Beyond Guinier: A Critique of Legal Pedagogy

Introduction

In November, 1994, Lani Guinier and several of her colleagues from the University of Pennsylvania (Penn) stormed the law school world with an article revealing statistical data that suggested that women do not perform as well as men in law school. The study found that while women and men enter Penn Law School with equal credentials, women lose ground during law school. To some, the study confirmed the obvious, to others, the conclusions were dismissable as ungeneralizable, and to still others, the report posed an unexpected threat to the foundations and traditions of the long-established law school classroom. In her article, Guinier criticizes law¬†school pedagogy as hierarchical and hostile to women and urges law schools to take action to improve conditions. Guinier employed a host of methodologies to examine the situation, including a surveying process that used qualitative and quantitative approaches to assess women’s performance in law school The results of her study showed that men are three times more likely than women to be in the top 10 percent of their law school class in their first year, and twice as likely to be in the top 10 percent in their second and third years. Guinier and her colleagues examine law school from many angles, stating that major changes must be implemented to reform a system in which “white men rise to the top, but women scatter downward.” Since incoming first year law classes have leveled off at a one-to-one male/female ratio, Guinier argues that the curriculum must shift to accommodate these equal numbers. Law school is no longer a “gentleman’s” club; thus Guinier argues that for women to be fully integrated and accepted, schools need to make broad-reaching changes.

One of the strengths of Guinier’s article is that she uses diverse methods to critique modem law school practices. Becoming Gentlemen focuses primarily on the critique, however, and stops short of suggesting what specific changes should be implemented. The article offers three general suggestions as to how law schools might address the problem of gender inequality in legal education. Guinier first suggests that the Penn Law School community question the traditional, Socratic-method classroom that is omni-present in first year life. Second, she advocates investigating the use of non-adversarial methods of problem solving in the classroom, which may be more comfortable for students, and may require smaller class sizes for some courses. Third, she proposes that the Law School study the actual ways that students learn most effectively, and suggests faculty/student and older/younger student mentoring programs as well as teaching sessions on coping with the rigors of legal academia.

Guinier’s article provides only a brief treatment of possible recommendations. This piece will consider Guinier’s recommendations and add some additional suggestions. This article will also apply Guinier’s results and recommendations to one particular law school, New York University School of Law (N.Y.U.).

In response to Guinier’s study, students at N.Y.U. have organized several groups to look at pedagogical techniques in their law school, and to examine the way those methods might affect or alienate women. The umbrella organization is called Law Women, a student group to which all women at N.Y.U. automatically belong, that has no particular feminist agenda. In the fall of 1994, when the group realized that there were several feminist goals that many members wished to pursue, the group organized the 2X Task Force. One of the 2X Task Force’s committees is wholly dedicated to the issue of law school pedagogy. This committee, called “Voices in the Classroom,” has been examining N.Y.U.’s classrooms closely, through discussions with faculty members, surveys of the student body, panel discussions, and statistical studies, to determine whether, and to what extent, N.Y.U. has problems similar to the ones Guinier identified at Penn. Through these activities, and informal discussions with students, 2X has found at N.Y.U. much of the same gender-related discontent with the law school experience that Guinier found at Penn.

This paper is a continuation of the Guinier study in the context of another, comparable law school. This article will not question Guinier’s methods or results, rather it will analyze her ideas and add some data, in anattempt to elaborate on her proposals. I believe, as Guinier does, that the law school curriculum needs to be revamped, but not radically overthrown. This piece shares Guinier’s conclusion, that much of traditional law school pedagogy discriminates against women in the classroom. It also shares her argument that law schools need to implement a diverse set of pedagogical techniques to accommodate the various perspectives of a diverse student body. My intention here is not to present statistics or generalized truth-claims about students’ experiences. Rather, based in large part on my experience as a founding member of the 2X Task Force, interviews with a varied group of law school students and faculty, and the Guinier study, this piece explores some of the incremental changes that the Guinier study suggested, but did not examine. Proscriptively, this piece does not seek to eliminate entirely the law school classroom as we know it, it simply argues that law school administrations, faculty, and students should develop alternatives and variety.

In the first section, I introduce several theories of pedagogy and explain how law school classrooms, in many ways, work against several tenets of effective teaching. I discuss the idea of “contextual learning,” especially as it relates to professional education. I also introduce the concept of the “comfortable classroom” and explain ideas behind maintaining a good rapport with students while balancing control of the classroom. I then relate these concepts to ideas of managing the anxiety level among students. Finally, I discuss the theory of feminist pedagogy and argue that it can have a place in the law school classroom.

In Part II, I offer suggestions for revamping the traditional law school curriculum to make it more accessible to women through effective teaching methods. These suggestions are based on examples from the N.Y.U. classroom. I do not argue for an overthrow of the Socratic method. Rather, I claim that professors and administrators need to take active steps to make current methods more effective. I also recommend ways to restructure the traditional teaching style in order to make it less intimidating and create a less hierarchical classroom. I argue for reducing class size in at least one first year section. I advocate increasing the number of teaching assistants and calling for more professor/student interaction. I also encourage professors to use techniques to relieve anxiety and tension in the classroom. In addition to changes in established practices, I call for the implementation of new pedagogical strategies that law professors can adopt to introduce variety and stimulation in their classrooms. For example, I propose using narrative, brainstorming exercises, actual case files, role playing, midterms, and practice exams. Finally, I advocate that law schools continue to encourage student involvement in non-classroom work such as clinics, participation in journals, and extra-curricular activities.

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