Saturday, July 6, 2019

Andrea Curcio (Georgia State), Dean Gerken’s Vision Versus Malcolm Gladwell’s Experience:

When we decide who is smart enough to be a lawyer, we use a stopwatch. Malcolm Gladwell

Law school should be a time to luxuriate in ideas, to test their principles, and to think critically about the law and the profession. Dean Heather Gerken

On the same day I listened to Malcolm Gladwell’s fascinating podcast about the LSAT and test-taking speed, I also read Yale Dean Heather Gerken’s insightful Commentary, Resisting the Theory/Practice Divide: Why the “Theory School” Is Ambitious About Practice [132 Harv. L. Rev. F. 134 (2019).] Both are wonderful. Together, they shine light on a dialectic tension within legal education.

Dean Gerken’s article inspires us to think about legal education in its biggest and broadest sense. She posits that, “At its best, a J.D. is a thinking degree, a problem-solving degree, a leadership degree” and she notes that for students, “law school should be a time to luxuriate in ideas, to test their principles, and to think critically about the law and the profession.” She envisions law school as a place where students engage in deep critical thinking about the law and the profession — both in the classroom and in clinics, and she discusses the interdependent relationship between the deep learning that should occur in both. ...

Contrast Dean Gerken’s understanding of legal education with Gladwell’s podcast about his experience taking the LSAT. In it, he posits: “when we decide who is smart enough to be a lawyer, we use a stopwatch.” He notes that who gets into law school, and what law school they get into, rests largely on LSAT score differences — differences that may depend in part upon one’s ability to answer questions quickly rather than thoughtfully. ...

In the podcast, Gladwell talks to Professor Bill Henderson, the author of a seminal article providing empirical evidence that test-taking speed is an independent variable in both the LSAT and timed law school exams [The LSAT, Law School Exams and Meritocracy: The Surprising and Undertheorized Role of Test-Taking Speed, 82 Tex. L. Rev. 975 (2004)]. Henderson, a former firefighter, talks about the times in his life he felt most time pressured. As Gladwell remarks, Professor Henderson’s most time-pressured performances were not when responding to life-threatening emergencies. Instead, they were when he took the LSAT and law school exams. ... [Henderson] talks about how allowing law students more time to take law school exams can change the outcome of who gets the best grades in a law school class, and hence who thinks of themselves as a smart person, and who gets hired by top law firms, etc. ...

Dean Gerken’s vision speaks to why I became a law professor. Gladwell’s observations speak to the experience of my students. I am not sure how to reconcile the two beyond noting that we must first acknowledge the dialectic. Only then can we decide if we want to judge future lawyers’ potential and abilities based upon Gerken’s vision or Gladwell’s experience.

(Hat Tip: Bob Kuehn.)

Update: Orin Kerr (UC-Berkeley), Malcolm Gladwell Took the LSAT. But What Did We Learn?

https://taxprof.typepad.com/taxprof_blog/2019/07/malcolm-gladwell-yale-dean-heather-gerken-and-the-dialectic-tension-within-legal-education.html