Performance Isn’t Everything: The Importance of Conceptual Competence in Outcome Assessment of Experiential Learning

Abstract

The ABA is on the brink of a seismic shift in its law school accreditation standards. The new standards would require law schools to identify, pursue and assess goals for student learning outcomes. This change in focus has been heavily influenced by the Carnegie Report’s recommendations for reform of American legal education. This report has been hailed in numerous law review articles but has been subject to little critical analysis.

This article scrutinizes — and ultimately rejects — the recommendations of the Carnegie Report for outcomes and assessment in the area of experiential education. The Carnegie Report argues that practical education should focus on teaching students to follow expert protocols, procedures, rules and checklists to deal effectively with lawyering situations — to mimic the actions of expert lawyers as they face a lawyering task. An extensive body of cognitive science and neuroscience research on the development of expertise, however, questions the theoretical underpinnings of the Report and suggests that educators should not focus on what experts are doing but what they are thinking as they deal with a lawyering problem. Therefore, the authors assert that outcome assessments in experiential legal education should be focused primarily on students learning to reason in practice, rather than to mimic the techniques of expert lawyers. Ultimately, this critique has significant implications for the drafting of the final ABA standards on outcome assessments which are likely to be adopted in late 2012 or early 2013 .

This article concludes by presenting an experimental assessment technique designed to evaluate student reasoning in practice.

JEL Classification: K10, K49