Performance Assessment in Legal Education

Abstract

Law schools in Canada and the United States are in a period of transition. New accreditation standards require law schools to ensure that students have acquired a range of competencies upon completion of their law degree. The articulation of competencies, like Carnegie’s emphasis on the three apprenticeships to which law schools should strive, invites greater scrutiny into curriculum design, teaching methods, and student assessment. Law schools are shifting from traditional case law teaching and 100 % final examinations in doctrinal courses to heightened focus on experiential learning and performance assessment—approaches that have already been adopted in clinical legal education, legal writing, and skills-based courses. In this chapter, we conducted a literature review on performance assessment that included the legal and medical education literature, websites of legal education organizations, and of regulatory and licensing bodies. In Canada, under each provincial body, many bar admission courses have incorporated performance assessments into their programs. However, this has neither been uniform nor have the initiatives been rigorously evaluated. While more law schools are adopting performance assessment methods, disciplined theory-based inquiry proceeds slowly. Legal academics rarely refer to the leading authors on measurement and evaluation or to the extensive literature from other professions, notably medical education. With modest exceptions, these authors do not address established conventions: (a) alignment of instructional objectives to assessment methods, (b) processes for development of assessment instruments, (c) analysis of validity and reliability, and d) reporting of results. As a result, it is difficult to ascertain whether a particular course or program has achieved any or all of the five elements for faculty and student learning: (1) Self-reflection on learning own abilities; (2) Self-assessing performance and using feedback to improve it over time; (3) Learners developing metacognitive performance; (4) Learners developing professional expertise; and (5) Learners developing identity as a self-sustained and unique learner, contributor, and professional. To effect real change in performance assessment that incorporates these elements, we argue that law schools need a robust core of trained specialists and comprehensive faculty development in performance assessment, program assessment, measurement, and evaluation.