The State of Legal Education in 2023

The Bencher  |  March/April 2023

By Michael H. Schwartz

Notwithstanding the COVID-19 pandemic and legal education’s resulting precipitous lurch to online teaching, the racial justice reckonings and the resulting challenges for legal education, and society’s struggles with the rule of law and truth, legal education in 2022–2023 is the best it has ever been.

Law teaching has become increasingly informed by modern brain science to the betterment of student learning. Law school curricula now focus more concertedly on teaching lawyering skills so they produce practice-ready graduates; law schools are more connected to the bench and bar; law students are better supported and cared for; and law schools and their faculty are providing more service to their local, state, and national communities. While it is not easy to see the good in an era so filled with turmoil, acrimony, and upheaval, it is noteworthy that we are at the beginning of a great era in legal education.

Brain science, though still a relatively new field, certainly has hit law schools. It turns out that while terror and bullying may have worked for some law students, there is no evidence that mistreating students helps them better learn law (or anything else). Law faculty continue to communicate very high expectations to their students and to hold students accountable for the work. However, in the 2020s, when we are communicating those high expectations, we also make sure students understand that we believe they will meet or exceed our expectations. Similarly, law faculty continue to ask our students challenging hypothetical questions in class. However, we now deliver those questions both verbally and via our slides, and we are more likely to ask students to discuss their analyses with a peer for a minute or two before we call on a student to provide an analysis. As a result of both of these practices, the quality of students’ insights is much greater and a larger number of students contributes to the discussion and learns from it.

Other brain science contributions are less ubiquitous in law school classrooms but are certainly gaining enthusiasts among law professors. In particular, studies have found that asking students to answer multiple-choice questions regarding concepts before the professor teaches them results in greater learning. Likewise, having students work in small groups to analyze problems is much more effective than calling on one student to recite an answer and hoping the other 70 or so students in the room are playing along in their heads answering the professor’s questions. Finally, the single end-of-the-semester or even end-of-the-year exam is slowly following dinosaurs into extinction; increasingly, particularly in bar-tested courses, professors administer one or more midterms and mini-quizzes. The additional assessment helps students learn the material better and, by introducing more data points, ensures that any conclusions regarding performance are more accurate, while also reducing some of the stress of a single exam assessment regime.

Law schools are also choosing to supplement our traditional discussions of legal theory by inviting the bench and bar to enhance their curricula. Nearly half of all law schools require all students to complete a clinic or externship, and several require students to complete two such experiences. Many law schools have expanded legal writing instruction into the second year and require that upper-division students take a significant number of skills-focused courses, addressing important practice skills such as negotiations, taking depositions, selecting juries, drafting contracts, and working with expert witnesses. A significant number of law schools also require each student to choose an alumni mentor, who then invites the student to job-shadow the alumnus, brings the student to a professional networking event, and helps the student navigate those experiences.

Law schools also have dramatically enhanced how they care for and support their students. Law schools offer workshops on a wide variety of topics integral to students’ success, including networking, dealing with imposter syndrome, resume writing, and interviewing. Law schools, like all of higher education, also offer more opportunities for psychological counseling, bring therapy dogs to campus during midterms and finals, do wellness checks for students who are struggling, and provide grocery gift cards or bags of food to students experiencing food insecurity.

During the pandemic, when students were mostly trapped in their homes and taking classes online, law schools supplied computers and internet access to students who could not afford either and sent care packages to students to let them know that their law schools supported them. Law schools also provide extensive career support services, and many offer free post-graduation bar support to supplement what the bar review courses deliver. At my law school, faculty, staff, and administration cook favorite dinner foods and desserts and serve the students dinner on the last night of the semester to wish them good luck on finals.

Many law schools also offer programming and safe spaces tailored to meet the needs of first-generation students and students who are members of underrepresented groups in the profession. Moreover, many law schools responded to the racial justice reckoning by creating courses and programs designed to teach students about bias, develop their cross-cultural proficiency and cultural humility, examine the ways in which racism pervades the law and legal system, and emphasize a lawyer’s duty to work to eliminate racism in the law and legal system. The practices have now been codified as a required part of all law school curricula by the American Bar Association (ABA) in ABA Standard 303(c).

Law schools also have come to see themselves as important contributors to their communities, and those efforts are widespread and varied. First, having recognized the importance of practical training and implemented efforts to ensure students can have those precious experiences, law schools also have had to expand the clinical services they provide. While traditional poverty-law and housing clinics still abound, modern clinical offerings include civil rights clinics, environmental advocacy clinics, homeless advocacy clinics, immigration or asylum clinics, transactional clinics serving small and start-up businesses, elder law clinics, mediation clinics, animal law clinics, domestic violence and protection clinics, disability rights clinics, art law clinics, legislative clinics, and many others.

Second, law schools have created extensive community programs to support reforms to policing, have headed efforts at law reform, have created or participate in pipeline to law school programs, and have assisted with and developed efforts to support and educate the public about the rule of law. Finally, law faculty regularly testify to legislative bodies; draft proposed legislation, amicus briefs, and moot appellate arguments for practicing attorneys; assist with judicial appointments; serve on state bar committees; deliver continuing legal education (CLE); train CLE providers; participate in and serve as leaders of Inns of Court; and offer public programs on important issues, such as proposed initiatives presented to the public for voting.

Legal education does still have plenty of room for improvement. Law students have higher rates of depression, anxiety, and substance use than their peers in all other graduate and professional degree programs. Nationally, bar pass rates have declined some. The professoriate remains largely white and male, and, similarly, students of color are underrepresented in most law school’s student bodies, the legal profession and, most of all, in leadership positions in the profession. More significantly, U.S. News & World Report rankings disproportionately influence law school choices, even as to matters that have nothing to do with student learning and preparation to practice law.

On balance, however, we have begun what I believe will prove to be the most significant era for change in legal education in our lifetime. We will learn more and more about brain science and its implications for legal education, and technology will allow us to leverage what we know to enhance our students’ learning and to provide more and better opportunities for practice and feedback so we can help our students hone their skills.

We will enhance students’ readiness to practice law by deepening the integration of the bench and bar in our programs. We will rise to meet the challenge of diversifying our profession at all levels, leveraging pipeline programs, innovative scholarships, and other efforts of many law schools, state bars, and the ABA and other national legal organizations. In short, the present for legal education is exciting, and the future is a bright one.

Michael H. Schwartz is dean and professor of law at the University of the Pacific, McGeorge School of Law in Sacramento, California. He is a frequent speaker on teaching and learning in law school and is the author of seven books. Schwartz is an honorary member of the Anthony M. Kennedy American Inn of Court in Sacramento and the Judge William R. Overton American Inn of Court in Little Rock, Arkansas.

© 2023 Michael H. Schwartz. This article was originally published in the March/April 2023 issue of The Bencher, a bi-monthly publication of the American Inns of Court. This article, in full or in part, may not be copied, reprinted, distributed, or stored electronically in any form without the written consent of the American Inns of Court.