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Merlino, M et al. --- "Science in the law school curriculum: a snapshot of the legal education landscape" [2009] LegEdDig 5; (2009) 17(1) Legal Education Digest 14

Science in the law school curriculum: a snapshot of the legal education landscape

M Merlino, J Richardson, J Chamberlain & V Springer

58 J Legal Educ, June 2008, pp 1–23

Practising attorneys, the judiciary, and political policy-makers, who increasingly encounter expert testimony from diverse fields in litigation and decision-making contexts, face additional challenges as rapid advances in science and technology demand a broader range of skills and knowledge. These developments bring with them new issues that must be addressed at numerous levels, many of which will find their way in to the courtroom or the halls of legislatures.

As Howell Jackson of Harvard Law School stated, ‘Lawyers — whether corporate counsel or public interest advocates — must work in a world in which arguments are framed in quantitative terms and the evaluation and presentation of data are critical to effective advocacy’. In the current climate of fast-paced scientific and technological discovery, attorney and judicial competence in the area of expert testimony has become even more multi-faceted, encompassing a broader range of knowledge and skills than ever before.

How have law schools adapted in this area to the changing needs of their students? Why have some expanded their course offerings or materials to include courses on science, while others have chosen to offer more traditional curricula? What factors are related to whether or not law schools disseminate innovations in litigation practice to their students?

Interdisciplinary collaboration among legal scholars and researchers from other disciplines is increasing as law school faculty are under increasing pressure to publish in scholarly journals. Other scholars argue that empirical research methodology should be adapted to the requirements of legal scholarship, and that the infrastructure of teaching and research at law schools should be reorganised to support such empirical research. Potential employers of law students may value a variety of technical skills such as econometrics, statistics, engineering, and fields of basic science that are outside the traditional law curriculum. Attorneys are even being encouraged to develop increased sensitivity toward the cultural backgrounds and psychological well-being of their clients.

Although many legal educators and practitioners recognise the general importance of broadening the scope of legal education to include training that will allow them to work collaboratively with members of diverse professions, little empirical work addresses differences in the availability, structure, and content of such courses. The research to date suggests that many law schools may have fallen behind the curve when it comes to preparing students to litigate cases in which expert testimony will be proffered. To our knowledge, the 1992 Carnegie Task Force Survey and the 2000 Science Education Survey are the only two empirical studies of the availability of science education in law schools that have been performed to date.

The Carnegie Task Force Survey on science education opportunities in law schools suggested that by 1992 several law schools had already begun to incorporate interdisciplinary courses in their curricula. The Science Education Survey revealed that by 2000 more law schools had added courses specifically designed to give their students a basic understanding of the philosophies and methods of science. However, Merlino et al also found that the number of students enrolling in the courses identified were relatively small. It was not possible on the basis of the Science Education Survey responses to determine whether the class enrolment was a function of student interest (eg. the courses may have been elective) or enrolment limits imposed by the course instructors. Also, only about 50 of the 172 US law schools that were sent a questionnaire returned the survey. It was not clear why this was the case. Perhaps schools with more offerings in the area of science education for attorneys were more likely to return the instrument. Or perhaps the requests for information from the law professors were not received or were not forwarded from the Dean’s office in a timely manner. While the findings from these studies suggest that interdisciplinary education is on the rise at US law schools, the modest response rate for the Science Education Survey preludes making any definitive statements about the efforts of law schools to meet the changing demands of the litigation environment. One might speculate about the reasons for the disparity in the availability of science education for law students, but the fact remains that prior to the present study no clear picture existed of the education landscape with respect to interdisciplinary education about science in law schools.

A sociological process model for the production and diffusion of innovations in litigating cases involving purportedly scientific evidence was articulated by Richardson and Ginsburg, and elaborated upon by Gatowski, Dobbin, Richardson and Ginsburg. These researchers proposed several mechanisms that may either facilitate or constrain the production and diffusion of scientific evidence. Among these mechanisms are the characteristics of the overall practice environment and the level of structural equivalence among legal systems. Each of these mechanisms plays an important role in shaping the course of law school education.

According to Gatowski et al, structural equivalence refers to the degree to which different legal systems are similarly situated sociologically and historically. The more similarly situated two legal systems are, the greater the likelihood that diffusion will occur when similar issues arise within the two systems. If law schools can be conceptualised as legal sub-systems, institutional characteristics can be compared to create a view of the influence of such characteristics on the diffusion of practice innovations within the law school curriculum.

