The Best Practices for Legal Education Blog would like to extend a special thank you to the Clinical Legal Education Association (CLEA) for their dedication to this project.
Many of us were inspired to hear AALS President Darby Dickerson, Dean, UIC John Marshall Law School speak about “caste”, “candor”, and “change” during her address at the January 2020 Annual Meeting.
In this new article, first posted in the AALS Newsletter, she follows up with some worrisome data from the 2019-2020 CSALE study, works through potential harms to schools and students, and issues a call to action to address issues of pay equity, security, and status.
We value the conversations and discussions that often happen live and informally at in-person conferences as we share our progress (or lack thereof). So, dear readers, please let us know in the comments about any promising practices or initiatives at your schools. How are leaders addressing pay equity, security, and status in an era of hiring freezes and financial insecurity? What changes are you working toward?
Deborah Jones Merritt, Distinguished University Professor and John Deaver Drinko/Baker & Hostetler Chair in Law, The Ohio State University.
A few weeks ago, Logan Cornett and I published a major study of the work that new lawyers do—as well as the knowledge and skills they need for that work. John Lande has already offered two thoughtfulposts about the study (thanks, John!). We think the research offers important information for legal educators, bar examiners, and workplace supervisors: we need to align education, licensing, and supervision to improve the service that new lawyers provide clients.
Will it be possible to achieve that alignment? In particular, can we make the bar exam a more valid assessment of the knowledge and skills that new attorneys need? I hope so. Neither states nor the National Conference of Bar Examiners (NCBE) have ever validated the current exams; that means we have no evidence that the skills and knowledge assessed on the exams match the ones that new lawyers use in practice. NCBE’s current attempt to validate the exam—through survey evidence—does not capture sufficient detail about the ways that new lawyers use their knowledge and skills in the workplace. Our study, based on 50 focus groups held in locations across the country, provides those more detailed insights. Combining our findings with those from NCBE’s study and other research could yield a valid licensing process.
An invalid exam would be embarrassing enough for a profession that prides itself on logic and reason, but our current bar exams have another flaw: they pass white candidates significantly more often than candidates of color. An exam that has never been validated, yet discriminates against candidates of color, is unthinkable in the modern age—and yet, we have tolerated these exams for decades.
It’s time to change, but will we have the courage to do so? Our profession has a deep attachment to closed-book exams, multiple choice questions, and time-pressured tests. The research that Logan Cornett and I did convincingly shows that none of these assessment methods are appropriate for the legal profession. Entry-level lawyers work from sources, not memory; they gather information to solve open-ended problems rather than choosing one canned answer from four; and, although they often practice under time pressure, the time constraints on the bar exam are dangerously unrealistic.
We need to challenge all three of these obstacles to a valid licensing process. Our report suggests many ways to accomplish that end. Here’s just one modest proposal that would significantly improve the validity of the bar exam:
Maintain the Multistate Professional Responsibility Exam (MPRE), which tests knowledge of basic principles of professional conduct, but make the exam open book. No one can wind their way through the dense rules of professional conduct and commentary without previous study, so an open-book exam won’t make the test “too easy.” On the contrary, an open-book exam would encourage new lawyers to check the rules and commentary whenever they face a conduct issue. That’s a habit we want to encourage, not discourage.
Maintain two performance tests like the ones currently prepared by NCBE, but allow 3 hours (rather than 90 minutes) for each test. Expanding the time frame would make these tests more realistic measures of minimum competence. It might also make grading more reliable because graders would be faced with real-world products produced under realistic time constraints.
Create a 3-hour research exam that consists of multiple-choice or fill-in-the-blank questions. This exam would test the kind of quick research that lawyers do routinely: What is the statute of limitations for medical malpractice in Ohio? Does a will need witnesses to be valid in Texas? Give candidates access to any online tools they desire to do this research.
Create a 3-hour, multiple-choice exam that tests (a) basic understanding of U.S. legal processes and sources of law OR (b) a single substantive subject (such as civil procedure, contracts, business law, or family law). If the latter, consider giving candidates a choice of the area in which they wish to test.
