Building on Best Practices now available as eBook

Are you trying to:

  • Develop a meaningful law school mission statement?
  • Understand new accreditation requirements, learning goals, and outcomes assessment?
  •  Expand your experiential offerings?  Decide whether to use modules or courses?  An on-site clinic, an externship, or community partnership?
  •  Teach ALL of your students in the most effective ways, using a full range of teaching methods?
  • Add to your curriculum more of the professional identity, leadership, intercultural, inter-professional and other knowledge, skills, and values sought by 21st century legal employers?
  • Lead thoughtfully in the face of the challenges facing legal education today?

These and other topics are addressed in Building on Best Practices:  Transforming Legal Education in a Changing World,  now available in ebook format from LexisNexis at no charge.

The print version is not yet out.  LEXIS-NEXIS is taking advance orders for $50, plus shipping.  BUT we understand that they will make one copy available to every US legal educator for free upon on request.  Details on this and international availability still to come.

Thanks, and congratulations, to book project sponsor Clinical Legal Education Association (CLEA), the more than fifty legal educators who participated as authors, and the countless others who assisted as readers and in numerous other ways.

And, a huge shout-out to my wonderful and talented co-editors, Lisa Radke Bliss, Carrie Wilkes Kaas, and Antoinette Sedillo Lopez.

Five Problems to Avoid in Writing Student Learning Outcomes

As law faculty across the country strive to improve student learning and meet ABA standards of accreditation through the assessment process, it is perhaps appropriate to stop and assess our efforts in that regard.  Here are five common problems that occur when first writing learning outcomes for a course:

1. Don’t focus on you – focus on the students
Student learning outcomes are designed to give students an idea of what they will be learning.  Avoid learning outcomes that describe what or how your will teach and instead focus on what the students will be able to know, do, or believe.

NOT: UMKC457  Trees as Thought
Student learning outcome:  In this course, I will be exploring the philosophical thought experiment “If a tree falls in a forest and no one is around to hear it, does it make a sound?”  I will explain my book “Trees as Focal Points for Reality” and refute critics of the proposals presented therein.

BETTER: UMKC457  Thought Experiments
Student learning outcome:  At the end of this course, students will be able to think critically and communicate effectively the metaphysical theories regarding the existence of that which cannot be perceived. Students will be able to describe how the theory of subjective idealism has impacted religious and scientific philosophy.  Through discussion and written reflection, students will demonstrate clarification of their individual values.

2. Avoid Vague Verbs
Probably one of the most common verbs found in student learning outcomes is “understand,” as in “students will understand [course content].” The problem with this as a learning outcome is that it is difficult to know what evidence would demonstrate that understanding.  A student learning outcome that uses more active and concrete verbs can unpack the type and degree of “understanding” that a professor expects.

NOT:   LAW8000  Family Law
Student learning outcome:  Students will understand the law regarding marriage regulation and the constitutional constraints on that regulation and the law of divorce, including child custody.

BETTER:  LAW 8000 Family Law
Student learning outcome: At the end of this course, students will be able to:
• identify the legal issues raised by a fact pattern involving a marriage regulation, make critical and effective arguments regarding the meaning of that regulation and its constitutional validity, and confidently predict the outcome of a challenge to that regulation
• identify relevant facts necessary to gather from a client seeking a divorce and child custody with property including real estate and pensions; draft a complete and legally effective petition for that divorce and custody action, including a parenting plan; and identify legal issues and make critical and effective arguments, applying the statutory and case law, to determine the divorce, property division, child custody and economic support in the case.
To read more about it, see Chapter Two. Understanding Understanding, of GRANT WIGGINS & JAY MCTIGHE, UNDERSTANDING BY DESIGN (2nd Ed. 2005).

3. Avoid “elementitis”
A student learning outcome should not merely summarize the syllabus or be a list of topics the course will cover.  Rather, the student learning outcomes should focus on thematic elements that tie these topics together or ways in which the students will be able to use this knowledge.  As David Perkins of the Harvard Graduate School of Education notes:
We educators always face the challenge of helping our students approach complex skills and ideas. So what to do? The two most familiar strategies are learning by elements and learning about. In the elements approach, we break down the topic or skill into elements and teach them separately, putting off the whole game until later — often much later….to have a little fun I call it ‘elementitis.’
DAVID PERKINS, MAKING LEARNING WHOLE: HOW SEVEN PRINCIPLES OF TEACHING CAN TRANSFORM EDUCATION (2010).  Avoid student learning outcomes that are plagues by “elementitis” and describe instead what it is students will be able to do with course coverage.

