Best Practices for Legal Education

When the Carnegie Foundation for the Advancement of Teaching had the good sense to publish its report, Educating Lawyers: Preparation for the Profession of Law (William Sullivan, Anne Colby, Judith Wegner, Lloyd Bond, Lee Shulman, 2007) on the heels of Best Practices for Legal Education (Roy Stuckey and Others, 2007), I was among those rejoicing. The two volumes speak volumes about legal education, and the academy was taking notice. Two great leaps forward for legal education! Now I find myself in a hubbub of workshopping and consulting with hundreds of others engaged in renovations, innovations, and reforms. Can the tipping point be far behind? Isn’t this a dream come true?

But as the initial euphoria wears off, I discover a few anxieties interfering with the dream.

Monsters in the Closet.
All changes and new beginnings carry risks, and the risks I see in the future of legal education take on the forms of familiar monsters. I’ve dubbed them Discoverers, Crusaders, and Regressives.

Discoverers. This doesn’t sound in monsterness, but here’s how I think of it: In lots of gatherings where curricular change is discussed, I hear things that suggest that experiential education is something that has just appeared out of the mists. At one gathering, for example, Harvard’s first-year Problem Solving Workshop – a three-week course in which classes of 80 students work through seven fact patterns – was presented as a “radical” innovation, a “revolution” in law school pedagogy. (See HLS website at law.Harvard.edu/news/spotlight/classroom/problem_solving.html) When I first heard about this “radical innovation,” I thought it was a good joke. But nobody was laughing. This is when the monster first appeared. I heard echoes of western Europeans boasting that they had “discovered” the American continents. And I know from my studies of history that if they claim it, they will try to tame it to their own purposes. That fear is worthy of a monster’s appearance.

Crusaders. No doubt I’m getting too political here, I’m dabbling in hyperbole. But there is a certain kind of enthusiast that scares me. Someone lights upon field placements as a valuable teaching method, which it surely is, but then quickly decides that it is THE valuable teaching method, and oh, by the way, it just happens to be a cheap substitute for in-house clinics. Or a mandatory first-year or third-year course with an experiential component is somebody’s idea of a one-size-fits-all educational unit that will satisfy ABA Standards (assuming the Standards continue to exist), and other initiatives or existing programs are abandoned. Or in a rush to give every student a meaningful experience, community needs and interests are brushed aside with the introduction of a massive service learning requirement that burdens the community and gives back little or nothing. Call me paranoid, but I can see that Crusader monster coming at me.

Regressives. Here’s something else in the talk I hear. I hear the benefits of Carnegie and Best Practices and Clinic in general referred to solely in terms of practical experience and skills. It’s not that I denigrate those things, but several generations of clinical, legal writing, and experiential teachers have advanced pedagogy and theory far beyond skills education and practical experience. The reach of experiential education goes much further. It involves the integration of knowledge with action and responsibility, an integration that comes about as a result of highly sophisticated teaching. (I hope others will offer more articulate explanations of this dynamic.) Practice skills is a beginning, certainly a focus that merits ongoing attention and development, and perhaps even the center of experiential education; but I hope we aren’t entering an era that ignores the many concentric circles of knowledge and experience that surround that center and have been developing for a very long time now. We aren’t really going to start entirely from scratch, are we? That fear is what has me waking from nightmares screaming “It’s not new!” and “It’s not simple!” and “Hey, there are experts in the house!”

In my calmer moments, there is still the dream that the hour of change has come, and that the change will bring something closer to the collective vision of legal education cultivated by these several generations of experiential faculty than the Monsters in the Closet portend. When I am rational enough to listen, my advice to myself is to throw in the DICE. DICE here is an acronym (a pedagogical trick). The initials stand for these buzzwords: Diversity; Intentionality; Competencies; and Engagement.

D.I.C.E.
D: Diversity. We could say that clinic (or, more broadly, experiential education) is a genre, with many subgenres that include: in-house clinic; field placement; policy clinic; hybrid clinic; legal methods, legal writing, simulation. This list is not definitive, and probably can’t be, since, as the genre experts tell us (yes, there are genre experts), genre is a fluid concept, historically and culturally situated. Still, it may be useful to identify elements of these courses and programs in order to organize and classify them into malleable categories with at least temporary boundaries. I offer a few thoughts about how to break down the variables that help define experiences at different schools. This is not meant to be prescriptive, just simple observations about what elements are present and more or less dominant in different programs.

