Academic journal article Brigham Young University Law Review

Teaching "Thinking like a Lawyer": Metacognition and Law Students

Academic journal article Brigham Young University Law Review

Teaching "Thinking like a Lawyer": Metacognition and Law Students

Article excerpt

INTRODUCTION

Even in a discipline where ambiguity is cherished, law professors are stumped when it comes to understanding the content of legal education's motto: "Teach them to think like a lawyer." For decades, scholars have groaned under the weight of trying to describe what "thinking like a lawyer" means.1 A recently popular educational psychology construct may hold the answer: metacognition, or the process of thinking about one's thinking. Education theorists have been much more successful in defining, explaining, and testing for metacognition, than law professors have been in explaining "thinking like a lawyer."

This Article explains metacognitive skills in the context of law, reviews the limited legal scholarship that references metacognitive skills, and presents the first empirical study of the metacognitive skills of newly admitted, highly qualified law students. The data demonstrates that top law students-hardworking, overachieving college graduates with high IQs-do not have well-developed metacognitive skills. This Article then explores why metacognitive skills are so helpful in performing the tasks required in the practice of law and suggests that life-long, expert thinkers rely on developed metacognitive skills. Unfortunately for many law students who do not understand the purposes behind law professors' pedagogical techniques, Socratic Method sometimes leaves students believing that thinking like a lawyer means avoiding straight answers and promoting ambiguity. In light of this struggle, how can legal educators convey what it means to "think like a lawyer"? Superb metacognitive skills go a long way toward this goal.

Studies in education have demonstrated that highly developed metacognitive skills help in converting a student into a life-long learner-one whose education and learning do not stop when he or she leaves school. Metacognitive skills improve oral communication, written communication, and comprehension of texts. In addition, metacognitive skills increase the speed and accuracy of factual analysis and, because of the increased confidence in performing these tasks, those with better metacognitive skills suffer from less anxiety about performing challenging intellectual tasks.

Legal education is in the throes of a painful revolution where it has been charged to abandon the accepted methods of a century-whether Socratic Method or merely the Langdellian Method-and remake itself.2 Moreover, this metamorphosis is to take place in an economy where law school budgets are increasingly stingy and alumni without jobs are not in a position to become donors. The MacCrate Report, the Carnegie Report, and a plethora of other scholarship have pushed legal education from a largely cognitive endeavor to a balance with skills training.3 We argue that the one fundamental skill being overlooked in this transmutation is metacognition. If metacognition is highly relevant to legal thinking and the demands of the profession, as we assert in Part III, and if it can be taught, as we assert in Part IV, then the critical question is whether law students are likely to have already learned these lessons before graduate study or whether they need to learn them in law school.

Our study, reported in Part II, illustrates that, when they are promoting "skills training," law schools should adopt teaching methods that directly teach metacognitive skills. Of special interest in the dialogue about legal education reform is the fact that metacognitive skills are taught in the use of pure Socratic Method, although more awareness of the concept of metacognition would vastly assist in the process. Though Socrates didn't use the term, encouraging metacognitive thought was an important component of his teaching approach centuries ago.4 This Article is not the place to undertake a thorough defense of the highly contested issue of Socratic Method or other approaches to teaching metacognition; however, metacognition undoubtedly will become a major component in any successful law school reform and, with it, a reassessment of Socratic Method. …

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