4. Don’t Always Expect Mastery
Student learning outcomes should indicate not only the content the students will learn but how well they will learn it.  We cannot aim for mastery of all aspects of the course.  Rather, learning outcomes in some courses are necessarily going to be at an introductory level (students will “recognize” or “describe” or “identify”) while other outcomes may be aimed at higher levels of mastery.  An effective tool to determine the proficiency level of your learning outcomes is Bloom’s Taxonomy of Educational Objectives, which provides a hierarchy of increasingly sophisticated learning outcomes.  To read more about it and see a list of verbs associated with differing levels of learning, see Rex Heer, A Model of Learning Objectives from Iowa State University Center for Excellence in Learning & Teaching (2012). To read an application of this model to law school, see Paul Callister, Time to Blossom: An Inquiry into Bloom’s Taxonomy as a Hierarchy and Means for Teaching Legal Research Skills 202:2 LAW LIBRARY JOURNAL 191 (2010-12).

5. Don’t Avoid Outcomes that May be Difficult to Measure
Student learning outcomes for a classroom rarely will focus entirely on the acquisition of knowledge.  At a minimum, most classes expect students to develop their cognitive and communication skills in using the knowledge base of the course.  Courses may also help students to clarify values, reconsider beliefs, appreciate new perspectives, or develop greater self-awareness.  Some faculty recognize that these skills and values are some of the most important benefits that students take away from the courses, but are reluctant to state these as learning outcomes because they are unable to “test” these outcomes.  However, any important skill or value can be assessed – even if there is a good deal of subjectivity involved in that assessment.  By stating these objectives as learning outcomes, faculty members can challenge themselves and their students to more clearly describe the dimensions of this learning.  Measurements of this learning may be through written reflections, observations of performance, or surveys of opinions.  These are perfectly valid assessment tools.

Unlearning as Learning Outcome

As the newly revised ABA accreditation standards 301 and 302 now require law schools to clearly articulate and publish their learning outcomes for their students, so individual faculty members must do likewise. Yet it is not uncommon to see these learning outcomes statements that read like the table of contents of the textbook used to teach the course. To truly be effective in driving learning and teaching, learning outcomes must be targeted, concrete, measurable and active (not “learning about” but “learning how to”).

How do we most effectively choose and articulate these learning outcomes? In MAKING LEARNING WHOLE: HOW SEVEN PRINCIPLES OF TEACHING CAN TRANSFORM EDUCATION 83-89 (2010)., educational specialist David Perkins emphasizes that learning is most effective if learners “work on the hard parts.” Similarly, the UNDERSTANDING BY DESIGN framework, originally developed by Grant Wiggins and Jay McTighe, emphasizes beginning the search for course goals by looking for the “Big Idea” in the course. These are the ideas or themes that can be used throughout a legal career and that require a lot of work to master.

One of the most effective ways to uncover these “big ideas’ or ‘hard parts” is to focus first on unlearning outcomes – that is, preventing and addressing predictable misunderstandings in the course. Thus, for example, much of the first year of law school is devoted to “unlearning” the positivist philosophy of students who believe the law is resolutely determinate. These fundamental misunderstandings are persistent, difficult to overcome and block learning of new ideas. Students construct knowledge by building on prior understandings. If those prior understandings are incomplete or incorrect, new learning will be flawed as well. As summarized by NATIONAL RESEARCH COUNCIL, COMMITTEE ON DEVELOPMENTS IN THE SCIENCE OF LEARNING, HOW PEOPLE LEARN: BRAIN, MIND, EXPERIENCE, AND SCHOOL: EXPANDED EDITION 11 (2000), “teachers need to pay attention to the incomplete understandings, the false beliefs, and the naive renditions of concepts that learners bring with them to a given subject.”

In her new book, Building a Better Teacher: How Teaching Works (and How to Teach It to Everyone) ( 2014), Elizabeth Green reviews the research concluding that effective teachers (as measured by student learning gains) are those who are able to identify the reasons that students misunderstand and help them to unlearn those misunderstandings.

Some of the most fundamental misconceptions that students bring to a subject from their own experience (or from bad course outlines passed around from prior semesters) must be discovered in the classroom. Brief classroom assessment devices such as “minute papers” or statements for the students to complete can easily generate a range of incorrect or incomplete understandings for any given topic.  The mission to discover student errors leads faculty to many of the best practices in teaching: regular interaction with students, frequent and meaningful feedback, and active learning strategies.

