Legal Education's Difficulty with “Desirable Difficulties” and its Impact on Student Success and Bar Passage Rates

Abstract

Legal education has difficulty with desirable difficulties. Despite priding ourselves on providing an infamously rigorous experience, many structures in legal education create incentives for students to avoid methods that would optimize learning and disincentives from using methods that seem more cognitively taxing. For instance, our obsession with summative assessment leads students to believe that testing is meant only to assess the student's ability, knowledge, and aptitude. Students thus postpone, and ultimately reject altogether, using testing as a learning event because they cannot fathom the idea of self-testing unless they are fully prepared for the real exam. In this paper, I explore these and other phenomena that lead law students to avoid the benefits of describable difficulties. I also describe the Academic Excellence Program at Florida International University College of Law, which seeks to unteach these phenomena, and I then discuss what obstacles still exist and how to start addressing them.