Law school has been described as a place for the accumulation of learni ng. First-year students bring some in; third-year students take none away. Hence it accumulates (White,1983, p. 23).
The purpose of this study is to probe what students learn in law school, particularly the avowed goal of teaching students legal reasoning or, as it is often phrased, "to think like a lawyer." The effectiveness of the three year legal education program will
be tested by comparing the performance of first and third year law students. The task will be essay questions of the type used throughout the three years of law school. To evaluate performance on the essay questions, four types of data will be collected: numerical scores of the essay answers; thinking aloud protocols made while the students write their answers; notes taken by the researcher while observing the students writing; and background information on the participants. The multiple types of data will allow comparisons to be made which have not been attempted in previous studies. If the groups of students differ, as it seems they should, then this study will have a better chance than previous studies to document the nature of those differences.
The effectiveness of legal education is important for many of the same reasons that have led to the intensive study of medical education's effectiveness. Both programs require the investment of substantial amounts of time and money; law school is a three year, graduate program. Both programs serve as gatekeepers controlling entry into the respective professions; completion of an accredited law school program is a prerequisite to taking the bar examination in most states.
In some ways, it is even more important to study legal education than medical education because the substance of what is taught in law school has been more often challenged. An early example is when King James, acting on the advice of Bancroft, Archbishop of Canterbury, said that the law was founded upon reason and therefore the King, using reason, could decide cases without judges. Lord Coke answered:
That true it was, that God had endowed His Majesty with excellent science, and great endowments of nature; but His Majesty was not learned in the laws of his realm of England, and causes which concern the life, or inheritance, or goods, or fortunes of his subjects, are not to be decided by natural reason but by the artificial reason and judgment of law, which law is an act which requires long study and experience, before that a man can attain to the cognizance of it. [Prohibitions Del Roy, 12 Co. Rep. 63, 65; 77 Eng. Rep. 1342, 1343 (1608).]
As will be noted in the review of the literature, three centuries later there are still those who would argue that legal reasoning is merely common sense or a specialized knowledge base and that three years of special law school education are not necessary. These challenges take on added urgency when one considers the progress of work on artificial intelligence and expert systems (e.g., Clancey & Shortliffe, 1984; Gardner, 1987).
In addition to questions about what is taught in law school, the teaching methods also have been questioned. The questions persist even though legal education has used the case method for teaching since the 1870's (Stevens, 1983). Stevens traces the political and educational arguments over traditional legal education and shows that, even very soon after the 1870's, questions were raised about whether law school education was appropriate for students other than the particularly quick or talented (1983, p. 118). Likewise questions have been raised about whether legal education is good preparation for persons who go into business (Slade, 1989) or even the courtroom (Burger urges curb, 1973). Although these questions about business or courtroom skills may appear to address separate areas of concern, it has been recognized that they have direct implications for law school programs (American Bar Association, 1979). They also have importance both for the students and the society which they will serve (Auerbach, 1976; Carrington, 1984). As Paul (1988) has noted, many students come to law school with virtually no training in complex problem solving and, if they do not receive it in law school, then law schools are "guilty of profound failure" (1988, p. 925).
Despite the parallels to medical education, and despite the seriousness of the questions raised, legal education has been subjected to far less empirical study than, for example, medical schools. The review of the literature will show that much has been written but most of it is based upon anecdotal data gathered from experience teaching in law school.
Unlike many previous works, this study will gather several forms of data and use both qualitative and quantitative methods of analysis. Even if Lord Coke was right, even if legal reasoning is something special acquired over a long period of time, this study's multiple data collection and analysis methods offer hope of isolating at least the contribution made by the last two years of the three year law school program. Isolating the difference between the legal reasoning of first and third year law students might then contribute to the resolution of the controversies about both the nature of legal reasoning and the effectiveness of legal education.
How does the legal reasoning of law students who have completed almost one year of traditional American legal education compare to that of law students who have completed almost three years?
Legal reasoning:
Legal reasoning is the set of cognitive skills which traditional legal education emphasizes. In this study, the definition of that set of cognitive skills will follow the work of Levi (1949), including the idea that legal reasoning is primarily reasoning from example to example using analogies based upon previously decided cases.
Traditional legal education:
Traditional legal education means law school teaching which follows the casebook model. The model teaches legal problem solving through application of legal reasoning to the facts and law of the problems. The model emphasizes the use of: sequences of appellate opinions illustrating the facts, law, and legal reasoning of prior legal problems; classroom questioning by the professor focusing on applying what is learned from the appellate opinions to new sets of facts; and essay examinations testing what is learned again focusing on application to new sets of facts.
One year of law school:
One year of law school means that thirty semester credit hours have been completed (typically ninety credits over three years for a total law school program).
Background information:
The preceding definitions, particularly the definition of "traditional legal education," show that this study will primarily address the teaching of legal reasoning via the casebook method. The origin and development of the casebook method will be presented in Chapter II as part of the review of the literature. However, to understand the plan of this study, some background information is appropriate in this introduction.
