passive” Students With Knowledge and Skills. First year law classes usually have between 70 and 90 students. It is through the faculty's skill at questioning that we assume the students develop analytical skills. However, even the best of socratic questioners can only actively and effectively engage four to eight students per fifty minutes. ⁽¹³⁾ Thus, within the typical socratic classroom environment, most students are passive participants in the learning process. ⁽¹⁴⁾

Classifying and Sorting Students Into Categories. Under the dominant teaching methodology, we classify and sort students not on what they learn (criterion-referenced), but on how they compare with other students (norm-referenced). ⁽¹⁵⁾ Typically, law professors give students one exam per semester. From that one exam, faculty curve the grades, rationing out the limited “A's” and “B's” that students can receive. Thus, law professors engage in testing to decide who gets the rationed “A”, law review, moot court, access to large firms, high paying jobs, court clerkships, and the opportunity to become law professor's themselves.

The system's quasi-religious adherence to ranking devalues human beings, distorts the legal system into a cultural compactor, and diverts scarce resources from truly legitimate educational goals. In short, ranking students on the curve, arguably once a useful technique for screening unprepared students, deserves a quick administrative death. ⁽¹⁶⁾

Maintaining a Competitive Organizational Structure. We conduct this sorting methodology within a competitive environment. Most law schools use some form of grading curve or grade normalization. Both grading curves and grade normalization limit the number of “A's” and “B's” that are given in each class. Such limitation guarantees competition among students for the limited resources. ⁽¹⁷⁾ Perhaps more importantly, grading curves include “failing” grades. Thus, the competition is fierce to avoid failure.

Conducting Education Within a Context of Impersonal Relationships. Law professors often treat students as interchangeable. Law professors teach as if prior education, experiences, background, learning styles, race, gender, class, culture, religion, and sexual orientation are irrelevant to learning. Thus, we rarely modify our teaching methods based on the characteristics of any particular class. ⁽¹⁸⁾

Assuming Anyone With Expertise in Law Can Teach Without Training. The only requirement for teaching in law school is superior academic grades from top rank law schools, law review experience, prestigious judicial clerkships, scholarly publications, and having most of the current faculty believe you will fit in. Law schools require no prior training to teach, no prior teaching experience, and sometimes no experience practicing law. ⁽¹⁹⁾

Summary. There are many proponents of the current paradigm. ⁽²⁰⁾ They continue to use a classroom pedagogy that requires students to sit passively and silently and to compete with each other for an artificially constructed scarce resource. Faculty may conform to the Langdellian method because we do not want to appear stupid, unfit, and because we are afraid to challenge the collective judgment about how best to teach. Thus, we carry the current paradigm of law school teaching on through sheer momentum; while, like the emperor without clothes, we persist in pretending that all is well. Nevertheless, all is not well!

Traditional legal pedagogy is under attack. ⁽²¹⁾ Some scholars believe that it warps personality, undermines ethical and social values, and fosters cynicism. ⁽²²⁾ Many scholars believe that traditional legal pedagogy causes significant psychological distress in students ⁽²³⁾ that continues into the practice of law. ⁽²⁴⁾ Students who come to orientation happy, eager to learn the law, and eager to make a difference, become isolated, angry, suspicious, and bitter. ⁽²⁵⁾ They focus not on improving their knowledge and skills, but on what they need to do to earn an “A.” Law students become obsessed with grades. ⁽²⁶⁾

The problem with traditional legal pedagogy is that it is a “one-size-fits-all” approach. ⁽²⁷⁾ Traditional legal pedagogy does not teach relevant skills to varying levels of entering abilities. Traditional legal pedagogy fails to clearly identify for students what they need to know and need to be able to do to succeed in law school. Thus, the proliferation of “how to succeed in law school” books. ⁽²⁸⁾ Moreover, traditional legal pedagogy fails to teach clearly and precisely the thinking skills embodied in the phrase “thinking like a lawyer.” Students are placed at a disadvantage not because of lack of ability or their effort, but because traditional legal pedagogy fails to provide adequate opportunities for students to learn and improve their skills through practice and critique. Further, the current paradigm disadvantages certain groups of students (minorities, women, extroverts and feelers, and the learning disabled) more than others. ⁽²⁹⁾ These students are often isolated, alienated, and disenfranchised. ⁽³⁰⁾

Arguably, the current paradigm does not adequately serve the purpose of training lawyers for the practice of law. ⁽³¹⁾ It does not prepare lawyers for the practice needs of the 21st century, lawyers who can help a multi-cultural and diverse world mediate and arbitrate their differences. ⁽³²⁾