The overall practice environment includes such characteristics of the legal system as precedent, statutes, administrative constraints (eg. rules of evidence, admissibility standards, appellate/review procedures), state and national law-making organisations (eg. legislatures), and the existence of law reform commissions. Changes in laws, precedents, and even the characteristics of individual cases or case congregations change the overall practice environment. The practice environment within which law schools are embedded varies according to state. State evidence laws governing the admissibility of expert testimony may differ. Consequently, the science content in law school evidence courses might be expected to reflect the admissibility standards of the state in which the school operates.

Our study addresses several important questions. How do schools that have incorporated science education in their curricula differ structurally from schools that do not offer courses with scientific content? What other institutional factors might contribute to the offerings of science education for law students?

We also addressed differences in the science-related course offerings by examining the characteristics of the practice environment in which the schools were situated. Specifically, we wanted to know whether the science content of evidence courses reflect the admissibility standards in a specific practice environment. Our findings are based on data obtained from a combination of sources. We conducted a secondary analysis of existing statistics from several sources. Institutional statistics (eg. number of students per section, institutional affiliation, degrees offered, number of faculty, institutional resources, location) were abstracted from the resources published the Law School Admissions Council (LSAC) and the American Bar Association (ABA) websites. Information about relevant courses was obtained from each school’s site or by contacting the school directly by telephone.

We also conducted a content analysis of course materials submitted by professors who participated in our ‘Science in the Law School Curriculum’ survey. The objective of the content analysis was to assess empirically several characteristics of the course materials used in the general evidence, scientific evidence, and relevant interdisciplinary courses. These characteristics included: (1) the variety of science-related topics; (2) the focus of the course materials (eg. legal or scientific); (3) the proportion of the course materials related to the explanation of scientific concepts; and (4) the extent to which scientific concepts are discussed.

A significantly greater number of courses with science content were offered by doctoral extensive institutions than by masters/bachelor programs.

Free-standing law schools, the overwhelming majority of which are private (25 of 29), offered the second-highest number of science-related courses. Tuition level was positively correlated with the number of full-time faculty at the institution, the number of general evidence courses, and the number of courses with science content.

Free-standing law schools on average had a significantly greater number of full-time students than any of the college or university affiliated schools. However, the student GPA and LSAT scores were highest for the doctoral extensive level schools. Thus, it may be that there is greater demand among higher-achieving students for specialised courses such as those with science content.

The availability of courses with science content was negatively correlated with the number of credits required to earn the JD, but there was no significant difference in the number of credits required to earn the JD among the Carnegie classifications of the school. This negative correlation might be explained by the number of faculty available to teach courses with science content. Free-standing institutions and doctoral extensive institutions offered more courses with science content than masters/bachelor institutions or doctoral institutions. This explanation is also supported by the finding that there is a negative relationship between the availability of courses with science content and the student/faculty ratio. A smaller number of full time faculty means that course sizes may be larger, or that faculty cannot be spared from teaching more traditional law courses.

The increased use of expert testimony in the courts indicates that many attorneys have recognised the strategic necessity of using expert testimony in litigation. Yet, attorneys may have little educational background in the sciences, and many lack important insights about the methods and philosophies of science that would help them. The information presented above provides some possible explanations for variations in the availability of science education for attorneys. Future research in this area might involve a longitudinal study of the development of interdisciplinary or multidisciplinary programs. This additional research might incorporate surveys of law school administrators or content analysis of needs assessment for interdisciplinary or multidisciplinary offerings.

Other avenues of research should address the short-term impact of such offerings on the careers of recent law school graduates, as well as differences in the practices of attorneys who have and have not had access to such education. Understanding the reciprocal impact of interdisciplinary and multidisciplinary education on law schools, future attorneys, and the practice environment will improve the ability of law schools to meet future needs. Such information may be helpful to law school administrators who are interested in developing such programs and professors who are interested in incorporating science content into their courses.

Understanding some of the characteristics of law schools and the institutions they are affiliated with is an important part of exploring the availability of science education for law students. However, institutional characteristics are only one factor among many that must be considered. Others include credible dissemination sources for practice innovations, the attitudes and experiences of law professors, and the political and social support for the use of various types of scientific evidence.

Credible dissemination sources include law review articles, case law, professional conferences, academic journals, and other professional resources. This knowledge base develops through the recognition that the production of a particular scientific claim has value as possible evidence, followed by social construction of the claim as evidence or counter-evidence by ‘evidence entrepreneurs’ (eg. the party who perceives the value of the evidence and promotes its use). Available, accessible, and credible dissemination sources constitute ‘state of the art’ knowledge for practitioners and for future attorneys who are being socialised into legal culture via their experiences in law school. The dissemination sources most commonly used in law schools are casebooks, texts, and law review articles.

