After All These Years: Another Bar Exam Over, Another Entering Class, but Still a Disconnect between the Licensing Exam and What We Need Lawyers to Be and Do

I was never a Journey fan but I truly am astonished that after all these years of preparing lawyers for practice, and after two years of an unprecedented undermining of  the rule of law in our nation, law schools still live with a disconnect between the profession’s  licensing exam and what business, government and society needs lawyers to be and do, which includes protecting  the rule of law. 

The National Law Journal recently discussed two new major studies which will analyze whether the current exam is the best measure of new lawyer competence.  The National Conference of Bar Examiners (NCBE) is in the midst of a three year study  to “ensure that the bar examination continues to test the knowledge, skills, and abilities required for competent entry-level legal practice in the 21st century.”  (Hmm, continues? that’s a bit biased) and has already held 30 listening sessions.  

The second study, “Building a Better Bar: Capturing Minimum Competence” is an initiative of  the Institute for the Advancement of the American Legal System in partnership with Ohio State Law Professor Deborah Merritt, and aspires to develop a “fair, evidence-based definition of minimum competence” to improve the current licensing process.  Funded by Access-Lex, the researchers:

will be holding 60 focus groups in 12 locations around the country. While these focus group participants will primarily be new lawyers, we will also hold a number of specialized groups with supervisors. Additional specialized groups will include only women and only people of color, as well as groups in rural areas; traditional job analyses can mask the views of these lawyers, yet their perspectives are essential to create a more fully representative view of minimum competence and how to test for it effectively. Through these focus groups, we will be able to capture key information from a diversity of perspectives and provide concrete data on the definition of minimum competence that the profession can use to improve the bar exam and how lawyers are licensed.

 

Readers may remember that IAALS has provided helpful research in the past through its Foundations for Practice  research, which identified the  competencies over 24,000 legal employers value in new hires (most of which go untested by the current licensing process) as well as the evaluation of the graduates of the Daniel Websters Honors alternative to the bar exam in “Ahead of the Curve:  turning Law Students into Lawyers

I suppose I should be delighted that more studies are being launched. They are addressing the exact issues so many of us have raised for decades. However, my reaction is uncharacteristically pessimistic.  (Readers here who have tolerated my enthusiastic use of exclamation points and emphasis will agree it is uncharacteristic).  Perhaps it is the August humidity. Perhaps, it is the sorrow surrounding our nation after a week of grief from senseless gun violence But more likely, it is the fact that I am feeling frustrated that we have already studied this to death! For example, working with state bar associations The Foundations for Practice Project already studied new lawyer competencies with 24,000 lawyers from all 50 states participating and found

… the foundations that entry-level lawyers need to launch successful careers in the legal profession.

In a first-of-its-kind survey, we asked, “What makes a new lawyer successful?” More than 24,000 lawyers from all 50 states answered.

What we learned is that new lawyers need more than IQ and EQ to be successful. They also need CQ: Character Quotient. In fact, 76% of characteristics (thinks like integrity, work ethic, common sense, and resilience) were identified by a majority of respondents as necessary right out of law school.

Beyond character, new lawyers are successful when they come to the job with a broad blend of legal skills, professional competencies, and characteristics that comprise what we call the “whole lawyer.”

So why is the NCBE, who clearly has a stake in the outcome, refusing to respond to the outcome of that 3 year old study but instead promising only to do its own study. JEESH! We tweak here and there, we add more pro bono or experiential requirements, but no one truly influential will admit that our insistence on anchoring the gateway to the profession to a timed, written exam instead of clinical excellence is the problem.

Starting as early as 2008, this blog has discussed the problems with the bar exam and its role as an unhelpful, anxiety producing, discriminatory, skewed, and unnecessarily speeded, gate-keeping device.  For a sporadic history of posts between then and now, in fairly chronological order, click on the links below.

Did You Know That “Bar Courses” Don’t Matter? 

New Article: No Excuses Left for Failing to Reform Legal Education

Working with State Bar Associations on Best Practices

Bar Passage and Best Practices for Legal Education

One BAR to rule them all?

The Daniel Webster Scholar Honors Program

NYSBA Task Force on the Future of the Legal Profession Report

New Requirements for Bar Exam Stress Clinical Education

Existential Crisis and Bar Exams: what is really cruelest?

The Bar Exam Inhibits Curricular Reform

NEW YORK STATE BAR ASSOCIATION VIGOROUSLY OPPOSES PROPOSAL TO BRING UBE TO NY THIS JULY

Preparing Students for the Multistate Bar Exam

Musings on the Bar Exam and Legal Education’s Attitude toward it

Bar Exam Musings, Part II: Skillfully Changing the Bar Exam Narrative

Experts in the Legal Field Question the Bar Exam…

What’s going on in California? “TFARR- recommended” 15 credits of competency training

New York Proposes “Experiential Learning Requirements” as Condition of Licensure: CLEA and NYS Bar Committee Respond

Examining the Bar

Keeping an experiential identity in bar passage reform

Whither Clinical Courses and Bar Passage – by Prof. Robert Kuehn

DO LAW SCHOOLS ADEQUATELY PREPARE STUDENTS FOR PRACTICE? SURVEYS SAY . . . NO! – Robert Kuehn, Washington University School of Law

Professor Merritt’s Blog post on attorney discipline and bar exam WORTH A READ!

Studying Better Ways to Test Bar Applicants for Minimum Competence: Another Reason to Care about the California Bar Exam (Besides the Cut Score Debate)

Scholarship on Bar Exam Alternatives Needed

ABA Commission on Future of the Profession & ABA Vote on Bar Passage Proposal

Drafting Exams With Test-Taking Speed in MindConcrete Suggestions for Bar Exam Reform

We have to talk about the bar exam

What can Law Schools Learn about Bar Passage from Medical Schools’ Approach to Studying Students Who Struggle with Licensing Exams?