B. New Paradigm

Legal education is making a change. Ever so slowly, professors are dropping the old paradigm of teaching and adopting a new paradigm. Many legal educators hunger for a change. They are actively discussing alternatives. ⁽³³⁾ In one survey, 29 percent of the law faculty said that they used new approaches “very often,” 56 percent said “sometimes,” and 15 percent said “rarely,” none said “never.” ⁽³⁴⁾ However, the issue is not merely whether we use the case method or the problem method; whether we use discussion method or Socratic Method; or whether we teach in small classes or large classes. We need to shift our thinking and paradigm about student learning and faculty teaching. Johnson, Johnson, and Smith have articulated the principles on which such a paradigm would be based:

·

Students construct, discover, transform, develop, and extend their own knowledge and skills;

· Students construct knowledge and skills actively, not passively;

· Faculties aim their efforts at developing students' competencies and talents;

· Education is a personal transaction;

· Only a Cooperative Learning environment can achieve all of the above; and,

· Teaching is the complex application of theory and research that requires considerable instructor training and continuous refinement of teaching skills and procedures. ⁽³⁵⁾

Students construct, discover, transform, develop and extend their own knowledge and skills. Law professors must put more of our effort into creating the conditions within which students can construct their own meaning and develop their own skills. ⁽³⁶⁾ Students will need to do this through their own cognitive structures. Because students not only have different skill levels, but also different cognitive structures, we cannot continue a “one-size-fits-all” approach to teaching. ⁽³⁷⁾ Certainly, many upper-classes are in small groups. However, Cooperative Learning is not about merely having students in small groups, but about being involved in a structured learning environment that promotes cooperation. ⁽³⁸⁾

Students construct knowledge and skills actively, not passively. Learning is an activity within the control of the learner. Learners must be actively involved in the classroom in order to bring forth their existing cognitive structures or to construct new ones. ⁽³⁹⁾ Learning is not a spectator sport, yet we know that in whole class questioning, students respond only 50 percent of the time. ⁽⁴⁰⁾

Faculties aim their efforts at developing students' competencies and talents. Law schools should be “adding value” to students' skills and ability. That “added value” should be based on cultivating and developing all students. Instead, law faculty and law schools engage in a process of quality control reliant upon selection and weeding out. That is, law schools equate the quality of students education not with the educational process, but the admission process. Median LSAT and UGPA become the measures of quality. ⁽⁴¹⁾ Law schools admit the highest achieving students possible and become a holding ground for most of the other students. Law schools give almost no attention to developing law students with marginal skills. Once admitted, law schools attempt to assure quality by “weeding out” the “unqualified.” Many law professors look at a student's failure as evidence of the student's lack of intellectual ability to be an attorney. Few professors take students' failures as evidence of the failure of the educational process. Under the new paradigm, law professors would monitor the performance of students throughout the semester, provide help and support when students falter, examine educational and teaching practices when students fail, and modify practices to prevent student failures in the future. Under the new legal paradigm, law schools would not focus on classifying and sorting students into categories seen as fixed and unaffected by effort and by education. Law schools would focus on developing the potential of all students.

Education is a personal transaction. Education, by its nature, is a social process that we cannot effectively conduct except through interpersonal interaction. The law school must become a community of committed scholars by building personal relationships with students. Law schools must create the conditions where individuals have the necessary social support to achieve. This is particularly important because law students are under significant pressure to achieve. The knowledge is difficult to learn, the skills are hard to develop, and many law students cope in inappropriate ways. ⁽⁴²⁾

Only a Cooperative Learning environment can achieve all of the above. The competitive environment of the law school causes students to reduce communication with each other and faculty and to provide other students with misleading and false information. ⁽⁴³⁾ Many professors and students view helping or receiving help as cheating or as spoon-feeding. ⁽⁴⁴⁾ Students are isolated, and the relationship between professors and students is often negative. Competitive and individualistic learning situations discourage “active construction of knowledge and the development of talent by isolating students and creating negative relationships between classmates and with instructors.” ⁽⁴⁵⁾

Teaching is the complex application of theory and research that requires considerable instructor training and continuous refinement of teaching skills and procedures. The new paradigm would require professors to view the development of teaching skills as a lifetime effort. Helping students construct their own knowledge and develop their own skills, in an active, cooperative way with classmates, requires training and skill development. ⁽⁴⁶⁾