Wegner’s Thoughts on Legal Education Reform: Legal Education’s Wicked Problems

At long last, I’ve completed (and Rutgers Law Review as published) an expanded essay on my own thoughts regarding the Carnegie Foundation’s study of legal education.  The essay is entitled “Reframing Legal Education’s Wicked Problems” and is available at SSRN (http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1533778) and on the Rutgers Law Review website (http://pegasus.rutgers.edu/~review/vol61n4.php).  I’ve tried to facilitate further discussion of several facets of the Carnegie study work (particularly by incorporating more excerpts of interviews with faculty and students about what is meant by “thinking like a lawyer” and how the related skills are taught).  I’m also happy to be able to contribute at some length to thinking about why upper division curriculum reform is so difficult, why it is so needed, and how it might be approached, particularly by taking into account issues relating to personal and professional identity that face students of this generation.   An abstract follows. –Judith Wegner (judith_wegner@unc.edu)

Abstract:

The essay, by one of the authors of Educating Lawyers (the “Carnegie Report”) offers fresh insights as to why legal education reform is so difficult, drawing upon the theory of “wicked problems” increasingly used in public policy, engineering and a variety of other fields. It demonstrates the application of that theory with reference to the oft-told tale of Rumpelstiltskin, and draws from that tale key lessons that can be used by those seeking to create a new prospectus for legal education in coming years. It then illuminates four “wicked problems: that have plagued legal education for years: how responsibility should be allocated for lawyer preparation; why change in content alone does not result in enduring improvements in legal education; whether “thinking like a lawyer” has a continuing place in legal education; and how the upper division can be fruitfully improved. In illuminating these problems, it also offers suggestions for how they might be approached and resolved.

After providing background on the characteristics of “wicked problems” and how they can best be approached, the essay focuses on “commonplaces” that underlie professional work and accordingly should drive professional education (including legal education), thereby providing a fresh framework for actionable steps to improve legal education and the practice of law.It next S discusses the need to attend both to visible and invisible dimensions of problems in order to shape meaningful solutions and explains the importance of often unrecognized dynamics of learning and teaching as major forces that play crucial roles in legal education and curriculum reform.

The essay then discusses the power of naming, offering an in-depth look at the nuances of “thinking like a lawyer” as understood by students and faculty members interviewed at sixteen diverse law schools in connection with the site visits that informed the Carnegie Report. It stresses the specific ways that first year case-dialogue instruction forces students to deal with uncertainty, one of the critical dimensions of professional practice, and unpacks the notion of “thinking like a lawyer” in ways that should prove illuminating for students and helpful for faculty members who seek to help students understand the resulting changes in epistemology that are so central to the first year of law school. It also considers the nature of the “case-dialogue method” and explains the ways in which that classic teaching technique plays a critical role in building students‘ abilities to think analytically.

Finally, the essay considers one of legal education‘s most intransigent “wicked problems”: the upper division curriculum. Using insights from the theory of “wicked problems,”The essay endeavors to explain why upper division curriculum reform is so difficult. It then offers four strategies for “renegotiating” existing assumptions and practices in order to improve the upper division curriculum. These strategies (including purposeful redesign on the large scale, rethinking content, rethinking pedagogy, and re-balancing teaching and learning responsibilities) each of which are very likely need to be used in concert in order for meaningful improvements to occur. In particular, this portion of the essay incorporates insights from educational psychology and work on professional identity development in graduate students to stress the ways in which effective advanced curricular innovations should attend to the challenges faced by the current generation of students who, much more than those in past decades, face challenges in navigating changes in personal identity at the same time they confront the need to develop a sense of professional identity before leaving law school.

