Best Practices for Legal Education

Chief Justice Roberts’ scathing dismissal of the value of legal scholarship evoked a far greater outpouring of comments, mostly fervently agreeing with the Chief Justice, than I’ve ever seen in prior ABA Journal articles about law schools. Many commentators directly connect the irrelevance of most law review articles with the poor job they say law schools do of preparing their graduates for practice. A few law professors respond with intense defenses of academic scholarship and assertions about the educational effectiveness of law schools. It’s a rich mine for this perennial debate. The original article and all comments — there are many more — can be found at http://www.abajournal.com/news/article/law_prof_responds_after_chief_justice_roberts_disses_legal_scholarship/?utm_source=maestro&utm_medium=email&utm_campaign=weekly_email .

Law Prof Responds After Chief Justice Roberts Disses Legal Scholarship

Posted Jul 7, 2011 5:29 AM CDT
By Debra Cassens Weiss

Chief Justice John G. Roberts Jr. has raised hackles with his suggestion that there is a disconnect between the scholarship of law professors and the work of practitioners.
Roberts knocked law professors and their work while answering questions at the 4th Circuit Judicial Conference in White Sulphur Springs, W. Va., at the end of June.

The American Constitution Society blog has Roberts’ quote: “Pick up a copy of any law review that you see, and the first article is likely to be, you know, the influence of Immanuel Kant on evidentiary approaches in 18th Century Bulgaria, or something, which I’m sure was of great interest to the academic that wrote it, but isn’t of much help to the bar.” C SPAN posted the interview.

University of Maryland law professor Sherrilyn Ifill responded in a blog post at Concurring Opinions. “Legal scholars will on occasion indeed take up Kant (and there’s no shame in that),” she wrote, “but more often than not, published law review articles offer muscular critiques of contemporary legal doctrine, alternative approaches to solving complex legal questions, and reflect a deep concern with the practical effect of legal decision-making on how law develops in the courtroom.”