The power of an “unlearning” perspective on assessment improves student learning, but also quickly leads faculty to a deeper understanding of what assessment of student learning oucomes means.  Assessment is not an end-point, a box to be checked, reported and forgotten, but is an iterative process of discovery and experiment that drives students and faculty learning alike. Assessment tools (such as quizzes, socratic dialogue, essays, simulations, and reflections) might be used to unearth student misconceptions.  These misconceptions then become the basis for the learning outcomes around which one can build a course and assessments then can be used to determine the extent to which one is successfully dislodging misunderstanding and misconception and replace it with a solid framework mastery.

The Baby Has Finally Been Birthed!

Comprehensive revisions passed

The ABA House of Delegates passed the comprehensve revisions with “minimal  fuss” according to the ABA Journal linked  above.  One area, however, garnered  significant attention and also resulted in  an odd, though perhaps meaningless ,  procedural move.  The House voted  to send back to the Section on Legal Education for further consideration the comment to standard 305 which prohibits payment to students for credit-based courses.

What does this mean? Law schools which have not already done so must start identifying, articulating publicly and assessing student learning out outcomes, providing every student six  credits of clinic or clinic-like experiential courses and requiring students to take two credit hours worth of professional responsibility coursework.

Well, it’s a start……

The most fun grading ever, really

The words “fun” and “grading” rarely appear in the same sentence.  However, my large section civil procedure and evidence students’ extra credit projects really are fun to grade.

 The Assignment

Students get extra credit if they develop a creative way to explain one of the more complicated concepts we cover in class.  Students receive the following instructions:

You may work alone, or in a team of up to four people, to create a video, comic book, song, game, poster or some other creative way to explain any one of the following concepts: relation back of amendments; work product; expert discovery; summary judgment; claim and/or issue preclusion [in Evidence the list includes hearsay, character evidence, expert testimony and impeachment]. You may choose to focus on particular aspects of these concepts or the entire concept. 

The project will be worth up to 6 raw score points toward your final raw score total. [The most raw score points available in the class toward a final grade, excluding extra credit, is 100].

Points for the extra credit project will be allocated based upon: creativity; content chosen and explained [i.e. if you take a very simple portion of a rule and explain that, you will likely not get many points]; demonstrated understanding of the applicable rule[s]; communication of the rules to other students. Your project will be part of the review session in the final class.

The Projects

About two-thirds of the class normally turns in a project.  The grades usually are between 4 and 6 points, although I have given some projects a 1 or 2.

Some students developed projects based on television shows or movies. For example, in civil procedure, students developed this game show video on work product

The student actors all imitated various faculty members – complete with wigs, hand gestures, and hair flips. Another group of students in civil procedure did a spoof on the Back to the Future movies to explain relation back.

Other students developed a twitter feed on work product.  Some students used board games for inspiration.  A group of civil procedure students produced an elaborate game entitled “Battleship Preclusion

bp photo

The next year, many of those students took my Evidence class and created a new game: “Escape from the House of Hearsay

 bp photo1

Others developed projects using music and poetry.  For example, in Evidence, students developed a song to help explain hearsay, “The Hearsay Saga of Johnny and Sue”:

This stanza from a poem on character evidence made me laugh:

Hope you enjoyed this poem, I sure had fun.
I hope character evidence no longer makes you want to run
Despite this poem I’m sure we will still all cram
So that we do not fail this godforsaken Evidence exam.

These are just a small sampling of the wonderful creative projects.

It’s Not Just Fun and Games

The Best Practices suggestion that doctrinal faculty use multiple methods to assess student learning [chapter 7] prompted me to develop this creative extra credit assessment.

The assessment has multiple learning objectives.  First, the projects require students to learn the material because they cannot communicate creatively if they do not fully grasp the underlying doctrine.  Anecdotally, when polled via anonymous clickers about the assignment, most said working on the project was either very, or somewhat, useful to their learning.

This assessment also seeks to develop students’ abilities to communicate complex material beyond how they would do so in class or on an exam.  Using different mediums to communicate information is a useful skill.

Additionally, this project allows students to express themselves creatively.  Creativity and innovation are amongst the Shultz/Zedeck lawyering effectiveness factors.

Finally, assessing students on what largely end up being visual presentations provides an opportunity to assess the students’ grasp of the material in a format that may be used by tomorrow’s lawyers to communicate information.