Incorporating Clinical Experiences in Classes

I’ve been thinking about ways of incorporating clinical experiences in doctrinal classes. The importance of this practice has not only been demonstrated by our Best Practices authors and the Carnegie Foundation, but especially by our own observations of our students as they enter clinical courses. To my mind it’s now obvious that students sitting in doctrinal classrooms for 1-2 years before getting involved in a clinical setting is not just unproductive, but counter-productive to their learning how to “be” lawyers. The way it is now, those who do enroll in clinics have little context for clients’ real legal problems, scant sense of what it means to gather the facts, and little notion as to how those facts fit with in the relevant law. Given this, I’ve recently suggested/mentioned to faculty at my school that they consider working on a “real” case in their doctrinal classes.  The response was underwhelming. There was concern about additional work.

Has anyone out there been successful in encouraging non-clinical faculty to work with a group of students on direct case representation?  If so, can you offer some suggestions as to how it might be made to work, especially how it might be accepted as a productive and enjoyable way to teach?
formative assessment.

TERMINOLOGY AND MEANING: Experiential & Learning & Context-based & Lawyering Role & Structured Supervsion &…..

I think we are at a point in the legal education reform movement, where terminology to identify the  complementary but distinguishable kinds of “Experiences” and kinds of “Learning” seems important.(Deborah Maranville, Russell Engler, Sue Kay and I are working on a piece which analyzes some of this….)

For purposes of the lists some of us are in the process of creating to identify schools which are mandating experiential learning, I think it would be helpful to discuss our terminology.   In my mind, I divide or group the categories by four (4)  factors (with sub-factors within): Continue reading

Collaboration Experiment: Letting the Students Teach

In response to several inquiries of Albany Law School’s Family Violence Litigation Clinic students concerning tax issues related to separation and divorce, we decided to engage in an experiment that turned out to be a huge success.   The Low Income Taxpayer Clinic (“LITC”) and Family Violence Litigation Clinic (“FVLC”) students were asked to prepare and present an interactive class to share the knowledge that they had gained throughout the semester in a manner targeted to the unique issues faced by each Clinic. We followed a Best Practices approach of integrating substantive doctrine, skills, theory and social science all in one class and the feedback from the students was very positive. Continue reading

Play, Creativity, Improvisation

Why are  play, improvisation, and creativity showing up in so many different conferences and publications these days?  And what do they have to do with best practices in legal education?

The 2008 AALS Conference in New York included an Open Source presentation on play, and a Clinical Section presentation on improvisation.  The 2008 Clinical Conference in Tucson also included a session on improvisation (I organized that one and can vouch that we sent in our proposal before  learning that the same topic would be addressed in New York).

Master teacher Gerry Hess wrote about asking his students do  creative representations of the conceptual framework for personal jurisdiction years ago  (I stole his idea for a “class participation” option and built on it twice.  By also asking them to integrate the pieces of civil procedure into a creative  “big picture” project.  And by giving an in class group work assignment to draw the “stream of commerce.”)

And,  of course, interest in storytelling is high (perhaps a follow-up to the focus on narrative in the late 80’s and 90’s, including the LawStories series, and the Conferences on Storytelling.

I pondered the “why now” and “best practices?” questions when I saw the Journal of Legal Education scholarly article follow-up to the Open Source play presentation.  http://kotplow.typepad.com/clinicians_with_not_enoug/2009/03/ssrn-.html.

Is the why just aging law professors?   Always-were- creative types who now feel the confidence to be a little more “out there”?   Others starting to develop that side of their brains late in life?   Or another result of the tightening market for Ph.D’s and K-12 teachers in the 70’s that brought people into law who otherwise might have landed elsewhere?

As to “best practices” — presumably active learning necessarily means engaging both hemispheres of the brain.  If we want to “Teach the Whole Class” (to crib the title of an excellent Institute for Law Teaching video), surely we need to teach to learning styles that include the kinesthetic  — maybe manipulating play doh, as one of my married-with-children law students did for her personal jurisdiction conceptual framework?  And good legal work and good teaching require some ability to improvise in response to new situations.