Comments
1.
Atty
Jul 7, 2011 6:49 AM CDT
In my practice, I don’t have time to read dense 70 page articles concerning “muscular critiques of contemporary legal doctrine.”
2.
Adjunct.
Jul 7, 2011 7:02 AM CDT
The Chief is right on this. What’s even worse than the lack of relevancy of the academy to law (ie the practice of law) is the “syndication” of UK/US law programs around Europe and elsewhere, replete with European civil lawyers not trained in common law purporting to teach undergrads (ie potential future attorneys) common law. Education = nothing more than a dirty business for these colleges, and the Chief is right to remind faculties to stay focused, and stay relevant.
3.
B. McLeod
Jul 7, 2011 7:25 AM CDT
Seems to me that Roberts only said what most people already know. I Kant imagine why it is seem as a criticism.
4.
Timothy P. Flynn
Jul 7, 2011 7:36 AM CDT
Most lawyers would agree that a survey of European intellectual history, even a muscular one, has no application whatsoever to the contemporary practice of law and is really a luxury. I would love to have that kind of time; too busy, however, keeping up w/ deadlines and developments in my practice areas.
5.
Reason
Jul 7, 2011 8:05 AM CDT
Furthermore, these academics entirely fail to produce lawyers who can effectively represent clients upon graduation. Perhaps they should spend a bit more time studying their training techniques and a bit less on “muscular critiques”. It’s an absolute shame that law schools produce thousands of JD’s who’ve never seen the inside of a courthouse (let alone courtroom).
6.
Maryland Esquire
Jul 7, 2011 8:18 AM CDT
Well, I never thought I would say this, but I totally agree with Chief Justice Roberts.
7.
a.nonny.mous
Jul 7, 2011 8:29 AM CDT
Chief Justice FTW!
8.
Tim
Jul 7, 2011 8:54 AM CDT
While I agree that legal academia’s fascination with the esoteric serves noone particularly well, I wonder what the Chief Justice wishes they would focus on. There is, after all, no shortage of publications that are oriented toward the practice of law as craft, rather than as theoretical and social construct.
Does he wish a Scalia-esque inquiry into originalism? That’s an ideological position from the outset, and would undoubtedly swiflty devolve into arcane pieces on the role of 18th century English landscape painters on Jefferson’s view of a pastoral nation. Is that better?
It’s appropriate to point out the problems in legal scholarship. It’s also appropriate to ask the CJ, now that he has seized that particular pulpit, what now?
9.
review
Jul 7, 2011 9:34 AM CDT
Law review articles—-great for tenure for law school professors but useless for practical law.
10.
Pushkin
Jul 7, 2011 10:16 AM CDT
Looks like no one on this blog reads law reviews, or follows links in the posted stories, since Professor Ifill gives a number of examples to disprove Roberts’ claim. (The other possibility, of course, is that no one on this blog practices at a level where ideas are important). The complaint that law review articles are irrelevant to practice goes back to a famous Harry Edwards article (in a law review of course), in the mid nineties and has become kind of an urban legend since then. There have been several empirical studies of the issue in the last few years, and they have found that court usage of law review writing is at an all time high. This is particularly true for business law issues and Courts which specialize in them, such as the Delaware Supreme Court. For a good example of an article describing this phenomenon, with citations to other such articles, see James A. Catone & Michelle Harner, “Is Legal Scholarship Out of Touch? An Empirical Analysis of the Use of Scholarship in Business Law Cases” 19 University of Miami Business Law Review (2010). Roberts now has added ignorance to his growing list of under-qualifications for the job he holds. Cheap shots are the stock in trade of bullies and insecure yuppies, so I suppose no one should be surprised.
11.
W.R.T.
Jul 7, 2011 10:49 AM CDT
Pushkin @10
“The other possibility, of course, is that no one on this blog practices at a level where ideas are important”
“Cheap shots are the stock in trade of bullies and insecure yuppies, …”
So which one does that make you, Pushkin? Or should we add arrogant legal scholars to your list?
12.
Catherwood
Jul 7, 2011 10:56 AM CDT
The Chief seems inclined to unmoor the law from its intellectual and moral foundation. It is bad enough when freshly elected, inexperienced politicians try to do that, but for the Chief Justice of the United States to applaud any move in that direction is sad, indeed. The currents and eddies of right and wrong, which the Chief finds such plain sailing, I can’t navigate, I’m no voyager. But in the thickets of the law, oh, there I’m a forester.
13.
Steve
Jul 7, 2011 10:58 AM CDT
I agree. The only thing worse than a law review article is an opinion by the Supreme Court of the United States. For intelligent analysis, lawyers should read opinions from the Seventh Circuit.
14.
Scopes
Jul 7, 2011 11:24 AM CDT
I grew up in the mistaken belief that the Supreme Court represented the point where legal scholarship formed practical law and the Supremes were (at least theoretically) the greatest legal scholars in the land. Apparently I was wrong, they are just a bunch of ambulance chasers made big.
I can understand legal scholarship having no place in a storefront law firm. But if it has no place in the Supreme Court, where then? Isn’t that what separates us from Bulgaria?
Obviously I am not a lawyer
15.
Wave
Jul 7, 2011 11:42 AM CDT
Instead of getting defensive, listen to and implement the feedback.
16.
Spencer Neal
Jul 7, 2011 11:44 AM CDT
After reading Prof. Ifill’s article, I have to agree with her. There are many law review articles that the Chief Justice should but won’t read, especially the ones criticizing Supreme Court opinions like Iqbal.
17.
larbear1968
Jul 7, 2011 12:17 PM CDT
Hooah!!
18.
tenured but practical
Jul 7, 2011 12:37 PM CDT
I’m a law professor and in this rare case, agree with Justice Roberts. The so-called Legal Academy promotes obscure, mind-numbing legal scholarship over focused topical writings that can help judges, lawyers, students, and the profession. We have to start admitting that the Emperor has No Clothes.
19.
19. Jim-OH 2011-07-07 1432 -0400 [ ]
Jul 7, 2011 1:33 PM CDT
As I see it, some are well worth the read, some not.
20.
John Ruskin
Jul 7, 2011 1:44 PM CDT
19 Jim-OH has it exactly right. Some articles in law reviews are quite esoteric and of little use in the practice of law. Other articles in law reviews can be quite useful. Like all academic publishing, law review articles are all over the map.
So far, only Pushkin (@10) has cited any hard evidence that might indicate the current relevance or usefulness of law review articles.
21.
Plague
Jul 7, 2011 1:48 PM CDT
Tenure at Cooley does not constitute a real law professorship.
22.
Paul Bunyon
Jul 7, 2011 1:56 PM CDT
@ John Ruskin – but wasn’t Pushkin’s evidence written by law professors and compiled in a law review article – sounds like a potential bias and credibility issue. Seems to me that a couple of law profs spending time, at the expense of THE U,to study and write an article touting the relevance of the law review articles of their peers may be unintended evidence contradicting Pushkin’s position.
BTW can’t someone make an offhand remark at a conference of judges without pricking the thin skin of the tenured ivory tower set – or will they just write another article about it?
23.
Funyons
Jul 7, 2011 2:08 PM CDT
Think about it – how many busy practitioners would have the time to research and write a law review article enumerating and categorizing the law review articles that are inane and completely irrelevant to the practice of law? How many such articles, if written, would see publication? So it would seem that the deck is stacked and the articles will be written by professors, defending their own.
I enjoy philosophy and theoretical physics and understand the impact of philosophy on the drafting of the D of I and our Constitution, but really… I also enjoy a good whiskey – but not while I’m working.
24.
jbolaw
Jul 7, 2011 2:34 PM CDT
It’s hard to believe lawyers themselves disparaging legal scholarship, which forms the intellectual basis of our craft. It reflects a fundamental misunderstanding of the role and scope of scholarly legal research.
Justice Roberts’ whining is more understandable. He has been an intellectual lightweight for his entire legal career and possibly knows less about the law than any of his modern predecessors as Chief Justice. His own decisions are informed by political concerns, not the law. That’s why he was nominated for appointment by the intellectual lightweight President who described the U.S. Constitution as just a “goddamned piece of paper.”
Perhaps C.J. Roberts would prefer more practical law review articles that emphasize “How to Wipe Your Butt With the Constitution,” or “How to Behave Unethically as Chief Justice of the Supreme Court and Get Away With It.” Those are Roberts’ specialties.
25.
middletown usa
Jul 7, 2011 2:48 PM CDT
Wow jbolaw, your comment clearly shows the depth of your scholarship and political neutrality – sometime, as with your comments, the best said is – nothing.
26.
John
Jul 7, 2011 3:38 PM CDT
I’ve used law review articles numerous times to aide in understanding areas of law new to me. I’ve also used them to help flesh out novel arguments and legal theories.
That doesn’t mean all articles are useful, but it’s impossible to say when an article is useful. It’s like art—usefulness is the in the eye of the user.
27.
Just the facts, Ma’am
Jul 7, 2011 5:55 PM CDT
@20
You wrote “Like all academic publishing, law review articles. . .”
You should not confuse law review articles with real academic publishing. In virtually all other disciplines journals are edited by accomplished scholars in the area. Law reviews are edited by law students. It’s a wonder they have any credibility at all.
28.
B. McLeod
Jul 7, 2011 6:03 PM CDT
Heh. I always figured Munchkin for the law review type.
29.
borisjimbo
Jul 8, 2011 2:13 AM CDT
What’s the point in doing real scholarship in even Supreme Court briefs if the justices merely scoff at it instead of rebutting it even though they’re in fact no more knowledgeable about the matter than anyone else?
30.
Professor Marc H. Greenberg
Jul 8, 2011 2:37 AM CDT