Law faculty also bring innovations into the classroom by participating in professional and academic conferences, where discussion about current topics and research are presented. Law school professors, who are ‘gatekeepers’ of the diffusion of practice innovations to the law school curriculum, can be conceptualised as evidence entrepreneurs whose courses reflect the activities and affiliations of the professors.

The attitudes and experiences of law school professors should play a role in the diffusion of practice innovation because professors teach future attorneys (and judges) about law and its operation in the courtroom. Law professors who have little experience in the area of science may be hesitant to include much scientific content in their evidence courses. Some law professors may feel that the methods and philosophies of science are beyond the scope of their teaching responsibilities. It may also be true that negative attitudes about science, scientists, or scientific evidence inhibit some professors from including such content in their courses. Other professors may believe that assessing scientific evidence is very important, leading them to promote such knowledge in their courses.

High-profile cases, emotionally charged issues, or catastrophic events often attract intense media coverage. Such intense publicity tends to highlight sensitive social issues that in turn may attract the attention of certain advocacy groups. Once advocacy groups are attracted to these issues, they bring resources to bear (eg. lobbyists, relevant expertise, financial assistance) that facilitate the production of evident claims.

Social issues can also be expected to influence the content of law school courses. For example, some states have courts of special jurisdiction to deal with cases involving natural resources. Law schools situated near significant natural resources may offer scientific content related to the management of those resources (eg. a school in an area in which heavy logging occurs might have interactions with the Environmental Protection Agency, wildlife conservation groups, and a division of the science department dedicated to the study of environmental issues). Thus, the work of evidence entrepreneurs is influenced by the interaction between the practice environment and the larger culture in which the practice environment is situated.

Another source of influence on the activities of evidence entrepreneurs is that of the American Bar Association and state bar associations. For example, many law professors are members of the ABA and are licensed to practice law in at least one state. Forty states require members of the Bar to attend mandatory continuing legal education. These courses are sponsored by a variety of organisations (eg. women’s, children’s, and minority advocacy groups, experts in various fields, banks, insurance providers), and their availability may reflect the attitudes and opinions of the course instructors or the state bar association’s CLE regulatory committee about the needs of attorneys in the current practice environment.

While research described here provides a useful snapshot of one aspect of the legal education landscape, it is clear that a full understanding requires consideration of the relationships among the mechanisms described above. Law schools and law faculty influence the production of science in the courtroom, and in turn are influenced by the practice innovations that develop at this rapidly evolving intersection of law and science. The progressive multidisciplinary content that some law school curricula reflects the changing demands of the litigation environment. Increased multidisciplinary education in turn impacts the course of litigation by preparing future attorneys and judges to deal with increasingly complex scientific and technical information. Recognising and facilitating these complex interactions helps shape law students into effective advocates who are better able to serve their clients, and judges who are knowledgeable and capable decision makers in areas of complex litigation involving scientific evidence and expert testimony.

Respondents from a national survey of law school professors (n=225) were asked to submit a copy of their course syllabi and the references for textbooks, casebooks, law review articles, academic journal articles, and other sources of reading by fax, mail or e-mail to the research site. Sixty-nine professors submitted their materials. A database of reading materials was compiled and a reference list organising the readings by subject area and type (eg. textbook, casebook, law review article, journal article) was created. Textbooks and casebooks for scientific evidence courses were identified and acquired for coding purposes. The references for articles were examined and articles that were used by a significant number of professors were acquired and coded.

Systematic quantitative and qualitative content analysis procedures were used. These procedures were various versions of content analysis that followed established techniques that we have used in previous studies in other legal contexts. The unit of analysis was the course syllabus and the unit of observation was the reading assignment within the syllabus. The codebook consisted of mutually exclusive and exhaustive coding categories, which were empirically constructed using the materials identified.

This categorical variable included six broad categories of science: health care / medicine, engineering / technology, physical sciences, social / behavioural science, business / law / public administration, and trades / forensic.

The institutions that accepted students with the highest LSAT scores (100 per cent quartile) offered significantly more science/law and science courses (M = .45) than 75 per cent quartile institutions (M = .30; p = .02), 50 per cent quartile institutions (M = .27; p = < .01) and 25 per cent quartile institutions (M = .15; p = < .01).

A significant number negative correlation was found between the total number of science/law and science courses and the student/faculty ratio (r 2 = -208, p = .005, n = 184), indicating that as the student/faculty ratio increased, the number of courses with science courses decreased.

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