Reading the preceding definition of "traditional legal education" does not necessarily tell one very much about the casebook teaching method being described. One can envision a professor asking a student to give the facts of a case, to summarize what the court did, and to explain the reasons with comparisons and contrasts with other cases. However, even that exchange between the professor and student can take many forms as is illustrated, for example, by Turow's (1977) descriptions of his first year law classes. Despite the possible variations, the gist of the method was perhaps best expressed by Harry W. Jones (cited in Kelso, 1972), an acknowledged master teacher, when he explained how he used sequences of cases:
1. A general sequence for class learning: encourage students with respect to what they know and have learned; create doubt on some matter; then resolve that doubt or break it into the ingredients of an answer.
2. One very helpful device for creating and resolving doubt is to state hypotheticals or give professional skill variations such as challenging the students to draft a document that will restructure a transaction to change the way in which law applies to it (p. 608).
Jones' explanation also helps show why the case method of teaching is sometimes called "Socratic." Although working with larger numbers than Socrates did, the law professor also uses questions to encourage students in what they know, alert them to what they do not know, and lead them to ways in which the unknowns might be resolved.
The definition of "traditional legal education" also is not meant to imply that only the casebook method of instruction is used in law schools. Levin (1989), for example, outlines the many teaching approaches currently in use. However, as will be further
developed in the review of the literature, the case method appears to form the core around which most law schools build the rest of their curriculum. This is especially true when one examines the portion of the curriculum designed to teach legal reasoning.
Finally, in regard to the definition of "legal reasoning," that phrase will often be used interchangeably with the phrase "legal thinking." The reason is that legal literature often uses "legal reasoning" as synonymous with "thinking like a lawyer." Therefore, to the extent that legal literature is used in this study, it will be difficult to maintain a rigid distinction between "legal reasoning" and "legal thinking." However, it is not the intent of this writer to suggest that thinking and reasoning are, in fact, synonymous terms. To a lesser extent, the review of the literature will illustrate a blurring of the lines among the concepts of "thinking," "reasoning," and "problem solving." References to prior studies will follow the terminology selected by the original writer but following that usage is not meant to imply that the writer of this study considers the concepts synonymous.
This study has the opportunity to pioneer new approaches to the study of legal education. The review of the literature will show that previous studies of legal education have been based primarily upon the teaching experience of the various writers. This study will break new ground by using multiple data collection and analysis methods taken from both the legal research tradition and the research on thinking, reasoning, and problem solving more generally.
Since this study attempts to break new ground, the review of the literature will have to explain how several different research approaches have been selected and combined. From the legal research tradition, the review will show how the work of Bryden (1984) is closest to the goal of this study. Using Bryden's work as a starting point in the legal research tradition, the review will also show that legal research on legal reasoning has usually focused on the case method of teaching and the use of essay questions as a closely associated measurement method. The use of essay questions turned out, by hindsight, to be central to the results of this study. Therefore the review of the literature will provide an extended treatment of how the case method has a central role in legal education. That central role led to the use of essay questions in this study.
In examining legal literature, the review also will show why the selected definition of legal reasoning is appropriate for this study. Levi's definition has especially close ties both to the case method of instruction and to problem solving studies more generally. Specifically, his definition can be linked to the work of Polya, Sternberg, Schon, and Collins. Tracing some of these links will help the review's transition to the literature on thinking, reasoning, and problem solving more generally.
The larger body of literature on thinking, reasoning and problem solving will not only help put this study in perspective but it will also provide an additional research tool in the form of thinking aloud protocols. Although other research approaches have been fruitful, and although the use of thinking aloud protocols has occasioned some controversy, nonetheless thinking aloud protocols provide an easily integrated supplement to the previously selected measurement approach using essay questions. Previous research indicates that having persons say what they are thinking does not appear to interfere with a task like writing answers to essay questions. Using both research approaches will allow the collection of both the product data, the written answers, and also process data, the thinking aloud protocols.
Chapter III will be devoted entirely to explaining in more detail how the essay questions and thinking aloud protocols were collected. The outline of the design was that first and third year law students would write answers to essay questions selected to allow the demonstration of the students' legal reasoning. While the students were writing, they were asked to verbalize what they were thinking. Data was collected from each student in individual sessions so that the researcher could observe and videotape the process. Four kinds of data thus were produced: protocols transcribing the students' thinking aloud comments; written student answers; notes taken by the researcher while observing the students work on the essay questions; and background information about the participants.
Both the written answers to the essay questions and the background information about participants were examined using quantitative methods. The written essay answers were first classified by independent evaluators. The classifications they used were tied to Levi's definition of legal reasoning. Their classifications were converted to numbers so that group means for first and third year students could be computed and statistically compared. Likewise background measures such as undergraduate grade point averages were computed and compared.
The thinking aloud protocols and the researcher's notes were examined using qualitative methods. Selected portions of the students' thinking aloud comments were transcribed into written protocols. Those protocols, in conjunction with the researcher's notes, were then examined for patterns in the students' legal reasoning.
Chapter IV reports the findings of this study. Contrary to the researcher's expectation, the overall finding was that there was no significant difference between the legal reasoning of the first and third year student groups. Even more contrary to the researcher's expectations, the only exception was data from one essay question that showed the first year student group doing significantly better.
Chapter V tackles the problem of discussing and explaining these findings. It reviews a number of possible explanations, including the inherent limitations of this study, the problems attendant to the use of essay questions, and the nature of what is being learned.
The preceding paragraphs give an overview of this study. The next steps are to place this study within the larger research context and to provide a foundation for the research choices made in the design and conduct of this study. Both of these steps are taken in the next chapter on the review of the literature.