More Resources Re Teaching, Learning, and Bar Passage

A Fresh Look at the Uniform Bar Examination

Letters raise concerns about changes to the bar pass accreditation standard

Time to Remedy the Ills Afflicting ABA Council’s Standard 316 Proposal

Are the Students Failing the Bar Exam Today Canaries in the Coal Mine warning us of a More General Need to Change Legal Education?

Shifting the Focus of Legal Education Back to Just That: Education

How Practice Tests Reduce Anxiety in Bar Preparation and the Exam

Quite a listing, huh? I suspect that the IAALS and Merritt project will provide us with extraordinarily helpful insights into measuring minimum competence. But political clout is also needed. Will this BLOG simply be adding more posts for years to come on the unfairness and inappropriateness of a slightly modified, unnecessarily stressful, timed, bar exam — a continued hazing tradition?  I hope the NCBE and other institutional influencers proves me wrong.

The role of law school internships and supervisors

Today’s ABA Journal contains an op ed by a law student complaining that “law school  biases”  infringe on his right to free speech. Part of his critique involved a change in clinical policies after he wore a #BuildTheWall T-shirt to his internship.

“It had been expressed that we could wear T-shirts, and that has been the norm for my one year at this internship. I took extra precaution by bringing a light jacket to cover it up if a client came to meet with me unannounced.”

Others are better prepared than I to debate the issue generally of whether his claims demonstrate bias in higher education or bias on the part of the student. Others can ponder whether as educators, we are more apt to be triggered by exclusive versus inclusive messages since we value designing welcoming learning environments  and growth mindset .  However, I am not interested in this school’s particular behaviour or this student’s startling apparent nonchalance about how his clothing affected his colleagues, peers and the workplace.  Rather, I am more interested in developing a better understanding of the difference between an academic discussion about self-expression, and the responsibilities and possible repression of some self-expression that most lawyers and law students undergo when donning their professional role as legal interns do.

In my 30 years in clinical education, I have witnessed multiple instances of clinical faculty navigating the tricky balance in communicating professional norms, protecting clients and academic programs, and  respecting a student’s rights. Here are just a few issues we have addressed:

helping students without wealth obtain professional clothing

multicultural insensitivity to clients by both majority and minority students

student difficulty interacting with racist, homophobic and/or sexist, clients, judges, witnesses or opposing attorneys

Unlaundered clothes, smelly students

tight clothes (in men and women)

Clacking heels, scuffed shoes, or wearing clogs all day, every day, one’s whole life

Hair over eyes

dirty fingernails

evolving norms around piercing, black women’s hair, women wearing pants, more casual clothing, hair with color not found in nature

evolving norms around cell phones in local courts, e-mail

learning to use an ancient device called a telephone, to actually initiate a call or listen to voicemail

navigating support for transgender students in unwelcoming situations

drooping pants, belly showing, off the shoulder outfits, cleavage

loud talking, gum chewing,

informality in general which can appear as rudeness to supervisors

“distracting” jewelry

women students raising their voices in a question at the end of a sentence

…and I am sure you teachers can add many more. Feel free.

As a law professor steeped in clinical legal pedagogy and theory, I start the conversation with a few  questions:

  • what is the student’s “educational goal” for her academic/professional journey or experience
  • what is the student’s “lawyer goal” in the context of this internship, case or professional experience
  • what are the client’s/workplace’s needs and goals
  • what are the needs and goals of the community that supports you having this experience — the support staff, the court officers, your sister and fellow students, the local legal community (in this area I first must acknowledge my priorities and how current student behavior may close off opportunities for future students)

Then I discuss with the student how the student’s desired self-expression fits within those questions and priorities, and the possible disconnect from her goals and the programs.

This is my approach.  What do you do?

 

 

“Teaching the Next Generation of Lawyer Leaders in a Time of Polarization” – Reflections on the AALS 2019 Conference on Clinical Education

If you have never attended an AALS Conference on Clinical Education, you have missed a transforming and immersive experience that includes supportive peers, provocative learning, and meaningful scholarly discussion while celebrating student-centered community activism.   It is attended both by those who teach primarily through clinical courses and by other professors and administrators who want to learn more about clinical androgogy, experiential learning, and justice lawyering. Deans and other law school folks enjoy the intra-law school and inter-law school collaboration efforts facilitated there.  The Clinical Legal Education Association, an advocacy organization, sponsors a biannual  new clinicians workshop adjacent to the conference and supports the local community where the Clinical Conference is held through its per diem project.  The conferences are always well attended, with the 2019 conference (held last month in San Francisco, May 4-7) hosting a whopping 780 participants.

The yearly AALS Clinical Conference is not a “talking heads” conference.  The program format varies from year to year but always involves intentionally planned opportunities for mentoring and discussion in smaller groups, with ideas and resources to bring back to campus. At the end or near end of the academic year, it provides an opportunity to nurture one’s exhausted spirit and rekindle the right-brain in a community that values  fun, creativity, and play as necessary skills for long-term  survival, teaching, writing  and do-gooding. Often, cutting edge research ideas are presented here before they take hold in the rest of the legal academy or larger community.  For example, yesteryear conferences introduced legal educators to pedagogical, andragogical and curricular theories such as backward design.   In another example, I first became aware of the early research on implicit bias at a Clinical Section program, well before this concept  entered the vernacular, was discussed by the ABA, or became a CLE requirement for lawyers in New York State.