The Impact on the Final Grade

Why make it extra credit rather than required?  Although I believe the projects have educational value, I make them extra credit because some students get anxious at the idea of having to engage creatively with the material.  Also, I want students to have some degree of autonomy about where they spend their time and energy.

I have been asked if this type of extra credit project “changes the curve”.   Underlying that question is the assumption that the way we traditionally grade has a validity that may be skewed by a project such as this one. I question that assumption.

This project measures students’ ability to understand, and communicate that understanding, in a different, but not less valid, way than a multiple choice or essay exam questions.  In some ways, giving extra credit for these projects is analogous to giving class participation credit.

Additionally, those who do not participate presumably can use the time students spent on the projects to study the doctrine.  Thus, the non-participants at least theoretically might have a leg up in terms of the material to be tested via a traditional final.

The Take Away

As we explore ways to prepare our students for practice in tomorrow’s world, we should consider alternative ways to assess knowledge and communication skills, and we should encourage creativity and outside the box thinking.  These projects do that.  And, they are fun to grade.

Evidence Based Experiential Learning?

Over on the Legal Whiteboard, Bill Henderson has an interesting post noting that despite the current call for more experiential education, we lack evidence to answer two key questions:

“(1) Among experiential teaching methods, which ones are the most effective at accelerating professional development? And (2) among these options, how much does each cost to operate? Quality and cost must be assessed simultaneously.”

Henderson is the principal researcher on Northeastern Law’s Outcomes Assessment Project (OAP) that is attempting to answer the question “Does Northeastern’s legal education model accelerate the development of law graduates who are ready to practice and to serve clients?” As Henderson notes, selection effectsmake these challenging questions to answer given Northeastern’s distinctive characteristics, including a progressive, public interest tradition, and a student body with high numbers of women and LGBT students decades before the rest of legal education.

If the OAP project shows that Northeastern’s legal education model does accelerate the development of its graduates, here’s an interesting follow-up question: Will that result be due to the co-op model specifically, or simply to the greater integration of exposure to practice into their students’ education than is typical. In other words, would a different version of a “marble cake” curriculum model have the same benefits?

The Ideal Law School Graduate? A ‘People Person’ Who Can Do Research

By: Jacob Gershman

You can be a sharp writer and a nimble researcher who is skilled at analyzing cases.

But for law school graduates entering the workforce, it’s the softer skills, like work ethic, collegiality and a sense of individual responsibility, that really impress legal employers, according to a new study.

University of Dayton School of Law researchers conducted focus with legal employers to find out what they expect from new law school graduates.

Dayton law professor Susan Wawrose said researchers had thought that the attorneys would focus mostly on the need for basic practical skills, like writing, analysis and research. But comments on soft skills — defined as “personal qualities, habits, attitudes and social graces that make someone a good employee” — tended to dominate the responses.

“The most surprising outcome of our research was the primary importance employers placed on the ‘intra- and interpersonal (socio-emotional)’—soft skills—needed for workplace success,” writes Ms. Wawrose, who authored a report on the study appearing in the Ohio Northern University Law Review.

The researchers interviewed 19 attorneys in the Dayton area who are “actual or potential employers” of graduates from the law school. Most were employed at law firms of varying size. Several others worked as in-house counsel, as an assistant federal public defender, or for legal aid.

The focus group participants said ideal job applicants have a strong work ethic, can work independently without excessive “hand holding,” and would bring a positive attitude to the workplace.

One attorney griped about new hires who “come in . . . [with] this expectation that we’ll sit down and kind of spoon feed them.” Others agreed that some attorneys fresh out of school think “they have a law school degree so they’re entitled to rise up and become partner.”

Other comments suggested that law schools put more of an emphasis on teaching research:

Employers, particularly those with more years in practice, rely on new attorneys to be research experts. The employers in our focus groups have high expectations when it comes to new hires’ research skills, i.e., “[t]hey should be able to adequately and effectively find everything that’s up to the minute.”

Being a research expert also means knowing how to scour books, not just websites, the paper said. “Statutes, treatises and encyclopedias, and desk books are the sources employers still use in paper form. For this reason, new attorneys may want to be familiar with these paper sources,” writes Ms. Wawrose.

The employers also observed that while some new hires are good at cranking out a “full-blown research memo,” the same ones stumble on shorter assignments:

The purpose and audience of the assignment are the key. “[T]hey need to be very cognizant of who their audience is.” Is the document for a client? And, which client? Is it the one who is “very busy” and “want[s] to know, ‘boom,’ ‘what’s the answer[?]’” Or, is it the client who is “all into the details” and will feel “nervous if you don’t give them all the specifics.”

http://blogs.wsj.com/law/2013/11/25/the-ideal-law-school-graduate-a-people-person-who-can-do-research/

Congratulations UNM and Editors of the proposed new Best Practices Book!

