Best Practices for Legal Education

Posted with permission from Professor Stephen Ellman, Associate Dean of New York Law School
Originally posted on Not Without Hesitation blog.

The “2010 Survey of Law School Experiential Learning Opportunities and Benefits,” just published by NALP (The Association for Legal Career Professionals) and the NALP Foundation, provides striking evidence that law graduates – or at least associates at firms almost all of which had 100 lawyers or more – regarded their clinic and externship experiences as valuable in preparing them for the practice of law is important. But like most surveys it raises at least as many questions as it answers. Here are some that struck me, based on what I’ve digested so far from the survey report (full disclosure: my colleague Meg Reuter, Assistant Dean for Career Planning at New York Law School, was a vice-chair of the NALP work group that helped develop this study):

First, as important as the core finding about the value of clinics and externships is, there is more that would be good to know about it. The survey asked students to list all the sorts of practice courses they had taken, and the report provides the ratings of “usefulness” of various sorts of courses and experiences – clinics, externships, (classroom) skills courses, and pro bono work – by the students who took those particular kinds of courses. It’s very interesting to know that students who took clinics rated them as valuable, and students who took externships rated those just about equally highly (and that students who took simulation courses were less impressed, and students who did pro bono work even less so). But it would also be interesting to know – and it seems the survey data could tell us – how students who had more than one of these courses or experiences rated them: how, for example, students who took clinics and simulation courses rated those two kinds of classes, or students who took clinics and externships. Because they have a basis for comparison, the judgments these students make may be worth careful study. It would also be revealing to know more about which clinic experiences and which externship experiences correlate with high assessments of usefulness; the survey collected some data on types of clinic and externship experiences and so perhaps these correlations can be reported and studied, but they’re not in the current report. (Rebecca Sandefur and Jeffrey Selbin have noted the importance of breaking out the various different sorts of clinics in their analysis of another study of preparation for practice, the “After the J.D.” study, in their article The Clinic Effect, 16 Clinical Law Review 57, 84 (2009).)

Second, although the report demonstrates a striking difference between clinics and externships on the one hand, and other skills courses on the other, the difference needs to be carefully assessed. It’s striking that much higher percentages of respondents considered clinics or externships very useful (63.1 % and 60.1 %) than said the same about classroom skills courses (38.5 %). But these figures by themselves may overstate the real differences between the graduates’ perceptions of these courses. The survey asked for answers on a 1 to 4 scale, with 1 being “not at all useful” and 4 “very useful.” The total percentage giving clinics a 3 or a 4 was 84.3 %; for externships, 83.5 %; and for classroom skills courses, 76 % — many graduates who’d taken classroom skills courses gave them 3’s and so narrowed the cumulative gap between the various types of courses. According to the report, the “average usefulness rating” for clinics was a 3.4; for externships the same; and for skills courses not much less, 3.1.

On the general question of how to deliver effective skills training, it’s also noteworthy that about twice as many students took one of the classroom skills courses as took clinics or externships (637 in skills courses; 279 in clinics; 333 in externships). So it might be said that the classroom courses delivered “pretty useful” instruction to a much larger number of students than either one of the two types of more experiential courses did. One other point to consider here: the classroom skills courses covered a wide range, including trial advocacy, advanced drafting, “subject matter specific skills,” law practice management, leadership, and “other.” Of those that students took most, all except advanced drafting may fall in the general category of simulation skills training, but it’s not entirely certain which particular classes the students found more or less useful.

One other point about the general effectiveness of skills training in law school: how much difference does it make to those who hire the new graduates? Another commenter has asked whether there are data on whether law firm hiring partners take such courses into account. That I don’t know. The NALP survey asked a related question of the graduates — which, if any, of their skills courses they discussed in their hiring interviews — but this report does not include data on what the answers were. It would be heartening to learn that the programs graduates regard as having helped them prepare for practice were in some tangible way being taken into account by those who hired these graduates for their practice jobs – but this happy possibility may turn out not to be the reality of the matter.

Third, the survey seems to have asked only about skills courses and pro bono work. If that’s right, that means it didn’t include some law school experiences that may be very useful but don’t take place in courses. Moot court is the clearest possibility, but many students may find law journal work useful (because it hones their writing and research skills, or because it, like moot court, gives them experience in running an organization). It would be useful to know more about how graduates evaluate these sorts of law school experiences once they’re out in the world. It would also be useful to know whether students see any of the doctrinal courses they’ve taken as useful too. Right now we know that students consider clinics and externships very useful; we don’t know from this surveywhether they find their civil procedure or labor law classes very useful too. (We do have data on this from the “After the J.D.” study; as summarized by Rebecca Sandefur and Jeff Selbin, in The Clinic Effect, the new lawyers who were that study’s respondents rated their “upper-year lecture courses,” “course concentrations,” and “first-year curriculum,” as significantly less “helpful … in making the transition to [their] early work assignments as a lawyer” than summer and part-time work, clinics, legal writing training and internships. (83-85))