Our research suggests that the final doctrinal component of this exam should be open-book; new lawyers simply don’t work from memory. Instead, they internalize basic principles that allow them to identify issues in a client problem and find the specific rules they need to address that problem. But if bar examiners insist on a closed-book exam component, they could make this portion of the exam closed-book. Memorizing the rules related to a single subject—especially if the subject reflects an area in which the lawyer hopes to practice—more closely parallels the work that new lawyers do than memorizing the rules that govern ten or more fields.
A bar exam with the four components listed above could be administered according to our current schedule. I.e., candidates could take the MPRE on one occasion and the other three components over two days in late July or February. Alternatively, the proposed exam could be divided into five different components (the MPRE, each of two performance tests, the research test, and the doctrinal test) and states could allow candidates to take the components at different times and in any order. Breaking the exam into components would relieve some stress and give candidates more flexibility. It might also allow candidates to determine, while still in law school, that they lack skills needed for law practice—and either choose a different career or remedy those deficiencies through more coursework.
Our report offers other options for licensing, including a rigorously structured diploma privilege. We also recommend that states complement any written exam by requiring candidates to complete law school clinics and courses in client counseling and negotiation. Those experiences assure instruction, practice, and feedback on skills that are difficult to test through a written exam.
It’s time to get serious about aligning legal education and licensing with the work that new lawyers do. Only then will we fulfill our mission of protecting the public.
By: Dena Bauman, UC Davis; Gillian Dutton, Seattle University; Kendall Kerew, Georgia State; Chipo C. Nyambuya, Loyola Chicago; and Amy Sankaran, University of Michigan
When we proposed a concurrent session focused on remote externships in November 2019 for the March 2020 Externships 10 Conference, we expected to be exploring a novel field placement arrangement, that of students working from a different location than their supervisors, and/or remote from the physical site. A few months later, at the very time the conference was originally scheduled, we found ourselves in a global pandemic. We were living in the environment we planned to explore.
Overnight, our “novel” work arrangement became reality. Students were working remotely from both the law school and from field placements and supervisors. We planned to “model” a Zoom supervision meeting for panel attendees. Overnight, virtually all law school faculty, law students and field supervisors were relying almost exclusively on Zoom and other video conferencing platforms for classes, work at field placements and site visits.
Survey on Working Remotely and “Best Practices” Template:
Per our November 2019 proposal, we planned to survey the externship community about their current practices and rationales regarding remote placements. We also planned to create and distribute a template to use in evaluating and making decisions about virtual externship sites and advising students. We are linking to the template.
We distributed a revised survey through the national externship list serv in September 2020 that took a “snapshot” of practices before and during COVID. It also asked externship clinicians to consider what they might do post-COVID. [1] We used the 81 responses to create a template for assessing potential virtual placements and distributed the template at our rescheduled panel on October 23, 2020 along with a brief summary of the survey. We used these three definitions.
Traditional remote placement: Student and site supervisor physically present at the site, but remote from the faculty member.
Remote supervisor placement: Student physically at the site but separate from the supervisor.
Virtual remote placement: Student physically separate from both the site and supervisor.
Pre-Pandemic: Few Schools Allowed Virtual Remote Placements but Many Allowed Traditional Remote Placements
Type of Placement Allowed
Percentage
Number
Virtual remote
10.78%
11
Traditional Remote
60.78%
62
Remote supervisor
11.76%
12
None of the above
16.67%
17
Reason for not permitting remote placements
Percentage of Schools
Number of Schools
Students would not have the same immersive experience
30.59%
52
Students would not get the same or complete learning opportunities
36.47%
45
Supervisors would not give adequate feedback
17.06%
29
Reasons for allowing remote placements
Percentage of schools
Number of Schools
Benefit part-time/evening students
19.44%
7
Supervisors work in a different location
16.67%
6
Evolution of law practice
16.67%
6
Student want to work in virtual environments
13.89%
5
During the Pandemic (as of date of survey): No Schools are Barring Remote and/or Virtual Placements
In response to the pandemic, we asked schools whether they were permitting a traditional remote placement and/or a virtual remote placement. 80 schools, out of the 81 respondents, permit virtual remote placements. 69 schools are permitting students to work apart from the faculty but are on site with the supervisor also present.