This weekend, the University of New Mexico hosted a workshop BEST PRACTICES IN LEGAL EDUCATION: The Walls Are Coming Down” in which draft chapters of a new “Best Practices” book were reviewed and discussed.  The proposal to create a second book focused on best practices in legal education is the brainchild of Professor Antoinette Sedillo Lopez, ably assisted by Professors Deborah Maranville, , Carolyn Kaas and Lisa Bliss. The symposium workshop brought together law professors from throughout the country interested in how legal education and the world of law schools has changed since the publication of the 2007 book Best Practices in Legal Education. Facilitated by Professors Beryl Blaustone and Alex Scherr, the conference explored how many law professors fluidly move from former silos of clinical, legal writing, lawyering, librarian, doctrinal, theory, or skills concentrations to pioneer a new kind of curriculum, better prepare students for the profession, explore the limits and usefulness of technology, and deepen the understanding and learning of law students through self-improving assessment processes.

Fully cognizant of the pressures on legal educators, the fact that not all in legal education welcome the need to change, and the moral imperative to address the concerns of debt-ridden unemployed law students, the authors, editors, advisory board members and readers reviewed challenges, cross-cutting themes and areas of promise. They engaged in innovative thinking about how to move legal education forward for the good of the profession, society and the students who desire to be lawyers of tomorrow. The keynote speaker for the Friday night dinner and author of the first book, Professor Roy Stuckey, directed the participants’ attention to what legal education should look like in 2027. At the same time, he reminded us that those seeking to improve legal education today stand on the shoulders of folks such as the honorable Rosalie Wahl and former ABA president Bob MacCrate who paved the way for the changes we have seen in the last 40 years. He recalled their joint mission to prepare “agents for justice in our communities.”

Every law graduate needs to understand fully that civic professional role of the lawyer. And every admittee to the bar has a sworn duty to improve our system of and access to justice. Returning to those principles can help prioritize our cost-cutting and can position us to move forward in the best interests of our students, our institutions and the society our profession is pledged to serve.

A rose by any other name: Evaluation and Assessment at Cross Purposes

A barrier to developing, improving, or sharing our assessment practices is the confusion surrounding the vocabulary of assessment.  Whenever it occurs or by whatever method, assessment is simply the process of discovering what and how well students have learned and then using that information to improve. One can quickly become mired in a sea of words that feel like jargon, with assumptions that confuse and distort the real meaning of this otherwise familiar practice of all good instructors. Part of the problem is that the language is not our own and so, by its very adoption, reinforces the impression that assessment is an intrusion into our classrooms.  Because these confusions are so destructive to the ability of an institution to move forward with assessment, we must either work to make this vocabulary our own or develop a different vocabulary for the same ideas.

Even though discovering what students have learned in order to improve teaching is a natural part of a good teacher’s practice, law schools are having difficulty in knowing exactly what this talk of assessment means. Faculty frequently mistake outcomes assessment for something more complex, unusual, or even sinister. “Assessment” becomes confused with “evaluation” (as in program or teacher evaluation) or “standardized testing,” and, before long, we are thinking of K-12 school district funding decisions based a “No Child Left Behind” external control of education.

There is a fundamental difference between assessing student learning for the purposes of program or teacher evaluation and assessing student learning for the purposes of improving that learning.  If we are assessing for accountability, we collect data (e.g., pass rates) about students learning outcomes that we do not necessarily control (e.g. bar exams) so that we can report that data to external constituencies (e.g. accreditors). In contrast, if we are assessing for student learning, we observe evidence (e.g., essays, performances) of student learning outcomes that we have designed ourselves so that we can interpret and use that evidence to improve the learning of our students.  When accountability to those outside the learning process is the driving force behind assessment, the temptation may be to assess only those learning outcomes that we know students have mastered and avoid looking for places where learning could be significantly improved.  We might skew our teaching and curricula away from learning outcomes we truly care about to more closely match the learning outcomes we believe outsiders consider important.  Of course that already does happen to some degree.  The influence of ABA standards of accreditation and bar examinations on curricula is so obvious we may not even recognize the degree to which our faculty control of the program of legal education is directed by these learning outcomes and assessment methods.

