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.” 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.

Dean Gerken eschews a mechanistic approach to both classroom and clinical teaching.  She points out that as doctrinal and clinical faculty, our collective, and symbiotic, goal should be to train our students to read closely, think deeply, skeptically, and critically.  She notes that we should help our students learn to question legal rules and principles in context of messy facts, to challenge existing legal rules, and develop new rules or applications of those rules, or as Dean Gerken puts it, to spend as much time thinking about “the ought as the is”.

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.

Gladwell recounts his experience with an LSAT test prep coach who urged him not to read the passages closely because he had no time to do that.  Amazed, Gladwell reflects on how, to get the best score, he must not spend time truly thinking about the issues raised by the problems he must answer.

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.  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.

Gladwell’s podcast meanders into the world of championship chess.  Gladwell analogizes how the chess world decided not to value speed, and how that decision changes who is a top-ranked international chess champion.  He notes that the arbitrary value placed upon speed when it comes to the LSAT and law school exams defines who we consider smart.  He wonders what would happen if the ability to answer questions quickly were not in the mix.  The podcast then returns to Professor Henderson who 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.

As I listened to Gladwell’s podcast, I thought about the bar exam.  In an article Professors Chomsky, Kaufman and I wrote, it took us nearly 500 words to deconstruct the analytical process one must go through to answer one tort multiple choice bar exam question.  That analytical process begins after examinees read a question.  Bar examinees have approximately 1.8 minutes to read and answer each of the exam’s 200 multiple choice questions.

While perhaps quickly identifying the correct response is a necessary skill for some litigators, speedy answers to legal problems are not the cornerstone of most good lawyering.  Yet, starting with the LSAT, continuing in law school, and ending with the bar exam, as Gladwell observes, we reward the hare instead of the tortoise.  He asks “why”?

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.

4 Responses

  1. Andi, while reading this post and starting to read Gerken’s piece , I was nodding emphatically, smiling broadly and nearly exclaimed AMEN!! Thank you for posting.

  2. With all due respect, the blind spots and naïveté on display in this piece are breathtaking.

    The LSAT and, in particular, its “Logic Games” section, do not exist to test prospective students’ aptitude for law school. It exists as an entry barrier and a sorting mechanism for law school admissions offices, and especially for admissions offices of elite schools. Harvard or Yale has neither the time nor the interest to assess detailed answers to nuanced problems from their thousands of applicants. Instead, they want a quick sorting mechanism that will quickly separate the sheep from the goats, *after* which the admissions committee may apply other formulae related to “diversity” and the like. The LSAT has always effectively performed this function.

    So, by all means let us criticize the LSAT. But let us first be honest about its true function in the law school admissions process.

    • Hi Rob T.,
      Don’t know if you come to this question as a concerned citizen, lawyer, law student, professor, or testing expert? I do know that, the LSAT is a gatekeeper – not just for law schools – but for the profession. For a better functioning legal system, access to justice process, and democracy, we should have gate keeping mechanisms which comport with what we need lawyers to be, think, apply and do! Does relying primarily on logic tests do that? I am not convinced. Sorting with tunnel vision – see who we can predict can “make it through” – is easier and convenient as you have observed. However, failing to acknowledge the LSAT’s gatekeeping connection to an ethical, diverse, and thriving profession seems very unwise.

  3. Dean Gerkin’s comments reminds me of something I said in a book I am working on: “I did not hear the word reflect once when I was in law school, and I doubt it is much better today.”  Gerkin is right that students need time to sit back and think about the law.  It will make them much better lawyers and deeper thinkers.

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