I practiced law, both litigation and transactional work, for twenty years before becoming a full time law professor, and I still do a small amount of practice. I bring my experience to my teaching and my legal scholarship, which often focuses on practical approaches. What is disappointing about the Chief Justice’s comment is its generalized nature – like lawyers, some legal scholarship is good, and some is worthless. The valuable work is cited regularly in appellate decisions and helps guide legal policy.
31.
Stephen R. Pelcher
Jul 8, 2011 5:08 AM CDT
As a general proposition, the observation of Justice Roberts is undoubtedly correct.
32.
Ed’s Law School Grad (evening division)
Jul 8, 2011 5:50 AM CDT
This is great. The clash of the Ivory towers. Of course the seed of this criticism from Chief Justice Roberts probably has nothing to do with his politcal views and that of many law professors—does it?
Anyway it is amusing to us members of the bar considered the “great unwashed” as we feel neither one of these two could tie there own shoes in the “real world” like in fromt of a jury or speaking to a battered spouse or assisting a small farmer being crushed by regulation .
SO you two Have at it and when I’m constipated or can’t sleep I’ll read about it.
ABA—-keep printing this stuff now that we’ve all forgotten about Casey Anthony WE NEED this information.
Got any Stories about Judges turned Pro Wrestlers or Law professors who are really superheros?
Why am I reading this ? I’ve got to got to work I guess I’m just jealous.
33.
donniem
Jul 8, 2011 6:04 AM CDT
@jbolaw – Loved your comment. I agree that more practical courses should be given at law school, but to practice without understanding the history and underpinnings of the law and legal theory is equally dangerous.
Roberts basically admitted that his Court doesn’t give a rat’s a** about the Constitution or the freedoms it was meant to protect. I wonder what he considers esoteric? Likely articles criticizing the lack of Constitutional bases for a number of decisions by the so -called “originalists.”
34.
Mark Carter
Jul 8, 2011 6:07 AM CDT
I’ve read, cited and written law review articles. So has John Roberts. A fair reading of his statement is that it makes a simple point; academics who study and write about arcane and antiquated legal principles offer little to the average practitioner who is focused on advocating in the here and now. I would add that assembling that knowledge does even less for the lawyer’s clients. These critiques, predictably, evidence a distaste for the Chief Justice’s philosophy more so than his intellect. Fortunately for our nation the critics whines are meaningless – ersatz upon an an anonymous and unseen palette of liberal woes. Perhaps they should all write law review articles about this and cite them to the US Supreme Court.
35.
hiwaves
Jul 8, 2011 6:36 AM CDT
There is a distinction not addressed in the commentary and it is found in the manner and content of legal argument in Europe where semantics can still win a case, as opposed to legal argument in the US where academics is not construed as entirely relevant.
This is valid comment because the reference to Kant and 18th Century Bulgaria is in effect a reference to semantics as practiced in legal argument in Europe. A European judge can be persuaded on the intellectual principals derived from legal history, and ancient and obscure case law, whereas in the US such an approach is considered subversive, an attempt to distract and divert the legal process.
A common response from an American judge to a largely academic brief might be “Do you expect me to read this?” where a British judge would embrace the academic principals and apply them to the case and allow substantial and unrestrained argument on the semantics.
So Chief Justice Roberts comments are valid to an extent but avoid the cultural history of the profession. Law was practiced for many thousands of years before the concept reached our shores. We did not design it or create it’s principals but we do pervert it to our efficient needs.
36.
Philip A. Byler
Jul 8, 2011 6:42 AM CDT
As a general matter, Chief Justice John Roberts is correct. There are exceptions as to law school professors and law review articles; a good law review article or legal book is wonderful to have for insight into a legal subject. But much of what I have seen law professors write in law review articles and in books is worse than worthless.
37.
Mary Frances Love
Jul 8, 2011 6:44 AM CDT
Chief Justice Roberts and I finally agree on something. Did a pig just fly by? Law professors are what’s wrong with recent law grads, too. I cringe when I have to interview a 2010 and 2011 grad. There are no jobs to be had and yet these kids are still arrogant.
38.
Prof. Muriel Morisey
Jul 8, 2011 6:53 AM CDT
I’ve been on the Temple law faculty for 20 years. I endorse the view of those who point out that the Chief Justice engaged in a gross generalization that is also inaccurate. Some legal scholarship has enormous utility for courts and those in practice. Some is not intended to have readily identifiable practical utility, but to contribute to the law’s ability to accommodate thoughtful critiques of existing doctrine and adapt to new circumstances and new ideas. Some are specialty journals with tremendous value in subject areas like the environment, civil rights and international law. No one is obligated to read something they don’t find useful. No one in practice is obligated to read esoteric material if it will come at the cost of devoting the appropriate amount of time to their clients’ concerns and legal needs. Ultimately, I wonder why the Chief Justice thought his remarks were worthwhile, particularly since they didn’t demonstrate research and thoughtful reflection.
39.
Connorblum
Jul 8, 2011 6:59 AM CDT
Pushkin’s post deserves careful reading. Most of the comments and the Chief’s remarks appear to misunderstand the purpose of and function fundamental research and scholarship. No physician reads reports on the intricacies of stem cell research as a means to improving her day-to-day practice. Nor should practicing lawyers expect to find many law review articles that will assist her in drafting a will or preparing for a deposition. That, after all, was never their purpose or function. But appellate attorneys and judges and legislators make use of the research and thought in law reviews routinely. More importantly, the work of the law review writers—like that of others doing fundamental research in any field—elevates the overall competence of the profession, whether a particular attorney ever reads a law review article.
As someone who spends much of my day reading scientific and scholarly articles from the social sciences, neuroscience, and other journals, I can attest that the level of scholarship in law reviews compares extremely well with that of other disciplines—something of which our profession should be proud. The Chief is off base here.
40.
Dan Bowling
Jul 8, 2011 7:02 AM CDT
Much of what abajournal.com writes about – and we comment upon – concerns the state of the legal profession and the life of its lawyers, topics more humanistic in nature than practical “how-to” guides on practice topics. As such, law review articles on jurisprudence, the history of legal education, philosophical influences on the development of the law, moral ethics vs. legal ethics, etc., are highly relevant to practice today – indeed, they are essential in understanding and addressing our professional malaise. Of course, as others have noted, much of what passes for legal scholarship is poorly written, overly dense, and useless for any purpose. However, one can find clearly written, well-argued, and fascinating articles on interesting topics – yes, maybe even about Kant’s influence on the law – if one looks hard enough.
41.
Pierre
Jul 8, 2011 7:15 AM CDT
Re hiwaves
Pity you seem unable to distinguish between “principles”-the word you should have used- and “principals” the word you misused.
On the broader topic, over my four decades of practice I have noted my decreasing use of law review articles, not because they are useless, though some are, but because the publication delays renders them untimely. I regularly keep up with the articles posted online in SSRN where the dates of submissions and of revisions are given.
It also seems to me that the need for Increasing speed of access to comments etc. Has propelled blogs by law professors and practioners into the forefront of usefulness thus displacing law reviews. Coporate law postings by professors Bainbridge and Ribstein are always worth reading, as is ,for example, the Securities Law Professor blog,and the comments on Delaware cases by Wm Allen or by Leo Strine. Now I rest.
42.
Diana Brehob
Jul 8, 2011 7:18 AM CDT
I obtained a Ph.D. in mechanical engineering 2 decades prior to attending law school. I am surprised at the widely-held opinion that a lawyer out of law school should be able to practice law. In engineering, it is widely understood that you learn the fundamentals of engineering and then learn your specialty on the job. There are so many unique areas that one could focus on that it is naive to think that your engineering undergraduate education could prepare you for your ultimate job. Instead, it provides a toolbox that you bring to bear on the job as you are guided by mentors in that specific field. I worked as a patent engineer and Patent Agent for 5 years before I went to law school. It was precisely for these fundamental principles that I attended law school. I explained it to engineering friends: one might learn how to design a heat exchanger without an engineering degree simply by working on the job, but one is not going to pick up the fundamentals of thermodynamics on the job. The same was true for me. I learned how to write and prosecute a patent application mostly by on-the-job training. But, I found myself frustrated in meetings with lawyers in which they spoke of fundamental legal concepts. Although they would try to explain it to me, my understanding was shallow having not read the underlying case law and essentially going through the rigors of law school. I am really quite taken aback by the nuts-and-bolts attitude of legal practitioners presented here. If a goal is for a law school graduate to to be able to practice out of the chute, then I recommend that law school be revamped to the engineering equivalent of technician training. One could have a 2-year program to specialize in Family Law and a 2-year program on Tax Law teaching one how to work through the practicalities of the legal system (appropriate documents, software tools, etc.). Forget the fundamentals and the broad understanding! My point is that you can learn the specifics of your field on the job, but not the fundamentals. That is the point of the educational system, i.e., push one to think beyond practicalities.