This year’s conference did not disappoint.  Its theme, Teaching the Next Generation of Lawyer Leaders in a Time of Polarization, not only was timely but was intended to suggest that, perhaps, legal educators have a role to play in decreasing polarization and advancing understanding of shared humanity.  The conference organizer’s posited the challenge this way:

Today, we and our students are confronted with threats to virtually every norm in the legal and political world –the environment we live in, a free press, election integrity, judicial independence, standards of respectful debate, facts, the rule of law. Our students appear energized and anxious to take this on, but what new tools and opportunities should clinical legal education be providing? ….

How do we build the next generation of lawyer leaders when our students have grown up in an era of strong division, attacks on institutions of government, and the frequent rejection of civil discourse? 

The conference explored how to facilitate discussion among students and others with diverse worldviews while continuing to sustain productive learning communities for all — especially including those whose identities or religious or political views are degraded by extremist or reductive narratives.  How do we continue to pronounce and support the rule of law? How do we facilitate professional engagement in civil discourse when some classrooms are sorely lacking in diversity and a few students or one individual might carry the full weight of the ignorant or degrading narrative?  The conference organizers argued we must equip our students with creativity, judgement, and a toolbox of knowledge, skills, and values that will enable the coming generation to meet these unprecedented challenges.”

Participating in the conference was wonderfully helpful to my thinking as an educator. It made me reflect and learn from others in the small discussion group settings.  Sad to say, it was not my “transmogrifier; I am not now a wise and perfect facilitator of discussion of polarizing topics. Nor am I now certified as an educational designer of flawless learning environments.  However, I do have five reflections I want to weave into my preparation for and delivery of next year’s teaching as well as import into my discussions about the legal academy.

First, I need to defend higher education and law schools when unfairly attacked. In an era when the narrative touted in some circles suggests that lefty higher education professors exist only to foist their liberal views on students,  I found the themes and discussions at this conference more consistent with my experience in academia. Instead of arrogant proselytizing, most of my sister and fellow educators, at Albany Law School and beyond, try to empower learning in their students, facilitate creative ideas in the academic setting, enhance professional development of law students/budding lawyers and encourage community benefit and access to justice through our work.  Do we always succeed? Probably not. However, most of us have the same shared goals.

Second, I need to be mindful that Americans – and probably many of our overburdened students – are simply “exhausted.” By ugly, polarizing, speech. By hateful acts. By constant “breaking news” of dysfunction in our nation’s political capital. The conference’s plenary session “America Polarized: What Drives Us Apart? What Brings Us Together?” presented the results of a research report entitled, “Hidden Tribes: A Study of America’s Polarized Landscape.” It finds an “Exhausted Majority” in the American electorate. This research has been featured in The New York Times, The New Yorker, The Atlantic, The Washington Post, The Financial Times, The Miami Herald, NPR, and CNN.

As I think of my students as containing both those excited about fighting for change but also those exhausted by polarizing discussions, how do I proceed?  How can I pick up on those cues during stressful times in the semester? How can I model and include less exhausting learning methods without shying away from ugly facts, cases, laws and legal history?  When is it time for private “one minute papers,” or private “on line feedback, submissions or comments” and when must something be thoroughly hashed out publicly?

To address this kind of polarized exhaustion, should I revisit classroom rules and class participation guidelines that facilitate learning for all my students?   In my Domestic Violence Seminar course which usually enrolls approximately 20 students, I have found some useful tools in creating an appropriate classroom climate for discussion of difficult issues. My Course Packet includes a modified version of Sophie Sparrow’s excellent Professional Engagement Expectations for the Classroom,   along with an  Assessment Rubric for Class Participation (which I modified from one my Academic Dean,  Connie Mayer,  created.  I am going to review these materials again with the concept of exhaustion in mind. (There are of course diverging views on the pros and cons of making a “safe” or educationally fertile classroom as well as what “safe” means. For contrasting views see Berkeley Education tools and an article about teaching “insensitive” topics in law schools in Atlantic Monthly). 

Third, I will remind myself of the research presented at the conference.  Research conducted by More in Common, a nonprofit research organization devoted to bridging political divides, suggests there is “more to the story” than a polarized populace. Those researchers found a wider spectrum of beliefs among Americans than one would realize when listening to, reading, or clicking on the news. They also found Americans are far more aligned on many critical issues than you might think.

For example, our data show that 75 percent of Americans support stricter gun laws, 82 percent believe that racism is at least a somewhat serious problem in America and 79 percent favor providing a pathway to citizenship for illegal immigrants brought here as children. In addition, 77 percent of Americans agree that our differences are not so great that we cannot come together.

Fourth, I will encourage students (and urge myself ) to dig underneath the polarization and understand individuals’ values and fears. Professor Daniel A. Yudkin, Department of Psychology, Yale University, a post-doctoral researcher who  presented the Hidden Tribes research results,  noted at the conference and in his NYT commentary here that

our report identifies a powerful explanation for political polarization. It shows how discrepancies in people’s “core beliefs” (their moral values, parenting philosophy, feelings about personal responsibility and so on) explain differences in their political views.

Yudkin recommends this research as an entryway to discussion for teachers and scholars.  Misperceptions surrounding values and fears can cause Americans to misunderstand and misjudge each other. An example Yudkin discusses concerns views of good parenting. Conservatives align good parenting with “manners” and “respect,” while liberals tend to value fostering “curiosity” and “independence.” Fostering a discussion about how we love our children and try to be good parents could help us understand each other’s goals and values,  even if we disagree with each other’s methods.

I will consider whether in the cases I teach, the examples I provide, the arguments I encourage students to form, the hypothetical [problems I create, whether I allow room for development of empathy for the other? Do I acknowledge the underlying common humanity of all actors – in my area, as it pertains to the “abuser”, the “sexual assaulter”, the “murderer”, the “misogynist”? Should I?

Do I focus too heavily on the best opposing argument? Do I encourage enough human empathy for the other side even when preparing students to zealously advocate for ours?

Finally, using the values celebrated and embraced at Clinical Conferences such as experimentation, joy, community support, and creativity, I will continue to struggle with but also make peace with the dynamic that advancing empathy, unity and civil discourse does not impede or undermine my obligation to call out injustice. Upholding the rule of law does not preclude admitting the many times the law fails and how it rarely meets its aspirations in the daily lives of so many of our sister and fellow Americans.

Thank you to the the AALS Clinical Conference organizers, presenters and participants and the CLEA workshop organizers and presenters for providing me so much to reflect and improve upon this summer.

 

Disruptive Leadership in Legal Education

Nicholas A. Mirkay and Palma Joy Strand*

NOTE: This is an abridged version of the full essay available at: https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3309981

“The act of leadership is not always comfortable.”[1]

Last spring, the Wall Street Journal unveiled “The Captain Class,” a new feature focusing on “the lessons and strategies of leadership.”  The inaugural column by reporter Sam Walker focused on leadership changes at Boeing over the last decade when its Board of Directors intentionally hired Jim McNerney, a “disruptive leader,” to redirect the company’s trajectory.[2]  “The company had been floundering, and the digital revolution was barging down the gangway.” The landscape for Boeing’s business had transformed, and Boeing needed to adapt.

Disruptive leaders who reorient institutional culture, Walker observed, necessarily “embrace conflict, are ruthlessly direct, and intellectually irreverent.”  Theoretically there is a “gradual way to renovate a proud old institution,” but change rarely unfolds that way.  Rather, “[h]istory shows that it usually comes down to one determined individual—someone who bursts through the door swinging a 7-iron.”[3]

While neither of us regularly swings a 7-iron, to our own surprise we recognized ourselves in the description of disruptive leaders prodding a proud old institution to evolve to meet a changing environment. Two years ago, both of us were full, tenured professors at the Creighton University School of Law.  We sought to position the law school as a leader in responding to the shifting and uncertain landscape that currently characterizes law, the legal profession, and legal education.  Because of institutional resistance to change, however, neither of us remains in our former positions.  One of us is now a tenured Professor of Law at the University of Hawaiʻi Richardson School of Law; the other is still at Creighton and still a tenured Professor of Law, but no longer in the School of Law. 

Legal Education is Ripe for Disruption

Legal education is ripe for disruption because the legal profession and law itself are ripe for disruption.  The crisis in legal education reflects an increasing mismatch between the limited services that law and lawyers provide and vast and acute societal needs for legal services. 

In addition, law has become increasingly attenuated from justice in the sense of contributing to the creation of “right relationships” between and among people.  Because law is inaccessible to most individuals, it is irrelevant to them except as they are subjected to bureaucratic regulation by the government.  Law has become a burden rather than a useful tool for people figuring out how to live together.  A significant proportion of students come into law school seeking to work for justice, yet law school and the legal profession too often send the message that justice is irrelevant.

Nontraditional processes that allow for coordination, collaboration, and conflict engagement and resolution have already overtaken courtroom and law office services.[4] Arbitration, mediation, restorative justice, collaborative governance, LegalZoom, negotiated settlements and regulation, and more were once secondary to litigation and other lawyer-dominated processes.  The balance has now tipped, yet the focus of legal education and the legal profession on lawyers obsessively grooms the traditional tail while ignoring the ever-evolving dog.

As a result, legal education is “at a crossroads…legal educators should be talking about an entirely new business model.”[5]  Law professor William Henderson, who analyzes the legal profession and legal education, concurs:  “Legal education and the legal professions are at an inflection point where traditional models of education and practice no longer fit the shifting needs of the market.”[6] In a recent speech on “The Future of Legal Education,” departing Brooklyn Law Dean Nick Allard described change in the profession as “inevitable” and warned that “clinging to the ‘business as usual’ status quo” is not a viable option.[7]  At the same time, Allard characterized the legal profession and legal academia as “always slow and even resistant to adaptation.”[8]

Lawyers need not be the only providers of legal services.  Doctors today work alongside not only nurses but other health care professionals with diverse training and diverse skills; these teams extend the reach of the health care system.  Similarly, with additional legal professionals, the work of lawyers could reach much further than it does at present.  There has been a recent uptick in the number of persons taking the LSAT[9] and applying to JD programs in law schools.[10] While this trend lulls law schools back into comfortable reliance on the JD, a few additional lawyers will not meet the pressing demand for legal services.

The Opportunities and Pitfalls of Disruptive Leadership

When we arrived at Creighton School of Law, one of us in 2007 and the other in 2011, each of us had been faculty members at other law schools.  We saw Creighton’s small scale and personal relationships in Nebraska as creating an ideal environment for innovation and for nimble responses to the documented lack of legal services in both urban and rural parts of the state.  We were energized by the opportunities presented at a small regional private law school with close ties to the local legal community and the state bar.  We were particularly excited by Creighton’s Jesuit mission of service to others and its expressed commitment to social justice endeavors to form graduates and benefit the community.  A new, yet already nationally-recognized program in Negotiation and Conflict Resolution provided in-house expertise in innovative approaches that complement and expand the effectiveness of traditional law.

Within two years, however, a cohort of fellow faculty members, drawn predominantly from the ranks of those with the most seniority, had negatively branded us “reformers” who were seeking to move students away from “real law.” Overall, our relatively mild exercise of disruptive leadership through leadership in strategic planning and assessment, which envisioned a robust Law School response to fundamental shifts in the legal landscape, was met with a level of blowback that neither of us could have imagined.

In the face of this resistance, which escalated into a personal attack and to which a fledgling University administration capitulated, both of us sought and secured other academic appointments.  The newly-hired dean was “invited” to move out of the administrative suite and into an office on faculty row after an unexpected sabbatical year.  The Negotiation and Conflict Resolution Program was transplanted to a Department of Interdisciplinary Studies in the Graduate School and its expertise and vision quarantined from the JD curriculum and students.

Academic Resistance to Change: Tenure, Academic Freedom, and Administrative Disinterest

Though legal education in the abstract may be ripe for disruption, disruptive leadership in a real-world law school setting is a tough and potentially perilous road.  Legal education is closely tied to the legal profession, and as long as lawyers have a monopoly on law, changes in legal education that respond to broader imperatives will face the challenge of not being “real law” because the entry to the legal profession lies exclusively through the straitjacket of the bar exam and admittance to a state bar.  Further, placement of legal education in universities subjects it to academic constraints that dampen potential change initiatives.

We see three characteristics of academia in general—characteristics that are not limited to legal academia—that contributed to resistance to our disruptive leadership and that are likely to ground resistance to disruptive changes in legal education generally.  The first characteristic is tenure.  Academic tenure, intended to protect and encourage open discourse, has the additional effect of protecting entrenched faculty and perpetuating institutional inertia.  The most seasoned and senior engineers at Boeing have less job security than the least productive tenured faculty member at an average college or university.  Tenure gives faculty members who resist change a powerful and easily wielded weapon:  They can choose to “not go gentle into that good night” but “[r]age, rage against the dying of the light.”[11] 

The second characteristic, related to the first, is academic freedom.  The lofty goal of academic freedom is to ensure the free and fair dissemination of views and ideas. But academic freedom can turn from shield to sword. The claim that academic freedom is being infringed can be used to challenge administrative efforts to monitor academic quality through program assessment.[12]   Even more troubling, “academic freedom has been claimed as an excuse for the most abusive and uncollegial behavior—shouting at colleagues, publicly berating students or staff members, defaming supervisors or other university administrators, shirking professional duties.”[13] 

Third, the imperatives of university administration and governing boards focus on raising funds and maintaining tradition rather than on responding innovatively to shifting economic and social dynamics.  University presidents spend a substantial portion if not a majority of their time fundraising,[14] often appealing to alumni,[15] whose views of the school necessarily look backward rather than forward.[16] University presidents and provosts may also lack essential knowledge regarding “research on innovation and their own role in the process”[17] as well as essential leadership skills, especially those related to change and conflict.  Nonprofit board members are accountable by law for fiduciary duties owed to the institution, but these duties are enforced only rarely by the Attorney General of the state in which the organization is chartered.

Law School Exceptionalism: Monopoly and Gender Dominance

The dynamic between university administrators and law schools is especially likely to be inhospitable to necessary changes.  For decades, law schools were cash cows for universities: Large class sizes and minimal hands-on clinical offerings led to law school revenues that supported other academic programs across campuses.[18]   Because of law school financial contributions, university oversight was relatively deferential, and both central office administrators and law faculty grew accustomed to laissez faire management.  Add in accreditation of law schools by the ABA, which until very recently did not even require meaningful assessment of JD programs, and you have a recipe for habits of non-accountability.  Moreover, university administrators may well be cautious about taking on entrenched and tenured law faculty who as lawyers might be expected to be relatively litigious, as we experienced. 

Two additional characteristics of legal education in particular contribute to militant resistance to disruption.  The first is the ABA’s monopoly on both the practice of law and the accreditation of law schools.  According to Professor Henderson, the legal profession is currently challenged by an environment in which “the cost of traditional legal services is going up, access to legal services is going down, the growth rate of law firms is flat, and lawyers serving ordinary people are struggling to earn a living.”[19]   Lawyers, who themselves are JDs and graduated from law schools configured to meet 20th-century needs, are in control of how legal practice is defined and regulated and of setting barriers to entry.  Lawyers wield “unauthorized practice of law” sanctions as a protection against competition despite the fact that much of the law that non-lawyers seek to practice is law that lawyers find tedious and unprofitable.[20]  

The effects of this monopoly are compounded by a second characteristic of law and legal education: a lack of diversity.  Law and legal education today remain highly gendered: Men and traditionally masculine norms permeate the profession and continue to dominate in law schools even as student enrollment approaches gender parity.[21] The two of us began collaborating as institutional leaders at Creighton as members of the School of Law’s Strategic Planning Committee.  Both of us had been elected by the faculty.  One of us (Nick) was Chair; the other (Palma) was a member who had served on the Committee for a number of years.  It was evident that we enjoyed working together and that we were a strong team.  After one contentious strategic planning meeting, a very senior (white male) member of the faculty made a point of warning Nick (via another colleague) that Palma was “emasculating” him.  A group that has been dominated by a single gender may resist a shift in gender dynamics as well as changes in practice initiated by more diverse decisionmakers.[22]

The Non-Ethics of Non-Disruption

Legal education is ripe for disruption, and disruptive leaders can challenge conceptual mindsets constructively, using technology and data analytics to map changing landscapes and reframe conversations about the future.[23]  In a changing world, adaptation allows organizations to not just hang on but to thrive. 

The casualties of law schools hanging on to the familiar are the students—the very people an educational institution exists to serve.  Is it ethical for law schools to mindlessly continue to train students for a profession that is shifting under everyone’s feet?  Is it ethical for the legal profession to wring its hands about “access to justice” while maintaining its protectionist posture?  Is it ethical for university administrators to pocket law student tuition dollars knowing that the debt those students incur is buying them an education that is unlikely to render them financially secure?  These are the unwelcome questions that disrupters in legal education should be raising – and that law and the legal profession should join in addressing.


* Director of Faculty Research and Professor of Law, University of Hawaiʻi Richardson School of Law, B.S.B.A. Saint Louis University (1989), J.D. University of Missouri (1992), LL.M. Georgetown University Law Center (1996); Professor of Law and Director, 2040 Initiative, Negotiation and Conflict Resolution Program, Department of Interdisciplinary Studies, Creighton University, B.S. Stanford University (1978); J.D. Stanford Law School (1984); LL.M. Georgetown University Law Center (2006).  We thank colleagues, past and present, who reviewed and commented on this essay.

[1] Sam Walker, One Leader Sent Boeing Into a Hurricane; Landing It Was the Next Guy’s Job,  The Wall St. J. (2018) https://www.wsj.com/articles/one-leader-sent-boeing-into-a-hurricane-landing-it-was-the-next-guys-job-1524821400.

[2] Id.

[3] Id.

[4] See, e.g., Oralandar Brand-Williams, More disputes in Mich. settled through mediation, The Detroit News (2018), https://www.detroitnews.com/story/news/local/wayne-county/2018/03/29/mediation/33406027/; and https://thelawdictionary.org/article/what-percentage-of-lawsuits-settle-before-trial-what-are-some-statistics-on-personal-injury-settlements/.

[5] Huffman, supra note 4.

[6] Bill Henderson, What signal are legal employers sending to legal education?, Legal Evolution (2018), https://www.legalevolution.org/category/legal-education/.

[7] Paul Caron, Allard: The Future of Legal Education, TaxProfBlog (June 20, 2018), http://taxprof.typepad.com/taxprof_blog/2018/06/allard-the-future-of-the-legal-profession.html.

[8] Id.

[9] Debra Cassens Weiss, Increase in LSAT test takers seen as evidence of ‘Trump bump,’ ABA Journal (2017),http://www.abajournal.com/news/article/increase_in_lsat_test_takers_is_seen_as_evidence_of_trump_bump.

[10] Karen Sloan, Number of Law School Applicants Surges, Especially Among High Scorers, Law.com (2018), https://www.law.com/2018/07/30/number-of-law-school-applicants-surges-especially-among-high-scorers/.

[11]Dylan Thomas, https://www.poets.org/poetsorg/poem/do-not-go-gentle-good-night.

[12] Timothy Reese Cain, Assessment and Academic Freedom: In Concert, not Conflict (Nov. 2014), http://www.learningoutcomesassessment.org/documents/OP2211-17-14.pdf.

[13] Gary Olson, The Limits of Academic Freedom, Chron.  of Higher Educ. (2009).

[14] Mitchell Wellman, 3 things college presidents spend all their time doing, USA Today (2017), http://college.usatoday.com/2017/01/27/3-things-college-presidents-spend-all-their-time-doing/.

[15] Rick Seltzer, Giving to Colleges Rises by 6.3%, Inside Higher Ed (2018), https://www.insidehighered.com/news/2018/02/06/personal-giving-pushes-donations-colleges-and-universities-new-level-2017.

[16] Robert M. Diamond, Why Colleges Are So Hard to Change, Inside Higher Ed (2006), https://www.insidehighered.com/views/2006/09/08/why-colleges-are-so-hard-change.

[17] Id.

[18] Megan McArdle, Law School Enrollments are Plummeting. What Happens Next?, Daily Beast (2013), https://www.thedailybeast.com/law-school-enrollments-are-plummeting-what-happens-next.

[19] William D. Henderson, Legal Market Landscape Report (July 2018), https://taxprof.typepad.com/files/henderson.pdf.

[20] See, e.g., Roy Strom, California Bar to Consider Changes to Nonlawyer Ownership Rules, The Am. Law. (2018),https://www.law.com/americanlawyer/2018/07/23/california-bar-to-consider-changes-to-non-lawyer-ownership-rules/.

[21]See, e.g., American Bar Association Commission on Women in the Profession, A Current Glance at Women in the Law (January 2017) (legal profession), https://www.americanbar.org/content/dam/aba/administrative/women/a-current-glance-at-women-in-the-law-jan-2018.authcheckdam.pdf; Dara Purvis, Female Law Students, Gendered Self-Evaluation, and the Promise of Positive Psychology, 2012 Mich. St. L. Rev. 1693 (legal education).

[22] See generally, Gabriella Gutiérrez y Muhs, et al., Presumed Incompetent (2012).

[23]Disruptive Leadership: A Recipe for Success, The Wall St. J. (2018), https://deloitte.wsj.com/cio/2018/07/09/disruptive-leadership-a-recipe-for-success/.

The Kids Are Alright

Regardless of your position on gun regulation, the work of the students of Marjory Stoneman Douglas High School in Parkland, the latest victims of yet another act of senseless gun violence, has to be inspiring, if not a little humbling.  They are putting adults to shame, literally and figuratively.  Their eloquence, passion, and even their social media smarts, are creating a moment of reckoning in this country.  The so-called “adults in the room” cannot hold a candle to these students’ capacity to mobilize, empathize, reach across difference, and move a nation to action.

Many seem surprised by this. As an educator who teaches many millennial law students, I am not.  I see my students accomplish amazing things, and am constantly inspired by their intelligence, willingness to roll up their sleeves, and go to work.  Moreover, as a former law student myself (although, admittedly, nearly three decades ago), I saw students work together in the face of resistance, and the stories I have read about the work of the Parkland students and the thousands more who have taken up this fight resonate and are reminiscent of work that has occurred and will continue to occur, carried out by eager and passionate students who won’t take no for an answer and continue to “Call BS” when necessary.

What we are seeing in action is perhaps the greatest student project ever undertaken.  From the outside looking in, it looks like the students are working collaboratively and sharing the spotlight among themselves and with others outside their immediate circle.  They appear incredibly supportive of one another, are pressing ahead in support of a cause larger than themselves though grounded in their personal experiences of tragedy, and are reaching out to others to build bridges across geographies and communities. They are accomplishing slow and steady wins that help to build momentum, sustain their energy, and create confidence to take on the next challenge. In short, they are doing all of the things that a group needs to do in order to produce meaningful change.

In academia, many fear the group project.  But it is how the world functions, and how humans have been operating for millennia.  In fact, our capacity for cooperation is probably what makes us human.

Such group activity can also can have its downsides, and not just in terms of the free rider who benefits from the work of others.  Rather groups can take on a life of their own, and distorted and harmful collective understandings can emerge as a result.  In the wake of the collective tragedies of Nazism and Stalinism, “groupthink” became a source of serious academic study. But on the brink of World War II, Hungarian sociologist Karl Mannheim wrote about how industrialization and urbanization was impacting our collective capacity for this sort of groupthink as follows: “life among the masses of a large town tends to make people much more subject to suggestion, uncontrolled outbursts of impulses and psychic regressions than those who are organically integrated and held firm in the smaller type of groups.  Thus industrialized mass society tends to produce the most self-contradictory behavior not only in society but also in the personal life of the individual.”

The students of Parkland and the many others who are emerging into the broader spotlight are organizing themselves at the local level, school-by-school and community-by-community, and helping the rest of us see the disastrous and ruinous groupthink that has captured the collective imagination around gun control.  And they are doing it in remarkable ways, sustaining their collective energy in the wake of tragedy.

Recent research into how groups can work effectively, carried out by Google in what it called “Project Aristotle,” identified a series of common components in effective groups, including the following:

  • Dependability: getting things done on time and accurately;
  • Structure and Clarity: having clear goals and clear roles;
  • Meaning: the work is personally important to the team members;
  • Impact: team members think their work matters and will bring about change;
  • Psychological Safety: team members feel safe to take risks and be vulnerable in front of others.

From the outside looking in, the Parkland students and the many others who have been working for meaningful responses to gun violence who have gained greater attention because of the Parkland tragedy, appear to meet these criteria for successful groups.  They pulled off hundreds of simultaneous rallies across the country in a matter of weeks.  They could not have done so had they not had some structure and clarity to their work, did not see the importance of their work, and did not derive meaning from it.  And it would appear that they are incredibly supportive of each other, both within their own groups and in relation to each other.  For example, during Saturday’s march in Washington, when a student, Samantha Fuentes, who was wounded in Parkland, was addressing the crowd, she paused a moment, turned away from the lectern, and vomited.  Other students rushed to her side, urged her to keep going.  She emerged from being doubled over to proclaim: “I just threw up on international television and it feels great!”

The students leading this campaign should be an inspiration to everyone who wants to bring about change, and can help us understand how we can do it collectively, because it is in such group efforts that real change is possible. I have written about my own experience as a law student working on a case, brought by a law school clinic, that challenged the U.S. government’s treatment of Haitian refugees in the early 1990s, a case which ultimately went to the Supreme Court.  In ways that echo the work of the Parkland students, but by no measure on the same scale or with the same impact, the team effort there, led by students, invoked many of these themes as well, and can help show how law schools can harness the collective capacities law students have for bringing about change.

In an oft-quoted phrase, Margaret Mead said to “never doubt that a small group of thoughtful, committed citizens can change the world; indeed, it’s the only thing that ever has.”  How such groups should actually go about doing that is another question, and the Parkland students and the thousands of others who have been inspired by their work, or who have finally gotten the attention they deserve, may just show us the way.

Jumpstart Outline: Ideas to Help You Make a Plan to Teach “Public Citizen” Lawyering in Any Law School Class

Best Practices for Legal Education and Building on Best Practices urge legal educators to help students develop their professional identities. One aspect of a lawyer’s professional identity is performing the role of “public citizen.” The Preamble of the professional conduct rules in most jurisdictions explains that lawyers are “public citizen having special responsibility for the quality of justice.”

We can help students begin to understand what it means to be a “public citizen” if we address the issue in concrete ways across the curriculum. The following outline provides some ideas for integrating public citizen lawyering into your course.  This is a long list, but there should be an idea or two that will work for your course, whatever its focus.

Use (or Adapt) Existing Course Materials, Exercises, and Activities to Make Explicit Connections Between the Course and the Lawyer’s Work as a Public Citizen

  • Find the Public Citizen Lawyers in Your Current Textbook. Are there lawyers in your textbook that are fulfilling the public citizen role? Discuss them when you see them.
  • Use Course Materials to Help Students Identify and Discuss Injustice. Help students become justice-seeking lawyers by helping them identify injustice. In the chapter Social Justice Across the Curriculum (in Building on Best Practices), Susan Bryant identifies seven questions that can be used in any class to help students explore injustice.
  • Discuss Needs for Law Reform in the Subject Area of the Course. When you encounter areas of needed law reform in course material, discuss how lawyers can play a part in making that change.
  • Use Writing Assignments to Give Students Experience Advocating for Law Reform. For writing assignments that require students to recommend or draft proposed changes to the law, make the explicit connection that this one way that lawyers fulfill the public citizen role: they advocate for improvement in the law. Provide them avenues to publish, discuss, and otherwise publicize their work.
  • Lawyer Speakers Should Be Asked to Discuss How they Serve. If you ordinarily invite lawyers to class to talk about course related topics, prompt them to talk about the things they do to serve the public and the legal profession.
  • Integrate Social Justice Issues Into a Course Exercise. Is there an exercise you currently use to develop knowledge or a skill in which you can introduce an issue of social justice? For thoughts on designing and debriefing that exercise, see Susan Bryant’s chapter Social Justice Across the Curriculum in Building on Best Practices: Transforming Legal Education in a Changing World, at pp. 364-66
  • Prompt “Public Citizen” Discussion in Journaling Exercises. Prompt students to reflect upon public citizen issues in their course journals. What are areas where they see a need for law reform? What could they do to address those issues now and in practice? Suggest that students talk to lawyers (with whom they work) about how they serve the public and the profession. Ask the student to reflect on those discussions in their journal.

Create New Activities and Exercises that Integrate Course Material and the Lawyer’s Role as Public Citizen

  • Prompt Students to Create a Professional Development Plan.Particularly in classes where students may have common career goals (such as in an externship or capstone class), prompt students to write about their values, interests, and strengths, and to make a plan for the future, including a plan for service.
  • Integrate Pro Bono or Service Learning Into the Class. Find an opportunity for the class to represent a client or clients or serve a community organization or population that is connected to the subject matter of the class.
  • Create a Law Reform Activity for the Class. Engage in action as a class to reform the law in an area of need connected to course material. For suggestions see Mae Quinn’s article Teaching Public Citizen Lawyering: From Aspiration to Inspiration, 8 Seattle J. for Soc. Just. 661 (2010).
  • Require Students to Interview a Lawyer. The interview should cover course-related material as well as the lawyer’s service to the poor, the public, and the profession.
  • Organize a Book Club. Identify a non-fiction law-related book with a connection to your course material and that provides a springboard for discussing the lawyer as public citizen. A great book about pro bono service and its impact on both client and lawyer is William H Colby’s Long Goodbye, The Deaths of Nancy Cruzan. A book that prompts lawyers to think about the ingredients of a happy life – including pro bono work and “serving a larger social purpose”– is Nancy Levit and Douglas Linder’s book The Happy Lawyer: Making a Good Life in the Law.

Share Information about Yourself as a Public Citizen

  • Be Inspiring. Tell an inspiring story about what another lawyer’s service meant to you or about what your service may have meant to someone else – and how that made you feel.
  • Talk About Yourself as a New Lawyer. Tell stories about your experiences as a new lawyer attempting to fulfill the public citizen role. What did you learn from those activities? Did you have mentors that inspired or encouraged you?
  • Note the Times When You Struggled. Share the times in your career when you have struggled with balancing the demands of practice, your personal life, and serving the public. What worked for you and where do you continue to struggle?
  • Incorporate Examples Connected to Course Subject Matter. Weave in examples of what you currently do to serve the public and the profession and explain why you serve.
  • Revise Your Faculty Webpage to Emphasize Your Public Citizen Work. Include your pro bono service activities, service to the profession (committees, CLEs, etc), and board service on your law school profile – not just your C.V.
  • Promote Your Service to the Public and Profession on Social Media. Alert your law school communications person to stories about your service activities so that students and alumni can learn about what you do through law school social media. Also, promote these same things in your own use of social media.

Fulfill the Public Citizen Role with Students Outside of the Classroom (Not Necessarily Connected to a Course)

  • Provide Access to Justice. Participate with students in organized pro bono events or service activities.
  • Improve the Law. Enlist students to help you prepare to testify or do research about a suggested change in the law – and bring the student along when possible.
  • Serve the Profession. Ask students to help you with a CLE – from preparation to attending and presenting with you. Or invite students to participate in a bar committee or bar event with you.
  • Identify a Need and Fill It. Work with student organizations you advise to identify a group with interests related to the organization. Find out their needs and make a plan to partner with them.

 

Forbes article focusing on law schools, competencies and skills development

Earlier this week, Forbes contributor Mark A. Cohen discussed what he calls “the interdependency — and misalignment —   of law school stakeholders.”  Cohen refers to a comment in a recent speech by Mark Smolik, the general counsel of DHL Supply Chain Americas, that  “he would no longer subsidize on-the-job-training of law firm associates.”  According to Cohen, Smolick’s remarks are an

indictment of the Academy for its failure to produce practice-ready graduates with required skillsets and a swipe at law firms for their failure to more fully invest in associate training to drive client value.

Cohen is urging today’s law students to look to the marketplace for “efficient, accessible, cost-effective, and just-in-time learning tools available to fill knowledge gaps and to teach new skills.” He boasts about one product that produces “high quality videos” and uses “flipped classrooms.”

I don’t disagree that law schools need to transform faster, provide more skill building,  emphasize the business context in which lawyers are hired to help, and prepare law students for the team realities of today and tomorrow’s economy.  And I appreciate Cohen’s raising this issue and inviting discussion. But his claim that only a “handful” of law schools are savvy on these issues – or as he put it have “yet to read the memo” – made my Irish blood boil. Maybe it is because it is the end of the week and I’m just tired? Maybe it is because I  just recently (September 13th) hosted yet another Flipping (every pun intended) workshop at our school showcasing all the great work being done by my colleagues in flipping their classroom? Maybe it is because if Cohen googled law schools and flipping classrooms,  he would have found Michele Pistone’s fabulous LegalED information? Maybe it is because he could have found this blogsite pretty high up on that google search and clicked on a number of posts such as here and here  and here and here and here  and here ?  Maybe it is because  nobody is noticing the work of folks like my faculty colleague Antony Haynes on innovative online opportunities?

I invite you to read the article, see what you think and tell us on this blog about what Cohen missed happening at your school!

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