It is against this backdrop of fear that some law teachers approach the topic of outcomes assessment.  However, resisting assessment out of a concern that others will rob law faculty of their freedom means giving up one of the most powerful tools to protect that freedom. If a faculty can clearly communicate the learning goals they have for their students, and can demonstrate how their program of legal education leads to more students accomplishing those learning goals at higher levels of mastery, that proof of learning can become powerful tool for demonstrating accountability: to the students, the academy, the bar, and the public. That is not to say that assessment for accountability will not be required or should not be undertaken with seriousness of purpose and honesty in method.  Assessment for improving student learning, however, should be just as important, if not more so, so that we can be accountable to ourselves and our students.

Free Upcoming Webinar: Flipping the Law School Classroom

Join LegalED for a free webinar on
Flipping the Law School Classroom

When:  Friday, Sept 27th from 2-3 pm EST

 What is LegalED?  Founded by law professors, LegalED is a website, legaledweb.com, designed to collect teaching materials for legal education.  The site is host to a growing collection of short videos (each 15 minutes or less) on law and law-related topics (substantive, procedural, practical skills and professional values), as well as classroom exercises and assessment tools.  The videos on substantive law could be assigned to students for viewing outside the classroom, in a flipped or blended learning environment, to supplement in-class teaching or to bring new perspectives into a course.  Here is a recent article about LegalED.

What is flipped or blended learning?  Flipped learning blends online with face-to-face instruction.  It uses the internet for what it does well – information and knowledge delivery.  When relevant information is delivered by online videos, face-to-face classtime can be devoted to learning activities that not only reinforce the knowledge, but also ask students to use their new learning to analyze, evaluate, apply or create material – all of which reinforces learning.

Registration:  To register send an email to: meeting@uif.org with your name and institution (participants will be asked to call into the webinar from a phone (with mute functionality, so as to avoid feedback) and should have access to a computer on which they can follow the presentation).

Register soon: space limited to the first 20 participants.
How the webinar will work:  We are “flipping” the instruction so that we can maximize the take-aways from the webinar through active dialogue and discussion.

In preparation, all participants will prepare (approx. 20 min.) for the session by:

(1) watching two short LegalED videos (each less than 6 minutes) on the topic of flipping the law school classroom  http://legaledweb.com/online-learning/;

(2) watching a short video on persuasive lawyering http://legaledweb.com/practical-lawyering-skills/ ;

(3) reading a blog post on how the persuasive lawyering video was used in a flipped classroom http://legaledweb.com/blog/2013/8/27/flipping-the-law-school-classroom.

The webinar is organized and presented by Professor Michele Pistone, Villanova University School of Law, with support from the Uncommon Individual Foundation, uif.org.

Cross-posted from: http://legaledweb.com/flipped-learning-webinar

New Blog

Teaching & Learning in Higher Ed. (ISSN 2329-2504), a digital project that supports teachers and reformers in higher education through encouraging serious engagement with the scholarship on teaching and learning has recently announced its full launch.

You can visit at http://teachingandlearninginhighered.org/

The website features a manifesto, an infographic, a list of recommended readings and a blog.

Submissions to the blog are welcome on an ongoing basis.

Since its soft launch in March, visitors have viewed the site more than 4500 times. Some of the most viewed posts to date (with links shortened through goo.gl) include:

Those interested can sign up on the site to receive updates of new posts by email or follow the blog through:

Please consider visiting, reading, following, commenting, sharing, and/or submitting posts to the blog.

ABA COUNCIL ELIMINATES ANY MEANINGFUL SECURITY OF POSITION FOR FACULTY AND TURNS ITS BACK ON EXPERIENTIAL FACULTY

As reported last week here, the ABA Council on Legal Education met in San Francisco to review proposed revisions to law school accreditation standards.  The ABA reviewed four proposals sent to them by the Standards Review Committee (which I described in an earlier post here) and which were intended to address  faculty competence, academic freedom and governance rights.   The Council sent out for notice and comment two of the four proposals. Some commentators have suggested that one of the adopted proposals includes some security of position and the other does not. However, a closer look suggests that neither proposal affords any meaningful security of position.  see National Law Journal  

The alternative that mentions security of position states that:

(d) A law school shall afford all full-time faculty members a form of security of position sufficient to ensure academic freedom and attraction and retention of a competent full-time faculty (emphasis added).”