Another question asked why they were permitting these new arrangements. The three top reasons were:
Reason
Percentage of Schools
Number of Schools
Externship sites are closed or ask students to work remotely
45.65%
63
Students asking to work remotely for caregiving or other reasons
31.16%
43
Law school requirements
10.14%
14
Law school comments included: students need to complete graduation requirements, confidence that students are getting adequate supervision and experience in a new work environment, distance and traffic, and public health and safety concerns.
Nearly ¾ of the law schools said the changes have been both beneficial and problematic. As the pandemic continues through the fall, likely into the spring, and perhaps beyond, we will continue to learn much more about those changes.
Post-Pandemic: Training will be a Priority in Permitting Virtual Placements
Schools predict that training requirements for law students and field supervisors will be an important condition for considering virtual placements after the pandemic has passed.
Requirement
Percentage of Schools
Number of Schools
Externship program will train students in remote work
22.73%
50
Sites must demonstrate training for attorneys and students
12.27%
27
Supervisors must agree on training from externship programs
11.36%
25
Faculty Anticipate a Case-by-Case Approach
Factors that schools would consider in assessing the virtual and remote placement include family, health, financial and geographical circumstances, as well as the availability of the experience. Schools also noted that it is too early to know if and how law practice will change, but that consideration is important in preparing our students for their careers. Additionally, we also realized that we need to scrutinize and analyze this nearly overnight reliance on technology in practice. Our presentation discussed these issues, such as access to technology and roles at home. We will discuss those issues, and how they will affect our preparation of students for their post-graduate careers, in another posting.
Summary: We believe our survey is a good starting point for future assessments, even as the pandemic continues to upend legal education and law practice. Our template, which was favorably received at our panel, will help externship clinicians make decisions for placements and students, gather reasonably consistent information that they can use, and share with the community to build a record of useful information. Post-pandemic, we will depend on each other to share information about what we are contemplating and are implementing regarding virtual placements.
[1] Thanks to Inga Laurent, Gonzaga University School of Law, Theodora Pina, Santa Clara University School of Law, Sue Schechter, UC Berkeley School of Law and June Tai, Iowa College of law for their review and suggestions regarding the survey instrument.
The Society of American Law Teachers has been proud to share its four-part Fall 2020 Social Justice in Action webinar series. This webinar program already has presented leaders in the field to address anti-racism values and practices in three specific contexts, including anti-racism in the core law school curriculum, equity and inclusion in online legal education, and anti-racist work for the long-haul. Approximately 500 people attended these first three webinars, and many more have since viewed them on SALT’s website.
The fourth installment of SALT’s webinar series will take place on October 16, 2020 at 12:00pm PT and 3:00pm ET, and it will address one of the most important influences we as educators have on the future of higher education and the legal profession: our hiring practices. We all know that law school and higher education hiring practices is one of the areas where we most struggle to fulfill our commitment to diversity and antiracist values. To explore how we better can fulfill this commitment, SALT is honored to present three highly respected leaders in legal education to share their perspectives on anti-racist values and practices in the recruitment and retention of faculty, staff, and administrators:
Nova Southeastern University Shepard Broad College of Law
In the midst of nonstop racialized violence and institutional assaults against minoritized communities, it is no wonder that those committed to fighting racism can sometimes feel personally overwhelmed. The Society of American Law Teachers (SALT) turned its attention to this important topic at a recent Webinar. Law school leaders and a resiliency expert offered their insights and advice to law professors engaged in anti-racism work.
The webinar, “Engaging in Anti-Racism Work for the Long Haul: Avoiding Fatigue and Burnout” was the latest in a series of Social Justice Webinars sponsored by SALT this year. The event featured Dean Mario Barnes, Toni Rembe Dean & Professor of Law, University of Washington School of Law; Nikita Gupta, GRIT Program Director, UCLA Bruin Resource Center and Carla Pratt, Dean & Professor of Law, Washburn University School of Law. More than 130 people attended the event. A video of the event is available here. Panelists explained why law school professors are in a critical position to combat racism, and talked about the importance of self-care in confronting injustice for the long haul.
