The culture of law school is at the core of the problem. In
The Law School Matrix: Reforming Legal Education in a Culture of Competition and Conformity, Professor Susan Strum of Columbia Law and Professor Lani Guinier of Harvard Law describe the genesis of this culture, and the feedback loop between the curriculum and the culture. This feedback loop has kept law school curriculum and teaching methods amazingly static over the past century. The takeaway message from this article is that to reform law school, you cannot just focus on the curriculum, but you have to address the culture and make efforts to shift it if any reforms are going to take hold.
The source of the culture of competition and conformity is the law school matrix, which is a series of institutional systems, methods and cultural practices/rituals and reinforce this culture and maintain the current law school system.
The authors list a series of recent curricular reforms that would benefit from a focus on cultural reform. In general, the goal of these reforms has been to expose students to a broader range of knowledge and skills as well as foster a stronger legal imagination in students. The following are a few example:
* Expansion of the topics covered by curriculum beyond the traditional adjudication and courtroom focus (a focus which is increasingly has become less and less central to the practice of law over the last 50 years). This kind of reform seeks to development of a wider range of skills and wider forms of knowledge. New courses such as problem solving strategies, comparative law, public law, transactional work, international law
* Expanded clinical and externship programs so students are exposed to what lawyers actually do.
* Reducing class size and more interactive and problem-oriented pedagogy.
Hastings is attempting several of these approaches to reform, and I fear unless we confront the problems with the culture, these reforms will fail. As a human guinea pig in the Law in Context program that Hastings attempted last year, I can see how a focus on a building a better culture would have gone a long way from preventing the failure of the program.
The culture we are confronted with is defined as "the incentive structures, peer pressure, dominant rituals, unspoken habits of thought that construct and then define the interpersonal, institutional and cognitive behaviors and beliefs of members of the educational community." This culture is as much unconscious and unseen as it is a conscious endeavor. To change this culture, the authors suggest we target its sources:
Metrics of success are at the core of the cultural production, as they set up incentive structures which in turn moderate student and faculty behavior. These metrics include grades, performance in class, journals, moot court, clerkships, internships, jobs, and after graduation, money and status. There is little feedback for students outside of these, which encourages students to develop an unhealthy attachment to these external motivators as opposed to embracing their internal motivations. The fact that every metric of success is a competition against everyone else is a central reason why law school feels so competitive. Not everyone gets Bs even if everyone does grade B work, and not everyone gets into Journal or Moot Court. Moreover, "success" is defined as a combination of these metrics and only so many people will manage to be "successful" leaving the rest of us as "failures." These distinctions are completely arbitrary and incredibly damaging to students. The emotional scars from this can last a lifetime and create widespread emotional devastation throughout the legal profession. Is it any wonder lawyers are so prone to alcohol abuse?
The way learning in structured produces a significantly competitive culture. There are implicit rules in any social situation that we absorb through simply being there. In the law school classroom context, where students learn collectively through questioning by the professor, students learn what to value through how the professor moves the discussion, what questions the professor asks, and the assumptions made by the group. The values and assumptions that law school holds and imbues students with are usually very different than the values that students entered school with. I know these values were and are quite different than my personal values. More than that, the metrics of success and the structure of learning encourage students to define their sense of self based on how well they "get it" as measured by their performance in the classroom and their "success." The pressure to "get it", compete and keep up with everyone comes to define the law school experience.
The role of conflict is central in law school, being built into the classroom environment itself. The litigation-centric curriculum and emphasis on the adversarial framework generates competitive feelings throughout the student body and imbues us with a sense that truth is established through competition (a notion which to any scientist is obviously false). The Socratic method trains us to seek out weaknesses and validate "winning" arguments, where winning can feel arbitrarily defined. Such a single-minded focus on this method trains students to view conversation as a battle they must compete in to "win" the conversation and be validated as intelligent and worthy. It also encourages students to identify good lawyering with quick-witted verbal reparte instead of deliberate, thoughtful and moral thinking. That skill may be useful for trial advocacy, but most lawyers do not go to court anymore. The conflict-centric method of teaching creates the assumption in students that conflicts are resolved through competition with a win-lose outcome. That is not the reality of the world, where the overwhelming majority of cases settle and alternative dispute resolution is becoming more and more common. The authors go on to tie links to the grading process and court-centric curriculum in explaining that students are discouraged from considering other forms of inquiry into a problem, such as from a moral point of view. An adversarial centric framework also pushes out other frameworks, such as: deliberative, legislative, transactional, collaborative, and restorative approaches to problem solving. Needless to say, the adversarial method is not the most commonly used method in real life, or the most productive to solve problems.
The prevailing notions of expertise that professors present is one of detached logical mastery. They focus single-mindedly on doctrine and analytical skills at the expense of other essential skills, such as interactive, interpersonal, organizational and other non-doctrinal elements of life as a lawyer. Is it any wonder that law firms complain that new graduates are poorly prepared for practice? The intellectual mastery notion of expertise that professors present pushes students to search for what they think the professor wants to hear and devalue our own thoughts on the subject. The same is true of our classmates' opinions, as most students turn off when other students speak and wait for the professor to validate what they have said.
More frightening to me is the lack of interest that professors show in the development of students as learners and lawyers. Everything beyond the classroom environment is beyond the responsibility of the professor. This detachment also discourages students from attending office hours. I have read several studies, including the
Henderson Report which state that student performance is immensely impacted by how much they perceive that their teachers care about them and their success. And the few faculty that do devote time to students do so at their own "expense" as they are not rewarded by the institution, and actually punished because they have less time for their core functions of scholarship and in-class teaching.
The segmentation of dimensions of learning into the intellectual, professional and personal fragments how we see the world. With professors not taking any interest in our professional or personal development, the intellectual/academic sphere is separated into the classroom environment where personal view and professional aspirations are not valued or relevant. We are not given the opportunity to make sense of how what we learn in class integrates with practice or our personal values.
The professional development agencies in our school (i.e. career services) seem to focus on short-term placement and less on getting to know us as people and advise us on long-term career options. Since interviews and corporate wining and dining are one of the few validating experiences law students get, we are vulnerable to the trap of changing our identity to fit with a corporate ideal. The seemingly irrelevance of our personhood to both the classroom and the job hunt deadens our moral sensibilities and is profoundly discouraging for students who had real goals before law school.
The incentive structure is the last factor. Closely related to the metrics of success, this system pushes both faculty and students into this unhealthy culture of competition and conformity. Students feel like they can't take risks or they won't "succeed," so they try to conform to what feels like the safe path, because everyone is taking that path. Faculty are pushed by the appointment and tenure system as well as scholarship demands. And people start to look at their rank in the performance index to determine their self-worth and self-esteem. Everyone who goes to Hastings is brilliant and capable, why do we embrace a system that makes us feel like failures? The incentive structure for both students and faculty needs a drastic overhaul.
Anyone who goes to law school can attest at how painful it is, and that pain comes from this corrosive culture that undermines our identity, self-esteem and values. It substitutes external motivations for our own internal morals and motivations and emotionally scars us. Students become desensitized to their internal moral compass and rely on external metrics to determine our self-worth. Law school causes us to lose touch with who we are, and live lives we are not fully comfortable with. As lawyers we become further demoralized and our sense of being lost increases. The damage law school causes reverberates through the entire profession.
Next post will discuss the changes that the authors suggest.