At first glance, I optimistically thought “Maybe ensuring a competent full-time faculty would require something beyond at-will employment?” However,  I was reminded by a professional colleague that this proposal is identical to the current provision for legal writing professors, which has been interpreted to permit at-will contracts as long as the teachers are “competent,”  Undeterred in my optimism, I thought “Well ensuring academic freedom certainly needs to ensure some job security especially for folks like clinicians who have been attacked repeatedly for representing the powerless against the moneyed members of our society, right?”  However,  the ABA interprets that same language  in the clinical context to permit one-year renewable contracts,  as long as the institution has a “policy” on academic freedom,

As Amy Poehler would say “Really!1?!  Really!?!”    Is that really the kind of job security that will fill you with confidence in advocating  on behalf of seemingly powerless clinic clients or articulating unpopular but important legal positions?   And what about all this talk from the ABA and the profession about how students need to be better prepared for practice and the profession.   “Really!1?!  Really!?!”  How is that going to happen when you de-value those in the academy who teach through supervised practice ?   CLEA President Kate Kruse got it spot on when she wrote on the clinic listserv,

“Because tenure is now and is likely to remain the norm only for doctrine professors, both of these provisions protect current faculty power relationships and threaten the presence in legal education of teachers specializing in experiential education.’

That is not good news for legal education, law students or future clients.  REALLY.

Are The Walls Coming Down?

Happened upon Eugene Volockh’s blog post on peer feedback today, though he didn’t use that term.  Struck me as  great example both of the way “the walls are coming down”  in legal education and of the distance we have to go.  Volokh,a high profile libertarian 1st Amendment Scholar, is launching a  First Amendment Amicus Brief Clinic this fall.

Two possible cracks in the walls suggested by the post, and their limitations, and a crack that wasn’t one:

1. Classroom v. clinic:   Since he began teaching in 1994 at UCLA at the ripe age of 26,  Volokh has taught. courses such as Constitutional Law, Criminal Law and Torts.  This appears to be his first foray into clinical teaching.  Not surprisingly, given that he went into law school teaching directly from appellate clerkships, his clinic is focused on a narrow skill long addressed in legal education– appellate brief writing.  And his clinic will operate in a context — amicus briefs — that does not require traditional client contact.  Nonetheless, it’s an example of what I hope is a growing trend, not limited to appellate clinics.  (My hope is fed in part by the example of my colleague Anita Ramasastry. In winter 14 she will co-teach an exciting new international human rights clinic focused on preventing, or remedying, human rights violations by businesses.)

2. . Intellectual v. Interpersonal Skills: Teamwork skills, such as the “ability to cooperate productively,” are a classic example of the interpersonal skills that are too often denigrated as “soft” and therefore neglected in legal education.  Perhaps  significant that Volokh, an intellectual prodigy — B.S. at age 15, former techie — recognizes the value of these skills, though not clear from the post he is aware of work done on teaching teamwork by people like Barbara Glesner Fines and Sophie Sparow..  

Prof. Volokh informs me that the the point below was based on incorrect information — apparently the UCLA and Southwestern efforts developed independently.

3.  Elite v. non-elite law schools: Volokh doesn’t mention it, but the offering will apparently be a collaborative effort involving both Southwestern Law School, though Southwestern refers to it as a practicum,* and UCLA.  That a sturdy wall remains between elite and non-elite schools is, no doubt, evidenced by the the fact that  neither school’s clinic website trumpets the collaboration.

*Terminology — a subject for another day.

Four Proposals on Faculty Forwarded to Council on Legal Education

As readers of this blog remember, the July ABA Standards Review Committee (SRC) meeting was slated to be an important one. SRC actions taken with respect to the curriculum and program of legal education were discussed by Professor Michele Pistone last week here. In this post, I want to alert readers to the SRCs decisions regarding faculty competence, tenure and security of position, governance rights, and compensation and perquisites. I have read Karen Sloan’s National Law Journal article discussing the July meeting here. In addition, I reviewed the very helpful and thorough CLEA and SALT reports on the meeting submitted by Professors Claudia Angelos and Carol Chomsky here.

HOW FINAL ARE ANY RECOMMENDATIONS FROM SRC?

The CLEA/SALT report does a good job of explaining the process.