The event was part of SALT’s Social Justice in Action Webinar Series. The next webinar, “Anti-racist Hiring Practices” will be held Friday, Oct. 16, 2020 at 3 p.m. EST. Registration is available at: https://bit.ly/307SZ6M
by Bob Kuehn, Professor of Law & Associate Dean for Clinical Education Washington University School of Law
The Center for the Study of Applied Legal Education (CSALE) is pleased to announce that the report on its “2019-20 Survey of Applied Legal Education” is now available on CSALE’s redesigned website: https://www.csale.org/#results.
The report summarizes the collective survey responses from 95% of law schools and over 1,300 law clinic and field placement instructors. The 2019-20 survey, CSALE’s fifth tri-annual survey, provides the most comprehensive, accurate picture to date of clinical legal education programs, courses, and faculty.
In addition to the report, CSALE provides customized information on aspects of the data, such as how a school’s clinical courses or faculty compare to peer schools or more detailed sorting of survey question results. Requests for a customized report should be sent to administrator@csale.org.
SALT encourages law schools across the country to take affirmative steps to promote justice, eradicate racism and support their law school communities in light of pervasive injustices. SALT is proud to announce a virtual series featuring law school teachers sharing their expertise on how to educate the next generation of lawyers, support students of color and dismantle structural inequality and racism in the United States. We will host monthly panel discussions on ways to combat racism and promote equity in law school. This work will include presentations on the integration of anti-racist frameworks in classes, promoting equity and inclusion in online teaching, anti-racist faculty hiring practices, and racialized trauma and fatigue.
Promoting Equity and Inclusion in Online Teaching August 21, 2020 3:00 – 4:00 pm ET Register here: https://bit.ly/2DbiMli
Featuring
Goldie Pritchard, Director, Academic Success Program, Michigan State Univ. College of Law Tasha Souza, Associate Director of the Center for Teaching and Learning, Boise State University Carwina Weng, Clinical Professor of Law, Indiana University Maurer School of Law Sha-Shana N.L. Crichton, Director, Legal Writing Program, Howard University School of Law
Racialized Trauma and Fatigue Among Academic Activists September 18, 2020 3:00-4:00 pm ET Register here: https://bit.ly/2BDeToN
Featuring
Nikita Gupta, GRIT Coaching Program Director, University of California, Los Angeles Carla Pratt, Dean, Washburn University School of Law Rosario Lozada, Associate Professor of Legal Skills and Values, Florida International University Law
Anti-Racist Hiring Practices October 16, 2020 3:00-4:00 pm ET Register here: https://bit.ly/307SZ6M
Featuring
Tamara Lawson, Dean, St. Thomas University School of Law Angela Onwuachi-Willig, Dean, Boston University School of Law Sean Scott, President and Dean, California Western School of Law
After registering, you will receive a confirmation email containing information about joining the meeting.
In an effort to encourage law schools across the country to take affirmative steps to promote justice, eradicate racism, and support their law school communities in light of pervasive injustices, SALT has organized a virtual series featuring law school teachers sharing their expertise on how to educate the next generation of lawyers, support students of color, and dismantle structural inequality and racism in the United States. SALT is hosting monthly panel discussions on ways to combat racism and promote equity in law school. The first webinar, Incorporating Anti-Racism Frameworks into Core Law School Classes, will be held on July 30, 2020. The webinar will be recorded and made available on the SALT website.
THURSDAY, July 30 at 3:00 pm –Incorporating Anti-Racism Frameworks into Core Law School Classes Register Here:https://bit.ly/2Oewk1K Submit Questions Here: https://bit.ly/2ZOrMFP
Tiffany Atkins, Elon University School of Law, Dorothy Brown, Emory University School of Law, Jane Cross, NOVA Southeastern University College of Law, Hugh Mundy, UIC John Marshall Law School
NOTE: We are collecting questions for the panelists in advance. Please submit your questions here: https://bit.ly/2ZOrMFP
Upcoming Monthly Webinars: Always at 3:00 pm Eastern August 21: Promoting Equity and Inclusion in Online Teaching September 18: Racialized Trauma and Fatigue Among Academic Activists October 16: Anti-Racist Hiring Practices
Please share your reflections on the July webinar here.
