Over at PrawfsBlawg, Rick Bales raises an issue that has totally eluded me up to now, but that may serve to recreate law school in the same way that over-assessment has undermined the point of showing up in high school three days a week.  Testing.

An issue that’s hot right now in higher education generally, and becoming hot in legal education, is outcomes assessment.  How do we know that students are learning anything from our courses?  Single, end-of-semester examinations and bar examinations are poor determinants of student learning.  They both are summative rather than formative, meaning that students do not find out until it is too late whether they are learning the material at an adequate level (contrast weekly quizzes – if a student regularly performs poorly on quizzes, the student knows she needs to step up her game).  They both are snapshots: they demonstrate what a student knows at a single point of time rather than what is retained over time.  For both, there is very little correlation between what is tested, how it is tested, and real-life law practice.

Many things are mixed together in this paragraph, and have the potential to fundamentally alter the way law is taught.  Some may think this is good. Others not so much, but it’s a hot topic within the Academy and yet practicing lawyers, the consumers of law school products, know almost nothing about it. 

Paul Lippe recently started a debate over whether law school 4.0 should focus on the theoretical or practical, and it dealt with some critical issues for the future of lawyers.  Academics disagreed.  While that side of the issue remains unresolved, the testing side can sneak up on us and similarly do a whole lot of damage.  It’s hardly a benign problem for the consideration of lawprofs alone; When law school education is assessed on a regular basis rather than just a final exam, the mechanics of how law is taught will change.

My initial thought is that we already have lawprofs in the classroom.  Don’t they know, via Socratic Method, who has a clue and who doesn’t?  But then I remember that Socratic Method is no longer the favored form of pedagogy, and that it’s no longer acceptable for teachers to tell students that they’re wrong.  That would harm their fragile self-esteem, and subject the law schools to angry phone calls from the parents circling above.  Nobody wants to hear from the parents.

The demand for constant assessment, which for some strange reason has become accepted as the routine, may result in teaching to the test, or the death of inspirational lawprofs, or simply taking away the time that was earlier used to teach law.  Maybe this isn’t such a bad idea after all?  But if assessment became the rule, some of the most important things I learned in law school would never have survived.

Then there’s the question raised by Rick about the correlation of testing and the practice of law.  One final exam is, obviously, summative.  But then, so it a jury verdict.  It’s not like you get to go back and redo your cross after the jury foreman says “guilty”. 

But the aspect of this demand for assessment that strikes me as most troubling is the maturing-down of law school.  While perpetual adolescence is a widespread problem for the Slackoisie, and evidenced by the comments at Above The Law, which caters to the younger set, and Sweet Hot Justice, confronting such monumental concerns as associates having acne outbreaks, law students are supposed to be capable of counseling clients shortly after they leave the hallowed halls.  This demands a certain level of judgment and maturity.

If law students can’t be trusted to exercise the level of maturity necessary to assess themselves, their work ethic, their knowledge, their understanding, and need the nanny to test them weekly to make sure they aren’t missing something or falling behind, then will they be capable of demonstrating the level of maturity necessary to fulfill their function as a practicing lawyer?  Bear in mind, not every law student will be warming a chair in the Biglaw library.  Some will actually have to go out and work for a living, and will be expected to be a lawyer from Day 1.

It’s difficult to say whether the calls for continued regular assessment reflect an extant failure of maturity on the part of law students, or whether it will be the cause of prolonged adolescence.  If the former, then it’s too late.  If the latter, then we’re putting another nail in the coffin of the profession.  But either way, it would be wise for the practicing bar to put in its two cents before another seismic shift in how law is taught happens without our knowing.