The Council of the ABA Section of Legal Education and Admissions to the Bar is the accrediting agency for JD programs in U.S. law schools. The Council’s Accreditation Standards, contained in the“ABA Standards and Rules of Procedure for Approval of Law Schools,” are subject to a comprehensive review every five years. The Council has delegated to the Standards Review Committee, an appointed committee comprised of legal educators and others, the task of recommending changes to the standards. After receiving a report and recommendation from the SRC, the Council asks for comment from interested constituencies on the proposed changes and then acts on the SRC’s recommendations…

The SRC’s proposals most notably include final recommendations on student learning outcomes and on faculty tenure, governance, and academic freedom (emphasis added). The Council will receive and discuss these recommendations at its next meeting, in San Francisco on August 9, 2013. After the Council considers and possibly amends these recommendations, they will be sent out for notice and comment by the public.

WHAT DID SRC DO AT THE JULY MEETING?

1.  Proposed eliminating the minimum faculty-student ratio requirement. As Karen Sloan in the National Law Journal points out,

The ABA committee reviewing the organization’s accreditation standards has voted to do away with the rule establishing a minimum student-to-faculty ratio. The panel reasoned that determining the true size of a law school faculty is just too complicated, given the number of adjuncts and non-fulltime teachers.

Law schools would still have to have enough faculty members to carry out their mission and comply with all the other accreditation standards, said Barry Currier, the ABA’s managing director for accreditation and legal education. But schools no longer would need to annually ensure they have at least one fulltime faculty equivalent for every 30 students.

Read more here.

2. The SRC also sent four proposals (A-D) regarding faculty security, academic freedom and governance up to the Council on Legal Education. The CLEA/SALT report states

All four alternatives contain provisions requiring law schools to adopt and adhere to policies that provide that all full-time faculty have academic freedom and “meaningful participation” in law school governance over mission and curriculum. They all require (in varying language) that schools have a comprehensive system for considering and making decisions regarding promotion, tenure, renewal of contracts or other forms of security of position, and termination. While there are some bedeviling details, the primary differences among the four alternatives relate to tenure and security of position for faculty.

MARY’S ANALYSIS:

The recommendations on Faculty must be read in conjunction with other recommendations in Chapter 4 and in other Chapters and can only be fairly viewed as part of an integrated whole. Moreover, the Council must use common sense and their experience of human behavior in deciding appropriate rules.

For example, Alternative D proposes no security of position (including tenure) for any faculty member. The only requirement is that a school demonstrate it can “attract and retain a competent faculty.” This proposal assumes one can ensure academic freedom (required elsewhere in the rules) without tying it to security of position. Now, in the abstract that may appear like a workable plan. But seriously, outside of academics, pundits and those who are so independently wealthy that security of employment matters little, where has anyone witnessed regularly an employee freely declaring, writing, and advocating on controversial or unpopular subjects and the advocacy having no bearing on one’s ability to keep one’s job, support one’s family and pay one’s bills?

In another example, the SRC proposals under Chapter 3 Program of Legal Education require law schools to focus more intently on student learning outcomes, experience-based opportunities, academic support for students, and preparing students for practice. This push was demanded by consumers, the economy, and the profession, and the proposed revised standards appropriately respond to those demands. However, that kind of teaching requires small class sizes, close supervision and multiple feedback opportunities. Yet,the SRC proposal eliminates minimum faculty-student ratio requirements. In addition, the student-learning focused activities encouraged by the standards will, in the real lives of faculty and students, compete with the ability to spend considerable time working on intense writing projects and pathbreaking scholarship. Thus, one would think that both activities should be, at the very least, equally encouraged and certainly there should be no DISINCENTIVE to focus on teaching rather than primarily focusing on scholarship. Yet, in all but one of the faculty proposals sent to the Council the standards allow for discrimination in security, compensation, and/or governance against many of the very faculty members who will be working most closely on student learning needs and innovative teaching.

If you care about legal education, about preserving academic freedom while updating law school teaching to meet the challenges of a global digitalized economy, be vigilant. As noted above, the Council considers these recommendations at its San Francisco meeting on August 9, 2013 and will soon send them out for public notice and comment.

Maximizing Active Learning

The Institute for Law Teaching and Learning has some fascinating ideas about getting students invested in the materials they are learning. Most recently, Sophie M. Sparrow at the University of New Hampshire School of Law wrote:

“Engaging students in active learning has long been one of my main teaching practices. As many of us know, educational experts have found that students learn more when they are actively engaged, such as by speaking, writing, or discussing, rather than listening to a lecture or discussion. Having just completed a three-day workshop with educational expert L. Dee Fink on course design, however, I learned that I should redesign my approach if I want maximize what students learn from their active learning assignments. This month’s idea is about how to improve active learning exercises.”

Continue reading here.

%d bloggers like this: