Research demonstrates that new lawyers do not need to know detailed rules of law to practice competently. Instead, they need to know “general principles” or “foundational ideas” in many areas of law. This type of knowledge allows lawyers to identify issues in client problems and then research the relevant subject for detailed rules. One new lawyer in the Building a Better Bar study (p 46) referred to these general principles as an “index” to the “whole encyclopedia” of legal rules.
Some cognitive scientists refer to these principles as “threshold concepts,” and the Building a Better Bar study introduced that phrase to legal professionals. Threshold concepts differ from other types of knowledge because they unlock understanding of a subject. These concepts are often counterintuitive; understanding them distinguishes experts in the field from non-experts. Once learned, these concepts are difficult to forget. That’s because they transform the individual’s understanding of a subject.
An everyday example of a threshold concept is knowledge that the earth rotates daily on its axis. This knowledge is counterintuitive: we don’t see or feel the earth rotate. The knowledge also unlocks understanding of a larger subject. Once we know that the earth rotates daily, we understand why the sun appears to rise and set each day. The sun doesn’t move across the sky; instead, the earth rotates to create that appearance.
Every field of law contains numerous threshold concepts. The Building a Better Bar study uses the example of subject matter jurisdiction as a threshold concept in the field of civil procedure. Non-lawyers might assume that they could file a lawsuit in any courthouse. Lawyers know that each court entertains only particular types of cases; that a combination of constitutions, statutes, rules, and court decisions define those cases; and that we refer to the domain of those cases as the court’s “subject matter jurisdiction.”
A new lawyer who understands this threshold concept does not need to know the particular limits of federal, state, or local courts. As long as the lawyer understands the threshold concept (including the sources that define a court’s subject matter jurisdiction), they will know to check the jurisdictional limits of a court before filing any lawsuit.
The distinction between threshold concepts and detailed rules is critical when defining minimum competence and creating a licensing system. The current bar exam tests knowledge of detailed rules, which requires considerable memorization—a skill that is not essential for minimum competence. One of the challenges for any licensing system is designing a way to test threshold concepts rather than detailed knowledge. Options for focusing on threshold knowledge include the use of written performance tests (which give test takers the sources they need), open-book written exams, coursework requirements, clinical requirements, and portfolio-based assessments.