I’m curious how many other such efforts around play and improvisation I’ve missed.  Am I right that these issues are “in the air”?

Collaborative Learning and Teams

The value of active, collaborative learning is a key “best practices” theme.  And it overlaps with a major theme we heard from employer representatives in a series of listening sessions my law school held a few years ago.  Public interest, government,  firms  — they all wanted our graduates to know how to work in teams and manage complex projects.

Law schools have traditionally given students few opportunities to work in teams.  And even the few opportunities available –moot court or clinic partnerships– typically haven’t come with instruction on how to work well in teams.  With the help of our wonderful reference staff — a shout out to Mary Whisner, just awarded the UW’s Distinguished Librarian award —  I’ve been trolling for resources for instruction on teamwork.  So thought I’d share a few finds:

MIT’s Teaching and Learning Laboratory has several useful handouts “developed for an undergraduate course in professional communication in which students work together in teams of three or four on semester-long projects.”

See http://web.mit.edu/tll/teaching-materials/teamwork/index.html

Working in teams is much more common in business schools and there’s a literature on it, including:

Hansen, Randall S.,Benefits and Problems With Student Teams: Suggestions for Improving Team Projects. Journal of Education for Business; Sep/Oct2006, Vol. 82 Issue 1, p11-19

Vik, Gretchen N., Doing More to Teach Teamwork Than Telling Students to Sink or Swim., Business Communication Quarterly, Vol. 6, Issue 4, pp. 112-119 , Dec. 2001

And, of course,  it’s a big item in the business literature.

Polzer, Jeffrey T, Making Diverse Teams Click. Harvard Business Review; Jul-Aug2008, Vol. 86 Issue 7/8, p20-21

Cultural Knowledge, Intercultural Communication and Self Awareness

I have posted several blogs about ideas involving intercultural communication, cultural knowlege and self awareness.    At the risk of engaging in shameless self-promotion, I would like to announce that my article on these issues just came out as part of the Wash U. Symposium on “Emerging Directions in Clinical Legal Education” ( I know many call these ideas “cultural competence”, but if you read my article you will know why I eschew that terminology…) Continue reading

First Year Practicum Course

My colleague Jenny Moore permitted me to post this course description for Practicum.  She, Alfred Mathewson and  Sergio Pareja are each teaching one section of First Year Contracts.    The Practicum is a one credit course connected to  Contracts.  Here is her description: 

University of New Mexico School of Law Practicum course (Fall 2008)   

 

OVERVIEW:  The goal of the first year year Practicum is to give our students a chance to begin to develop their practical lawyering skills as well as their ethical and professional sensibilities alongside the analytical skills they are honing in their doctrinal courses.  We chose to link Practicum to Contracts, one of our three first semester doctrinal courses, so that we could develop hypothetical exercises that built upon a particular substantive law foundation, and so that three professors could collaborate closely in teaching the course.  Thus we created a “paper client,” Elaine Lobato, who is involved in an employment contract dispute, and we generated various practice-related exercises designed to help students think in practical ways about client representation. 

 

    MOORE section (please note that the other sections incorporated some of these elements as well, or generated their own exercises and assignments):

 

    This section of Practicum regularly broke into small groups, either two groups of 20 students, or three groups of 13.  These groups were led by the instructor, her 2L teaching assistant and invited guest facilitators, including other faculty and staff members.

 

    Hypothetical exercises:

 

    1.  The first exercise was a mock interview of the client, Elaine Lobato (played by a 3L student actor) by her attorney, Atticus Finch (a 2L actor).  Our Practicum students observed the interview, and then were given the opportunity to ask the client additional questions to help draw out the factual basis for her potential claim.  This first exercise focused on the importance of building a trust relationship with the client, as well as thorough fact development. 

    2.  Second, the students were asked to draft a letter to Ms. Lobato, as her potential attorney, offering to represent her and clearly defining the scope of representation.  This second exercise focused on the need to clearly define the issues and the role that the attorney is taking on, whether initial research, negotiations, filing a law suit, defense against a particular law suit or law suits, etc. 

    3.  The third assignment asked the students to draft a letter from Ms. Lobato to the local Board of Education, in which she sought to accept an offer of employment.  This third exercise focused on the importance of careful drafting, to ensure that the various elements of an agreement are present, including essential terms.

    4.  The fourth assignment then required the students to analyze Ms. Lobato’s letter to the Board of Education and other related communications in terms of the validity of the writings under the Statute of Frauds.  This exercise was designed to help students apply common law and statutory requirements to a particular set of facts, and to develop creative legal strategies for seeking a particular outcome.

 

    In addition to these four skills-based exercises, this year’s Practicum gave our students the opportunity to attend presentations by lawyers working in various fields, and to ask them questions about their career experiences.  One attorney talked about the case of Delgado v. Phelps Dodge, a wrongful death case that she ultimately brought to the New Mexico Supreme Court, which served to narrow the scope of employer immunity from tort liability for workplace injury.  Another attorney will speak with our students about his commercial and tort-related practice, encompassing transactional work, as well as the defense of catastrophic injury and medical malpractice claims.  Finally, our students attended a lecture by Sian Elias, Chief Justice of the New Zealand Supreme Court, who spoke about the rights of indigenous people from a comparative law perspective.  Her lecture was of considerable relevance to our students interested in concentrating in the field of Indian Law as well as those whose New Mexico practice will require an understanding of the interrelationships between Indian law, state law, federal law and regional/international law.

 

    Finally, Practicum has created several opportunities for students to think about the practice of law in a broader human context.  One of the sections developed a mini “Law and Literature” unit, in which students selected a work of fiction or non-fiction grappling with justice issues in a particular historical or cultural setting.  Students selected among three books — A Lesson Before Dying, by Ernest Gaines, looking at issues of race and criminal justice; The Welsh Girl, by Peter Ho Davies, revolving around a German POW camp in a Welsh town during the Second World War; and Benjamin Cardozo’s Nature of the Judicial Process, reflecting on the historical evolution of legal precedent.  Before the semester is out, our students will have the opportunity to reflect on their own career goals, and the ways in which they hope to engage their values in the practice of law. 

 

 

Best Practices and Math for Lawyers

 I have been getting some feedback from members of the bar that recent graduates are not as savvy about math and accounting as they have been in the past.  I was assured it was not just UNM graduates, but it made me think about the recommendation in Best Practices to prepare students for the practice of law  and that law schools should develop a curriculum relevant to that goal.   HMMM…math is pretty important to the practice of law…and I teach Family Law, which involves a LOT of math…in reviewing and presenting budgets, in allocating property, in figuring out pension divisions, in calculating child support and alimony.  I realized that I don’t specifically list accuracy in math calculations and understanding of the mathematical principles underlying the legal issues on my list of learning objectives on my syllabus.   That is going to change… 

This semester, I told my students that the final examination will have at least one problem requiring substantial mathematical calculations.  They may take their calculator into the exam (otherwise it is closed book).    And, I am spending a little more time giving them math related problems (e.g. pension allocation, child support, etc) to work on as homework or in small group and I am spending  a little more class time discussing them.   I look forward to seeing how they do on the exam!

Bar Passage and Best Practices for Legal Education

My colleague Alfred Mathewson always makes me think.  He came back from the American Bar Association  Bar Exam Passage conference last week.  He had attended the Crossroads conference at the University of Washington too.  He had some interesting observations.  He said there were several schools that were creating “tracks” for students in the lower end of the class rank to focus them very specifically on legal analysis skills.  Continue reading

Almost No Correlation between Scholarship Production and Teaching Effectiveness

I hesitated to post this now because I really want to see some creative feedback on the previous post from Carolyn Grose! Please DO RESPOND to Carolyn’s excellent post.   

