By Beth Hirschfelder Wilensky. Full Text.
What if we are teaching law entirely wrong? We fill our syllabi with appellate court opinions—even though very little of what most attorneys do involves reading these opinions to learn foundational legal doctrine. We cold call on students—even though most circumstances in which attorneys talk about the law bear no resemblance to the classroom cold call. We give over significant parts of our class time to Socratic dialogue—even though attorney practice mostly involves writing and rewriting a variety of legal documents, collaborating in small groups, negotiating, client counseling, and many other things that Socratic dialogue doesn’t teach, model, or assess.
This trio of teaching methods, which we inherited from Christopher Columbus Langdell, has many flaws. I identify a fundamental one: our overreliance on the case method, cold calls, and Socratic questioning incorrectly tells our students that their facility with these classroom methods is a measure of their lawyerly skill. That makes our pedagogy inauthentic. And so I propose this Authentic Pedagogy Test: law school pedagogy should accurately inform students about the likelihood that they will be successful and satisfied practicing attorneys.
My thesis is not that we should abandon Langdell’s methods entirely. Rather, we should consider the opportunity costs attendant to allowing them to occupy so much of our teaching space, especially in the 1L year. If we gave over less space to these traditional teaching methods, we would free up room to do many other important things. We would have room to engage students with all of the different ways that lawyers use the law in their work and work product, particularly in transactional practice. We could focus our students’ attention on the work that attorneys do for clients, and what it means to represent a client. We could engage students who do their best work in collaboration with others or when given an opportunity to reflect before speaking—both things that attorneys regularly do in practice. And we would be able to provide opportunities for students to build and use expertise like attorneys, who often approach legal problems in a very different way than novices do.
All of these are things that some law professors already incorporate into their doctrinal classes to some extent. But these methods still take a backseat to Langdell’s trio of case method, cold calling, and Socratic method. The Authentic Pedagogy Test suggests we can do better, and provides a guiding principle for how.