The Clinical Legal Education Association (CLEA) welcomed 475 clinic faculty from around the country to its 2020 Virtual Conference, July 21-23. CLEA called on clinic faculty to join together virtually this unprecedented moment. To view the conference program guide, pleaseclick here. To view the poster presentations, pleaseclick here.
CLEA’s call for proposals drew a large response from clinic faculty around the country. The call:
Streets are filled with protesters rising up in response to horrific and ongoing systemic racism manifested by the continued attack on black and brown lives, and the COVID-19 pandemic has changed our daily reality. This has and will impact our professional and personal lives in critical ways. We are called upon as clinical faculty to reflect on and approach our pedagogy and practice differently. We are in new territory trying to determine the best way to run our clinical programs with the need for all or some of our teaching, services, and advocacy to be delivered remotely. We must re-examine the best way to teach about racial injustice and leverage clinical resources to take action to bring about real, lasting change. With these challenges and the inability to connect in-person, it is our goal to build community, draw on our collective wisdom, and provide a forum for discussion.
The virtual conference included plenaries, affinity group discussions, and larger discussion formats. The opening plenary,Facing New Suns: Futuristic Lawyering for Black Liberation (“There is nothing new under the sun, but there are new suns.” – Octavia Butler) brought together Rasheedah Phillips (Featured Speaker) and Norrinda Hyat (Rutgers).
The Black Lives Matter protests that took place in the days and weeks following the public murder of George Floyd signal a remarkable shift in the landscape of modern social movements. A New York Times article, published on July 3, remarked that at the peak of the protests, on just one day June 6, half a million people turned out in nearly 550 places across the United States. And, also, that an estimated 15 million to 26 million total people in the United States have participated in demonstrations over the death of George Floyd and other black people since May making this “the largest movement in the country’s history.”
Some of our students and clients have now spent months in the streets advocating for an end to the status quo, a status quo that is strengthened by the curriculum and structures of most, if not all, law schools. Central to these calls are a rejection of incremental reform. In place of conformism, the protesters are calling on America to imagine, in real time, a world without police, prisons, war, or capitalism. The writings of Angela Y. Davis remind us that the abolition of systems of oppression is both a negative and positivistic project. As for the latter, the protestors call for affirmatively imagining a country with healthcare, housing, education and freedom for Black and Latinx people.
As teachers of and lawyers for many of the individuals and organizations marching, this moment calls for clinicians to “decolonize our imaginations,” as Walidah Imarisha sets out in the introduction to the Afro-futurist collection of short stories Octavia’s Brood. This plenary employs the tool of speculative fiction and the lens of Afro-futurism to motivate in each of us the process of “decolonizing” clinical legal education and clinical practice. Afro-futurism has been described as “an art form, practice and methodology that allows black people to see themselves in the future despite a distressing past and present.” Radical speculative fiction explores the connections between art and movements for social change. Speculative fiction is not new. W.E.B. Du Bois’ short story, The Comet, imagines a post-apocalyptic world in which the sole survivors are a black man and a white woman. In 1972, the MacArthur ‘genius’ Fellow Ishmael Reed wrote the canonical Mumbo Jumbo. The modern godmother of this genre, Octavia Butler, wrote her first of 13 books imagining a better future for black people in the diaspora, Patternmaster, in 1976. Radical speculative fiction’s application in the law is also not contemporary. In 1992, Professor Derek Bell merged radical speculative fiction and the law in his now iconic essay Space Traders. Following in the footsteps of DuBois, Butler and Bell, by looking to the creative, this plenary queries the role of clinical legal education in facilitating the future our clients are imagining and urges us to expand our notions of what is possible to stand in solidarity with our students, the protesters and organizers for black liberation through our teaching, advocacy and scholarship.
The second panel, Black Lives Matter and the Future of Clinical Legal Education, included: presentations by: Desiree Mims (Black Organizing Project), Alexi Freeman (Denver), Nicole Smith Futrell (CUNY), and Renee Hatcher (UIC John Marshall), Donna Lee (CUNY), Oscar Lopez (East Bay Community Law Center)
Finally, the closing panel, Top 5 Tips for Teaching Clinic Online, featured a presentation by Michele Pistone (Villanova)
Thoughts, discussion, and ideas for further engagement from the CLEA virtual conference are welcome!
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