However, this was simply TOO good to wait to share – here’s some news from the TAXLAW BLOG that confirms what Best Practices has been “preaching”! Continue reading

Queries from the Best Practices Implementation Committee

We had a fantastic time in Seattle a few weeks ago, and I for one felt reinvigorated and excited about this great project we’re all involved in — you know, the one about totally reforming legal education? What we didn’t get either from the Best Practices Meets Reality workshop (see my earlier post on September 9th) was much discussion about the following questions.  So I’d be very interested in seeing if we can generate some dialogue here, and then maybe take it on the road at the next round of conferences. 

Let’s brainstorm and generate concrete ideas about the following:

  • A Best Practices checklist or other instrument for implementing curricular and other law school reform;
  • A Best Practices checklist or other instrument for self- and external assessment of individual courses, teaching methods and law school curricula;
  • Potential obstacles to using Best Practices for change or assessment;
  • How to actively engage law students (and perhaps, where feasible, graduate students in education) in selection of educational objectives, development of creative and sophisticated teaching techniques, and assessment of teaching choices and curricular reforms;
  • The feasibility and desirability of a “Commitment to Best Practices for Legal Education” policy statement for potential adoption by law schools;
  • The feasibility and desirability of developing “Best Practices implementation consultants” to engage with law school faculty and administrators;
  • The feasibility and desirability of developing honors, recognition, and/or awards for legal educators and law schools committed to and actively engaged in implementation of Best Practices strategies and techniques (e.g. a Best Practices Certification Program);
  • How to use – and teach others not at the workshop to use — the Best Practices Blog to learn about innovative legal education, including the experiences of law schools that are using elements of Best Practices;
  • Other vehicles to publicize examples of successful implementation of Best Practices concepts and make available detailed information about outcomes.

What do you all think?

 

Carolyn Grose

Passion, Context, Redux (Part 1)

A fun aspect of getting a few gray hairs: we’re around long enough to see our ideas come to fruition.   Some years ago I wrote about the important role of experiential learning in providing context for law students.  Continue reading

More Conversations on Professional Identity

For a number of years I’ve taught a course on Access to Justice that satisfied the externship classroom component requirement. Because we are restructuring our externship program, when I taught the class spring quarter the students who were taking the class only to satisfy the requirement were moved to our new externship course.

Not surprisingly, the class drew a number of students who are planning public interest careers. But it also drew others who have made the decision to work at a firm, but want to be engaged in pro bono public service work. Many of the students were especially drawn to the portions of the course in which we talked about the law school experience and the way it shapes students career aspirations.

As I noted in my post on July 10 I’ve been struck by how hungry many our students seem to be for such conversations. Hungry for Carnegie’s “apprenticeship of professional formation,”  I think.  Both ideas and action on how to weave these issues into the curriculum still seem woefully undeveloped.

Note: For the last several iterations of the course, I’ve used parts of Mahoney, Calmore, and Wildman, Social Justice: Professional Communities and Law, including Chapter 4 on Personal Identity, Role, and Values: Becoming a Lawyer, Staying Yourself. I highly recommend it.

Law Professors and Context-Based Education: The Clinic and the Classroom

New Mexico’s clinical model is quite unusual as far as clinic models go.  All of us who teach in the clinic also teach in the classroom and many faculty members rotate through the clinic.  While the model has its challenges, we think the benefits far outweigh those challenges.  One huge benefit is that faculty members are in touch with how the law actually affects people’s lives, particularly the lives of poor people.  In Best Practices, this is called “context-based education”, ( p. 141.)  

 

My colleague, Nathalie Martin, has blogged about some of her clinical experiences on the Credit Slips blog.   You will notice that the cases and situations she describes involve clients of the clinic and the way the credit industry seems to target poor, uneducated people.    Professor Martin does not just read about these issues.  She lives them!   Here are links to some of  her blogs:

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