Best Practices for Legal Education

As law professors, we tend to teach in ways we were taught in law school, using methods we found effective as students.

For example, my very first law professor, Adrienne Davis, kicked off our first-semester 1L Contracts class with an unconventional assignment:  read the book, or watch the film: “The Remains of the Day.” What could this novel possibly have to do with first-year Contracts?  Professor Davis wouldn’t tell us. “You’ll see” she said.  “you’ll see.”  So I read the book.  Or I tried to. And then I became impatient about three chapters in because there was no contract dispute.  And my 1L brain was very angry.  “What is the point?!” my 1L brain screamed. So I watched the film.  And I still didn’t get it.  The story is about an English butler. It has nothing to do with Contracts.

So we 1Ls in Professor Adrienne Davis’s Contracts class were rather disgruntled.  “What was the point?” We silently asked her with our glares and our eye rolls.  “The point,” she said wisely, “was to give you a chance to contemplate duty.  Attorneys have duties to their profession and their clients.  The Butler in the book was grappling with his duty to his household.”

Professor Davis wanted us to consider what sort of attorneys we would be; what we saw as our professional roles and duties as lawyers. And that is what I invite my students to contemplate as well.  It is an invitation to tap into what I call “Self-Aware Professionalism.”

Socrates stressed the importance of self-awareness.  In 2007, law professor Paula Lustbader channeled Socrates when she wrote: “It is ironic that in institutions where the Socratic Method is the main currency, law schools do not do more to promote reflection.  Socrates himself states, ‘[L]ife without enquiry is not worth living.’ Through reflection and discernment, students develop skills to endure and excel with grace in humility in law school as well as in the profession.”

Reflection and discernment, as Lustbader wisely notes, have a place in legal education.  Her language about “students develop[ing] skills” could deceive the reader into thinking reflective learning is only useful in legal skills courses.  Yet, as my first-year Contracts professor also perceived, reflection and discernment have a place in traditional doctrinal law teaching as well.  Students learning legal doctrine surely benefit from a professor who creates space for critical reflection on the multifaceted causes and effects of that doctrine.  Reflective learning cultivates a robust and sustainable system of legal education.

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Last week Jeffrey Toobin joined the growing chorus decrying the state of legal education in his article in the New Yorker entitled “The Legal One Percent”. One might expect this nationally renowned legal expert, CNN commentator and author of numerous books on legal issues, to write a thoughtful and inspiring piece on the changes facing legal education and the legal market in general. Instead, what Toobin gives us is an intellectually lazy finger-wagging at law schools, boldly asserting that our “system of professional education” is “directly contributing to inequality.”
This inequality, according to Toobin, is related solely to income. He notes that lawyers working “at the top of the pyramid” at white shoe firms like, for example, Cravath, Swaine, and Moore (his example, not mine) are earning “profits per partner in the multimillions.”
Toobin goes on to characterize “recent law school graduates” as those “at the bottom of the pyramid” and cites the Atlantic for the statistic that “­[m]ore than 180 of the 200 US law schools are unable to find jobs for more than 80% of their graduates.”
I have no quibble with Toobin’s data or his freedom to express his opinion about the state of legal education. I do find it ironic that he took the time to write what could have been a thoughtful piece on the subject in such a time of change, and then simply pointed out that law firm partners make more than young lawyers and that new lawyers are finding it hard to land jobs in the softest economy this nation has seen in a generation.
More troubling, though, is his assertion that law schools are “exploiting” their applicants; and his utter failure to address the massive dearth of access to legal assistance faced by this nation’s citizens–not its law graduates–at the “bottom of the pyramid.”
Finally, Toobin, makes the assertion that “[t]he vast middle of the legal academy—at the big state schools, for instance—is doing only a little better than the schools at the bottom.” He seems to be referring to debt load of graduates, but fails to contextualize the assertion at all. And what of the actual justice-serving work that we in Toobin’s so-called vast middle of the legal academy are engaged in? What of the successful petition to the Inter-American Commission on Human Rights by the University of Miami’s human rights clinic faculty and students on a domestic violence case, yielding a globally landmark decision on police practices in domestic violence cases? What of the MacArthur Foundation grant awarded to Professor Sarah Deer of William Mitchell College of Law to continue her legal work empowering tribal nations to protect their citizens from violence?
Perhaps Toobin’s article title includes the term One Percent because he focused on them, rather than the Occupiers.

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“Thirty-One Themes of Thought” is the title I gave my fifth grade class poetry compilation.  What could this possibly have to do with best practices for law professors?

This post, my first for this blog I have long admired, I conceived as a commentary on what I call my “thematic” approach to law teaching.  In my doctrinal Family Law course as well as in my Family Law Clinic I stress recurring themes: the intense public-private tension inherent to Family Law; social change as catalyst for legal developments; storytelling as advocacy; client-centeredness; and holistic lawyering.

As I pondered this concept of “thematic teaching” my mind wandered repeatedly to that alliterative “Title” my 10-year-old brain fashioned . . . 35 years ago.  My use of the word “theme” was likely less about dedication to big-picture thinking than it was about grappling for a word other than “poem” to make my little manila-folder-booklet different from the rest in some small way.  Yet upon further reflection I find a resonance in that word choice with my current work and my teaching style.  Calling my booklet “Themes of Thought,” I believe demonstrated a constant yearning for connectivity (hence the alliteration) and a broad view (referencing the “thought” our class put into each poem)  that is part of my identity.

Taking a thematic approach to law teaching is not something I was taught–it is something that I developed organically as I grew the past 12 years as an educator.  And although I have been aware of it as my approach for years, I just a few months ago began to name it and reflect on it.  Reflection, I firmly believe, is a fundamental aspect of my professional growth as a professor and a lawyer, but also of my students’ growth.  Reflection as a tool in clinical law teaching is nothing new.  I first experienced it as a law student invited/required to submit journals routinely during my clinical year.  Borrowing that tool from my mentors was arguably the single best decision I made as a new clinical professor four years ago.  Reflection fosters self-awareness, which fosters a maximization of strengths.  Lawyers work hard, think critically and often receive little praise from clients and judges alike–not to mention opposing counsel.  Reflecting on one’s accomplishments and professional development, in addition to client interactions, shows budding lawyer (our students) that they can do this work and in fact are doing it well on many fronts.  By the same token, the opporutnity for feedback from their professor or other clinical supervisor through submission of journals is a safe and controlled space to reflect on mistakes and engage in contemplation about how to improve skills while a mentor helps them process those often uncomfortable realities.

This methodology of reflection and self-awareness is different in the traditional law school classroom setting than clinics, but it can be done.  Several colleagues have written and presented at conferences on using written reflections and other tools in non-clinical classrooms.  In my thematic teaching paradigm, I use several approaches in my Family Law lecture course, which often holds enrollment of over 50 students:

1. On Day One of class I explain the main theme of the course, which is the public-private tension mentioned above.

2. My “big picture” approach is evident from both my remarks that day in class; my syllabus which describes each class period’s theme; and the casebook, which opens with commentary on that very same public-private tension unique to Family Law.

3. I assign casebook material for Day One, comprised of several United States Supreme Court cases interpreting Due Process liberty interests.  During class I ask students to ponder why a course on Family Law suddenly looks so much like a Constitutional Law course.  Drawing their attention back to the public-private tension theme, I remind the students that Due Process liberty inquiries center around that same public-private tension.

4.  One Day One I dispense the material via lecture and PowerPoint, but clarify that I use the Socratic method from Day Two forward and call on students at random.  The Socratic method promotes self-awareness and reflection in a way no other methodology can offer, when managed successfully.  Each teacher must define success for themselves, but for me it means engaging the student about why they responded as they did, regardless of the accuracy of that response.  Even if the response is flawed in some way, I invite them to thoroughly vet it.  Then I clarify any flaws–with compassion and professional respect.

5. Volunteered answers, and questions, are welcomed in my classroom.  The questions are particularly useful for promoting reflection as well as larger themes, as they often stem from common public misconceptions about Family Law ripe for discussion.

6. Returning back to Day One for a moment, I ask the students something critcal after my introduction of the course themes and my teaching style, but before my lecture on the assigned material.  I invite them to mindfully reflect on whether this course will serve their needs as a learner.  Immediately, they as listeners are cued to reflect what they do need as learners of the law.  With what I hope is humility, I remind them that my brilliant colleague Dara Purvis also teaches Family Law and they can take the course with either prof. Students dropping my course after hearing that speech does not offend or scare me, and I stress that.  Occasionally a student walks out at that point, never to return.  That is utterly fine.

7. Finally, the final exam.  After a semester of thematic teaching and, one can assume at least a sliver of reflective learning, the students are asked at least one question on my exam about the public policy aspect of Family Law. The question is not a fact pattern.  Other parts of my exam utilize those.  But the policy question asks them to consider (and sometimes describe) an area of Family Law and what they learned about it, and opine on the efficacy of that legal framework or approach.  I like to end the semester the way we began, with reflection on the big picture, with consideration of our legal system as social underpinning.  How does the law reflect our values and social norms? Who gets to define those norms?  How much government regulation of private decision-making on personal matters is too much?

What is your signature teaching approach?  I ask my clinic students to reflect on what is their unique style of lawyering.  As their teachers I believe we are well served by reflecting on what is our unique style of teaching. The growth among our academy and our students is symbiotic.  Let us embrace that.

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