Basically, I believe we are looking to provide a full menu for our students. The exact make-up of the menu is dependent on, among other things, the interests of faculty, faculty and student competencies, and student interests. Among the overall goals of experiential programs are experience-based learning; applied learning or contextualization; use of independent judgment; complex problem solving; and the integration of skills, values, and knowledge domains. With that in mind, some factors in course or program development might include:

Pedagogical Focus:
Doctrine
Skills
Professionalism (Lawyer’s Role and Professional Responsibility)
Policy/ Legal Process/ Systemic Analysis

Methodologies:
Role Play / Simulation
Research and Writing
Vicarious Lawyering
Mentoring Relationships
Small Group Work
Guided Reflection
Guided Discussion
Actual Practice

Complexity Factors:
How much teaching is done “in the moment”
Dealing with real consequences
Dealing with real relationships
Degree of Collaboration
Interdisciplinary coordination
Multiple fields of practice
Multiple problem-solving strategies and fora
Community or public engagement
Number and diversity of clients and issues
Ongoing nature of problems or issues

Additional Factors:
Level of predictability/ control over outcomes & consequences/ risk factors
Extent to which course direction is correctible
Extent to which faculty exercise selectivity in various factors
Contact with and decision-making responsibility with respect to clients
Level of faculty supervision, as well as of supervision in general
Extent to which social justice is a focus

Should faculties pick and choose among these elements, identify and rank the values inherent in them, and determine the likely outcomes or consequences of different configurations, they may begin to hone in on the types of experiential offerings that will work best at their respective institutions.

I: All this leads to the second buzzword: Intentionality. We may aspire to curricular wholeness, but intentionality recognizes the fact that we can’t do it all; we have to make choices. Choices ought to be thoughtful, and not based solely on the economies of the moment. If we want to keep the Crusaders at bay, we have to beware of the risk of presumed interchangeability: these subgenres are not virtually identical, to be reduced to some essentialist idea of practice experience. Four hours of trial advocacy isn’t the equivalent o f four hours of a housing clinic; externing in a prosecutor’s office doesn’t expose students to the same learning that preparing testimony for a legislative hearing on a criminal justice initiative does. ne isn’t necessarily better than another, but choosing one model over the other entails loss. In clinical methodological terms, we have to articulate goals, think consequences, clarify values, then make hard choices. Wholeness, moreover, isn’t necessarily linear. A lot of planning has to go into sequencing and coordination.

C: When making choices, one of the factors has to be Competencies. I am not speaking of the competencies we want our students to leave with; I am speaking of the competencies that faculty bring to teaching in the experiential forum. I’d venture to guess that in most schools, there are a lot of people who know a little about experiential pedagogy, but that few schools have large numbers of expert, experienced experiential teachers. This presents a good many challenges. There are those who know something, but don’t know they know it; those who think they know a lot but are mistaken; those who have no interest in knowing; those who would be interested if only they had the time or a safe way to learn; those who know a lot but whose knowledge isn’t noticed because of status hierarchies or time or geography; those who know everything about law teaching and can say without a doubt that experiential competency is not in the mix of “everything” there is to know. How to approach this? The evaluation experts have given us some tools. For example, we can chart rubrics for our own competencies the way we are being taught to chart students’ progress.

I can offer a sample of competency rubrics in Experiential Pedogogy (EP) (it’s based on an instrument developed for a Community-Engaged Scholars Project at the University of Minnesota; most of the credit goes to my colleagues in this project, Bill Doherty, Gail Dubrow, Cathy Jordan, and Tai Mendenhall ).

I’m not sure it can be reproduced here in a readable form, but I can say that it places experiential pedagogy (EP) competencies in three categories: Knowledge/Theory; Practice/Skills; and Integration of Theory and Practice. Each category is then broken down into competencies at five different levels: 1, Basic Familiarity; 2, Working Application; 3, Critical Analysis; 4, Communication; and 5 Demonstrated Influence. I am happy to share the chart with anyone who is interested. Development of and discussion around a competency chart like this could yield significant results. Ok, good luck with that.

E: Finally, we might be able to control the monsters in the closet by acts of Engagement. We need to talk, openly, honestly, often. The most successful innovations follow patterns of communication, leadership, conflict resolution. To give credit where credit is due, the Harvard 1L workshops do engage tenured, non-clinical faculty; if they have been having conversations across the teaching hierarchy, hats off to them. There are many schools taking those first steps, many of which involve boundary crossings. We all benefit if these beginnings lead to bigger structural shifts. It’s never easy and it takes time, but that’s what it will certainly take to keep the monsters away. Best Practices and the Carnegie report were great leaps forward. But it’s worth remembering that winning a battle isn’t winning a war. And winning a war is just the beginning of many battles to come.

Filed under: Best Practices & Curriculum, Catalysts For Change | Tagged: Best Practices and Curriculum; Catalysts for Change |