I will temper my comments by saying that I did not attend one of the more higher-ranked institutions for law school. Instead, I attended a school that does have a more balanced approach between theory and practical education, and gets penalized in rankings for that. Nevertheless, I may have a different view based on my feeling that I was exposed to enough of the fundamentals and theory to give me the appropriate background while also being exposed to practical law.
43.
Fred Flintstone
Jul 8, 2011 7:24 AM CDT
Interestingly, the comments here are mostly in agreement with the Chief Justice. That being said, it appears those in the academic world are out of touch with the profession.
While I would agree that theory and substance need to be a significant part of law school, it appears it is the only thing taught. Many race to make law school a 2.5 year experience by taking as many classes in a hurried fashion as they can. They learn about such theory that has no practical relevance to a practitioner. The hurried graduate can’t draft even the easiest Motion for an Extension of Time that is granted as a matter of right. I recall graduating in 2005 and after landing a job at a small firm wondering what I was supposed to do as a lawyer to advance a case. I had no idea and was blessed that the firm understood and was willing to teach what wasn’t taught at “law school”.
Instead of allowing the less than three year tenure at law school, the ABA and others should be looking to lengthen the experience so that there is some mandatory residency period to learn the profession. Imagine seeing a recent medical school graduate who has never touched a patient in the 4 years of medical school. They might know everything about the science, but if they can’t give an injection, they’re useless. Are you really comfortable being the guinea pig? Most law school grads spend their entire academic career in the hollowed brick and mortared halls and never speak to a client, never interview a witness, and never draft an appearance. Many law school professors have never practiced law. Schools will claim they have clinics, but only a minority of the students partake.
Rather than strengthening the profession, the ABA and law schools are softening the rules to increase the number being admitted. They are stuck in time in the belief that law school students will find jobs at Big Law where their practical training will take place. I believe to move forward, the ABA and law schools need to adopt a more practical approach to teaching law. It has to be theory coupled with practice. Only then would the Chief Justice’s practical and learned comments be rendered moot.
44.
hiwaves
Jul 8, 2011 7:25 AM CDT
Re: Pierre #41
Apologies, my attention deficit is acute at 3 A.M.
45.
Prof. Muriel Morisey
Jul 8, 2011 7:35 AM CDT
Many law schools do an excellent job of preparing students for practice. Temple, where I teach, and the University of Maryland, where Professor Ifill teaches, are examples. Some of this occurs in traditional classroom settings where professors bring the real world into the discussion of assigned cases. A great deal happens in clinicals where students get supervised experiences doing the things law practice will require. The overgeneralized assertion that law schools don’t combine theory and practice is refuted by even a cursory review of the course offerings of law schools, including the most prestigious ones. The question of legal scholarship’s utility is distinct from the question whether law schools prepare students to practice.
46.
Fred Flintstone
Jul 8, 2011 7:47 AM CDT
With all due respect Professor, I expected that response. I knew someone from the academic world would be unwilling to consider another approach, defending the status quo. There is no question that there is a distinct difference between the question of utility and practice. No one is arguing that.
I suggest the law schools need to model medical schools. Require that “residents” practice with a firm prior to being licensed. Until you do this, your classroom approach is not enough. I was in the law school clinic, I worked on a part of a single case. It didn’t prepare me for the profession in a semester’s time frame. That’s the underlying message here.
If you don’t want to hear the message it is ok. The majority here who are in practice, including myself, are suggesting that law school, even with the practical classes, did not prepare them for the profession. To balance the two, change must take place. In my opinion, the only way to do this is to lengthen the training with a mandatory residency.
47.
dcinsider
Jul 8, 2011 7:53 AM CDT
Isn’t there room enough in legal scholarship for both? Is there some kind of page limit? If an article is read, well received, and cited, it has met its purpose. If not, perhaps it was less than helpful, or too esoteric, or simply not important. It doesn’t mean that it should never have been published. Not every novel is a Stenbeck.
48.
dcinsider
Jul 8, 2011 7:53 AM CDT
or even a Steinbeck 😉
49.
Nor
Jul 8, 2011 7:54 AM CDT
If law review articles did what their descriptor implies, review new developments in the law and synthesize them into implied rules, they would all be useful. But many are really just articles on philosophy, economics, statistics, politics, history, etc.
50.
Marked Man
Jul 8, 2011 7:58 AM CDT
I used to be a law review articles editor in school, then a BigLaw associate, and now an in-house lawyer.
There is no doubt that scholarship in the law could be more relevant and focused. There is sometimes a drive to find some “new” topic that results in these inane articles that become trivial reads. When I was an articles editor, many times I had to question the point of the article when making a publication decision. When I was an associate, the best articles often were the student ones because they had the extensive footnotes that were a research goldmine. And now as in-house counsel I don’t have time to read many law review articles, I tend to rely on shorter pieces and if I do read one it’s usually a “hard” analysis of an issue that I am dealing with.
I’d prefer to see more focus on the things that matter rather than trying to find some interesting topic that lets the author come up with some pithy title.

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The ABA Standards Review Committee will be meeting in Minneapolis on July 9-10 and some new standards, along with comments from Clinical Legal Education Association (CLEA), have been posted to the Standards Committee website.

One change is to the ABA Bar Passage Requirements, on which CLEA  just released a letter in opposition.  Their first concern is over the proposed increased passage percentage for law schools (from 75% to 80%).  CLEA argues that stricter requirements will only lead to increased “teaching to the test” which is not an effective teaching method for lawy students.  Furthermore, it stands inapposite to the other outcome measures that are geared toward acceptance of clinical teaching.

Additionally, CLEA also posted a chart comparing four different proposals for revising Accreditation Standard 405.  The chart is very helpful and builds on the Committee’s own efforts to do the same a couple months ago.

All of the documents are available on CELT.

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Albany Law School Center for Excellence in Law Teaching (CELT) will be holding its Inaugural Conference in March of 2012.

“Setting and Assessing Learning Objectives from Day One.”

SAVE THE DATE: March 30, 2012 (with registration and dinner the night before!)

Intended Audience:

• Individuals interested in improving legal education
• Individuals interested in breaking down the “silos” of doctrinal, clinical, “theoretical”, “practical” skills and “Legal Writing”/Lawyering faculty
• Individuals interested in the process of identifying and assessing objectives under new ABA Standard TOPICFor

More info in the flyer!

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I was forwarded a message today from Melissa Breger, Clinical Law Professor at Albany Law, about a resource available to professors for finding teaching materials.  Stetson Law School’s website houses a database called The Teaching Materials Network which we have linked through the Center for Excellence in Law Teaching site.  The site contains the following description:

The teaching materials network is a contact list of law professors offering to share their teaching materials with peers teaching a class for the first time. If you have a new prep, or would like to help someone who does, log in or register using the links below to search by course, casebook, and credit hours.

After registering and snooping around (I know I’m not a law professor, but I’m not a student either!) I found this to be an impressive resource.  Searching the database is very simple, and can be done by course title and casebook. The number of courses is substantial, to say the least. The number of professors participating in each subject varies greatly, the most I saw was nine for the 1st Amendment. Many courses had only one.

Based on the, apparently, large number of participating professors, I am wondering who out there reading this has used the site? Experiences?  Response time from professors?

I am also interested to know if being able to make personal contact with another professor teaching the subject, as opposed to just downloading a sample, has provided a particular benefit.

Let us know!

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This tip comes to us from Professor Jim Kelly at Notre Dame who suggested the book Practical Wisdom: The Right Way to Do The Right Thing by Barry Schwartz and Kenneth Sharpe.

From the editor’s description:

“Practical wisdom” is the essential human quality that combines the fruits of our individual experiences with our empathy and intellect-an aim that Aristotle identified millennia ago. It’s learning “the right way to do the right thing in a particular circumstance, with a particular person, at a particular time.” But we have forgotten how to do this. In Practical Wisdom, Barry Schwartz and Kenneth Sharpe illuminate how to get back in touch with our wisdom: how to identify it, cultivate it, and enact it, and how to make ourselves healthier, wealthier, and wiser.

If anyone has had a chance to read it, we would love to see a review!

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From:    SUSAN D. CARLE, American University Washington College of Law, Chair
               RENEE NEWMAN KNAKE, Michigan State University College of Law
               CAROL A. NEEDHAM, Saint Louis University School of Law
               MILTON C. REGAN, JR., Georgetown University Law Center
               CARLA D. PRATT, Pennsylvania State University The Dickinson School of Law

Re: Request for Proposals on Innovative Teaching, Other Legal Education Practices,  and Work at the Intersections among Scholarship, Teaching, and Service  

We are planning the AALS 2011 Annual Meeting Workshop on “Changes in Law Practice; Innovations in Legal Education,” to be held on Thursday, January 5, 2012 in Washington, D.C.  The workshop seeks to examine (1) the many changes currently underway in how law practice is organized and carried out, and (2) the relationship between these changes and the future of legal education.   We are seeking proposals on innovations in the many facets of legal education, especially teaching and work at the intersections among teaching, scholarship, and service.  Proposals selected by the workshop planning committee will receive national exposure, either through possible presentation on a workshop panel or by being included on the AALS Workshop webpage highlighting ideas and themes generated by the workshop.  We are interested in any innovations taking place in legal education that would be of interest to members of the legal academy in planning for the future against the backdrop of the changes in law practice that our students will encounter in their legal careers.  

Some possible topic areas might include (but are not necessarily limited to):

• innovations that point the way to what legal education of the future could or should be;
• innovations in teaching that reflect expansive conceptions of the cognitive abilities and skills needed for law practice beyond traditional conceptions of legal analysis;    
• innovations that combine newer and more traditional teaching methods;
• innovations that engage with changes in law practice and/or respond to the changing economic realities of the profession;  
• innovations that involve interdisciplinary collaborations and/or borrowing from ideas and innovations taking place in other disciplines or professions;   
• innovations aimed at cultivating experiential learning and reflection through externships and other practice-based experiences;
• innovations in legal education that address differences in styles of learning;
• innovations in methods of giving meaningful feedback and evaluation;
• innovative work at the intersections among scholarship, teaching and service;
• innovations in scholarly activity that involve different kinds of critical inquiry beyond the traditional law review article, such as a sabbatical engaged in law practice;
• innovations in teaching designed to address gender and racial disparity among positions of leadership and power in the legal profession;
• interdisciplinary teaching, scholarship and/or service projects;
• innovations in the financing and organization of legal education.

Interested proposal writers from faculty at AALS member schools should submit a short (not more than 1,000 word) description of their innovation in teaching or legal education more generally, or innovation through work at the intersections among scholarship, teaching and service, to 2012WLP@aals.org by July 15, 2011.   We will notify proposal writers by September 1, 2011, if they have been selected for an oral workshop panel presentation or a written posting of their proposal on the AALS website for the workshop.  Selected speakers will pay their registration fee for the Annual Meeting and are responsible for their own travel and other expenses.  Please direct questions to any one of the planning committee members;  Susan Carle, scarle@wcl.american.edu; Renee Knake, rk@law.msu.edu; Carol Needham, needhamc@slu.edu; Mitt Regan, regan@law.georgetown.edu; and Carla Pratt, cdp10@psu.edu.

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Professor Christine Chung sent this to us today. The Conglomerate blog is holding summer teaching roundtables online.

This summer, the Conglomerate is organizing a series of roundtables on teaching business law courses. We have invited groups of law professors to share their innovations and ideas on how they are teaching and adapting particular courses. (We are in early stages of planning a roundtable on the law school business curriculum more generally for later in the summer.)

We have given our roundtable guests free rein to talk about how their approaches and innovations in teaching.

Check it out and let us know what you think.

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What a wonderful first day of the conference on ENGAGING AND ASSESSING OUR STUDENTS! NYU’s Peggy Cooper Davis presented the morning pleanary on “Allowing Relational, Social and Legal Issues to Intersect in Legal Education” along with a colleague from NYU’s Theatre Education Department.  Conference participants  were introduced to “process drama” as an effective classroom technique for  leading  students to greater understanding of a legal issue or of the application of legal issues in realistic lawyer-client situations.  Attendees practiced the use of lawyer role assumption by student and  non-intervention “push back” by  the client- teacher not for the purpose of teaching the skill of interviewing but for the purpose of leading to greater professioal identity understanding .

I then attended a wonderful presentation by Thomas Cooley Professor Tonya Krause-Phelan on “Connecting the Dots: Stimulating Students to Love the Law” on theory, law, simulation, group work, and real practice on the first day in a first year criminal law class. My next adventure was into the future classroom including virtual reality, a presentation ably handled by Professor April Barton of Villanova. The program and handouts themselves are a treasure trove of good teaching tips. Go to above site and click on handouts.

While we are talking conference, who would be interested in coming to a conference on “Learning Objectives for the First Year of Law School” next March 23rd or 30th at my lovely home institution (Albany)? I think its time for folks of all perspectives, methodologies, orthodoxies and sensibilities to come together to discuss what should – and could – be ideal foundational objectives for the first year to better prepare students for the experiential and advanced learning of the second and third. Should experiential learning start in the first year? Should content knowledge dominate first year objectives? How best do we figure out the foundational objectives of critical reading, thinking and writing in a way which integrates the skills, content and professional identity Carnegie recommends? What are Best Practices for the first year?

Please let me know if you think this conference is a good idea, are interested in attending or presenting and/or if the dates sound good. You can contact me at mlync@albanylaw.edu.

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The Clinical Law Review will hold its next Clinical Writers’ Workshop on Saturday, October 1, 2011, at NYU Law School.

The Workshop will provide an opportunity for clinical teachers who are writing about any subject (clinical pedagogy, substantive law, interdisciplinary analysis, empirical work, etc.) to meet with other clinicians writing on related topics to discuss their works-in-progress and brainstorm ideas for further development of their articles. Attendees will meet in small groups organized by the subject matter in which they are writing. Each group will “workshop” the draft of each member of the group.

Participation in the Workshop requires the submission of a paper because the workshop takes the form of small group sessions in which all members of the group comment on each other’s manuscripts. By June 30, all applicants will need to submit a mini-draft or prospectus, 3-5 pages in length, of the article they intend to present at the workshop. Full drafts of the articles will be due by September 1, 2011.

As in the previous Clinical Law Review Workshops, participants will not have to pay an admission or registration fee but participants will have to arrange and pay for their own travel and lodging. To assist those who wish to participate but who need assistance for travel and lodging, NYU Law School has committed to provide 10 scholarships of up to $750 per person to help pay for travel and lodging. The scholarships are designed for those clinical faculty who receive little or no travel support from their law schools and who otherwise would not be able to attend this conference without scholarship support. Applicants for scholarships will be asked to submit, with their 3-5 page prospectus, by June 30, a proposed budget for travel and lodging and a brief statement of why the scholarship would be helpful in supporting their attendance at this conference. The Board will review all scholarship applications and issue decisions about scholarships in early July. The scholarships are conditioned upon recipients’ meeting all requirements for workshop participation, including timely submission of drafts.

Information about the Workshop – including the Registration form, scholarship application form, and information for reserving hotel rooms – is available on-line at:

http://www.law.nyu.edu/journals/clinicallawreview/CLRWorkshop2011/index.htm

The Board will distribute a hard-copy version of the Registration and scholarship application form at the AALS Clinical Conference luncheon on Thursday, June 16th.

If you have any comments or suggestions you would like to send us, we would be very happy to hear from you. Comments and suggestions should be sent to Randy Hertz at randy.hertz@nyu.edu.

— The Board of Editors of the Clinical Law Review

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It would be great to hear from others who have been trying to incorporate small group work into their large  classes. This is something I’ve been able to do successfully in the past with classes of no more than 30 or so, but trying it with a class of 70 this year was challenging. It’s not the actual working of the groups that declined– the level of participation there, with groups tasked specifically, has remained high. My concern is how to maintain the same level of involvement when we come back together to report on what the groups came up with. With at least 13 groups, that’s 13 Recorders/Reporters. So those 13 are involved, but keeping the rest in “active-involvement” mode is the challenge. And, if the culmination of the small group project doesn’t engage actively the other 50 in the class, I’m not going to be satisfied. Have any if you developed ways to solve this problem?  If you have, could you please share them with us so we all can have a better handle on making large classes feel smaller?

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By:  Bridgit Burke, Associate Clinical Professor and Director, Civil Rights & Disabilities Law Clinic, Albany Law School

As those in clinical education already knew, the blackboard/lecture method of teaching is not the most effective teaching style. A recent study once again confirms that working in a group to solve problems is far more effective for students than a traditional lecture.

In a study of 850 undergraduate physics students done at the University of British Columbia, groups of students were divided into lecture sections and experimental sections.  The experimental learning format consisted of group work, problem solving, and discussion while the actual memorization was self taught as homework. At the end of the week, the students were given a voluntary test. According to a report in the Economist, “The traditionally taught group’s average score was 41%, compared with 74% for the experimental group–even though the experimental group did not manage to cover all the material it was supposed to, whereas the traditional group did.”  The New York Times reports that the individuals in the non-traditional group were taught by teaching assistants and the traditional group was taught by the usual lectures. 

While we may not find the results surprising, both the New York Times and the Economist are quick to point out that the study may not be perfect.  The disparity is “biggest performance boost ever documented in educational research.” One criticism is that the students in the non-traditional group may simply have responded to the novel approach.  I for one would like to see the day when problem solving teaching is the norm so that we could test this criticism.

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The following was previously posted at Concurring Opinions by Jessica Erickson.

You would have to live under a rock not to know that law schools increasingly feel the pressure to teach practical skills. Law schools can no longer teach doctrine and count on law firms to teach new lawyers the skills they need.  As a result, many schools are starting to incorporate practicum-style courses into the curriculum. These courses allow students to learn litigation or transactional skills in the classroom by working on simulated cases or transactions.

My sense is that many of us are interested in teaching these courses, but the practicalities are daunting.   Two years ago, I set out to create a course that would teach students how to be corporate litigators. I had visions of teaching my students an array of practical skills, including how to untangle financial statements, read complex statutes, and draft various case materials. It looked so good in my head. Then I actually tried to put together the course. There was no textbook. There were no model exercises. There was no anything… I spent a crazy amount of time putting together a course packet, coming up with weekly drafting assignments, and thinking about how to teach the skills I thought my students would need. I hesitate to say exactly how much time out of fear of scaring away others, but I still have flashbacks of sitting at my kitchen table for days on end trying to come up with creative fact patterns and drafting exercises.

For the rest of the post, go to Concurring Opinions.

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The following is an email sent over a law clinic listserve from Professor Amy Applegate, Clinical Professor of Law at Indiana University Maurer School of Law, and is reproduce here with her permission:

Dear All:  I was quite intrigued by this chain of e-mails, and am following up on Judith Welch Wagner’s suggestion about engaging in more in-depth, rigorous research, perhaps conducted by the Law School Survey of Student Engagement  (LSSSE).

I wanted to bring to everyone’s attention the attached article written by Carole Silver (and two others) here at Indiana University Maurer School of Law.  Carole teaches one of the sections of our first year Legal Professions course and is the Director LSSSE.  Carole is also presenting at the 2011 Conference on the Future of the Law School Curriculum in mid-June – she is a presenter on the Sunday Plenary about Forces from Outside the Academy.  [Ok, I can’t help myself:  The AALS Conference on Clinical Legal Education, which will be held as part of the AALS midyear meeting this year in June in Seattle, will overlap with the curriculum conference, so I encourage you, if you haven’t yet registered for the conference, to do so now.  You may access the conference brochures and registration materials here].

I recommend that you read the attached article, as it presents empirical research that appears to support the value and importance of clinical legal education. 

Here are some of the highlights:

At the bottom of page 15: 

Their “findings suggest that clinical experience may enhance learning legal ethics, but more research is necessary to confirm the direct relationship.”

At page 21:

“[S]tudents with a clinical experience, whether or not they also had paid legal work experience, reported higher positive gains across each item of development in Table 5.”

Table 5 items were:  Building positive relationships with your future clients; Deepening your capacity for moral reasoning; Preparing you to handle the stresses of law practice; Strengthening your commitment to serving the public good; Acting with integrity in both personal and professional settings

“Interestingly, paid legal work does not seem to yield the same gains. We cannot explain whether this is because of a difference in goals of the practical experience (educating the student versus serving the client’s interests), the scope of the work shared with the student, or another reason, but the data provide a strong endorsement of clinical legal education for purposes beyond its particular goals.”

At page 21-22

Again, quoting directly (emphasis supplied by me):

III. Conclusion

Law schools serve as launching pad and gatekeeper for the legal profession. They answer to disparate interests, including students, alumni, employers, regulators , courts and the public. In helping students make the transition to professional roles, schools need support for evaluating what works well and what would benefit from additional attention. The data described here offers some insight in this regard. But the data only begin to uncover how law students gain insight into their professional identity and purpose. Generally, these findings point to the importance of law school classes for effective learning about legal ethics, and also to the role of clinical legal education as a means for deepening the effectiveness of these lessons.

Findings suggests clinical experiences seem to further students’ learning about professional identity and purpose in settings that are experienced by all students, but in order to understand why clinical education furthers learning with regard to the third apprenticeship, additional research is necessary. Do these gains relate to the real-world aspect of clinical work? Or is it the more intense and intimate faculty-student interaction of clinics that yields gains? Do students appreciate the lessons of their classes more after having a clinical course because they are more experienced law students, or would a first-year clinical experience also yield these gains and deepen learning throughout law school? Are the benefits of clinical education common to all clinical experiences, whether live-client or simulation, and regardless of the substantive focus of the clinic? How can law schools capitalize on the clinical experience in other settings? And what explains the differences between clinical experiences and paid legal work?67

Significant differences in the responses of 3Ls and 1Ls may suggest the ways in which law school delivers value to students, but more work is necessary to determine whether this is the case. Data reported on in this article did not follow the same student from year one through year three, and differences in cohorts may be related to factors other than the experiences that arise from law school. Related to this issue is the possibility of differences among student populations. Finally, how do the institutional characteristics of law schools affect learning about professional identity and purpose? Understanding these issues will help law schools address the particular dynamics influencing their students’ experiences.

Aside from questions for future research, however, our work offers important lessons about the way students develop a sense of professional identity and purpose. Students indicated that the most effective setting for learning legal ethics was their professional responsibility class. This was true for students who had no clinical or paid legal work experience as well as for those who had one or both of these experiences. We only can suggest why this is the case; the most likely explanation relates to student expectations. Students expect to learn about legal ethics in professional responsibility; they do not expect legal ethics to be a topic of discussion in corporations, civil procedure or in non-classroom experiences.

Carnegie’s message of the importance of intentionality and explicitness provides the crucial insight for law schools to move beyond this silo-effect. Law schools can make additional settings and experiences relevant to gains in the third apprenticeship by explaining to students the relationship of their lessons and experiences to the issues of professional identity and purpose. That is, schools must help students “connect the dots.” To do this, law schools must acknowledge and embrace opportunities to teach to the larger lessons of professional identity and purpose in settings other than those aimed at legal ethics, whether or not these opportunities arise in a credit-generating setting. This may require faculty to educate themselves about what happens outside of their classrooms. Doctrinal faculty may need to learn more about their law school’s clinics and externships (and vice versa) and all faculty may need to learn more about what their students experience in their paid legal work and pro bono activities, so that each of these “alternative” activities and settings may be more thoughtfully drawn into classroom discussions and teaching on substantive law. In order to help students make the transition to becoming lawyers, law schools and faculty must move beyond the borders of their control. The goal of a more expansive approach is to situate professionalism in its integrative role, outlined in Educating Lawyers, and allow it to provide a framework for the entire law school experience.

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