Fourth, this was a survey of “law school experiential learning opportunities.” As such, it didn’t ask about non-law school experiential learning opportunities. As Rebecca Sandefur and Jeff Selbin have found from the data generated in the “After the J.D.” study some years ago, new lawyers rated their full-time summer jobs as significantly more valuable than any other experience rated in helping prepare them for the transition to practice, and rated part-time jobs during law school at the top of a category of the next most valuable experiences, which included these jobs, clinics, legal writing training, and externships. (85-86) (There is room for some doubt, however, about whether all the raters had actually had the experiences they rate (see 85), and so it’s not clear to what extent these ratings reflect judgments by people who actually had a personal basis for comparison.) But the possibility exists that what our students believe they learn most from is simply real experience. Clinics and externships provide that. I believe some other law school courses, such as project-based learning courses in which students, for example, create a website on a real-world issue, do so as well. But jobs provide real experience too.

If additional data turn out to confirm the “After the J.D.” finding that graduates value their summer jobs as much as, or more than, they value their clinics (or other law school skills instruction), would that mean that the academic instruction in clinics and elsewhere didn’t add anything to the value of experience all by itself? I think it’s quite possible the data will turn out this way, but that drawing that conclusion from them would be extremely implausible. Taking these imagined data at face value, what they’d show is that these two forms of learning are both very useful, not that the same things are learned in each setting. One might ask, also, whether these data really should be taken at face value. It’s entirely possible, after all, that graduates don’t realize all that they’ve learned in any given setting. If it turned out, for instance, that they didn’t consider their first-year courses very useful (as the “After the J.D.” data indicated), we mightrespond that they were mistaken, because they had to get the foundation in legal analysis and knowledge that the first year provided before they could go on to anything else.

But I think we should recognize that learners do know something about where they are learning most. If they turn out to value both jobs and law school skills training, that is a good reason to consider seriously the value of real experience as part of the overall law school learning process. It’s not, however, likely to be an argument against clinics or against skills training in law schools overall. If it turns out that law school skills experiences and jobs are both very useful forms of preparation for practice, the next question would be whether both are more useful than some or many of the doctrinal courses offered in law school. If the answer to that question turns out to be “yes” – and this is what the “After the J.D.” respondents indicate, though as I’ve just said their judgments may have been mistaken – then the implication would be that both of these forms of experiential training should be accentuated, not that one or the other should be sacrificed while the rest of the curriculum remains unchanged.

So the survey is very helpful. The question of what new lawyers believe was useful in their law school years in preparing them for law practice is an important one, and it would be good to ask it as to everything the new lawyers did during (and in the summers of) law school. Right now we have a part, a tantalizing part, of the whole story.

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By Rachel Littman
Asst. Dean, Career Development and External Relations
Pace Law School, White Plains, NY

New York, NY – April 16, 2011

The third iteration of the New York Law School-Harvard Law School sponsored Future Ed conference ended in as enthusiastic a dispersal as its original assemblage one year ago.  The take away?  In the words of David Thompson, Director of the Lawyering Process Program at University of Denver Sturm College of Law and author of Law School 2.0 (using a very cool Prezi visual presentation), “go Evangelize!”  Even with the simulated angel fund investment pitches and solicitations for critique and feedback, the speakers and participants generally supported everyone who was there.  From using a Cal-Berkley study on incorporating lawyering effectiveness predictors into the law school admissions process (and hopefully into legal hiring),[i] to creating online programs to increase access to justice,[ii] and enabling synchronous online distance learning for a consortium of law schools,[iii] the more than dozen presentations all demonstrated what innovative and creative legal professionals are doing to make the law school experience more aligned with the realities of practice, technology and learning styles.  We all knew that. 

Let this blog post serve as my way of evangelizing.  Let the substance of the work behind the conference proposals proselytize those in legal education who think we can keep doing things the way we have always done them.

Ahead of the Curve

Of course, the elephant in the room that surfaced on several occasions was the pending revisions to the ABA Standards.  Learning outcomes was the most discussed.  Bill Henderson, Professor of Law at Indiana University and Principal at Lawyer Metrics, LLC, has been looking at outcomes based assessment for a long time.  Bill seemed to be involved in almost every creative and forward-thinking proposal at Future Ed.  Washington & Lee School of Law is now in its third year of a completely revamped 3L curriculum and hopes to have enough data in a few years to assess whether their system is really improving practice readiness, Bar passage and their system of legal education.  Outcomes assessment is already underway.

Inevitably, the fate and role of tenure also drew lively commentary.  The room was filled with law faculty and administrators – some tenured and some not – but the tone did not rise to a level of dismay and outrage inherent in some of the comments posted to the ABA Standards Review Committee website.  This was not because the old, storied institutions were not represented; indeed the conference was co-sponsored by Harvard Law School and its Program on the Legal Profession (could there be a nicer guy than Program Director, David Wilkinson?) and Mitt Regan from the Georgetown Center for the Study of the Legal Profession was noticeably present (though made few public comments that I can recall).  Everyone in the room was ready and indeed well ahead of the ABA in efforts to incorporate technology in and outside the classroom, to tackle matters like learning outcomes, and focus on how to reduce the cost of legal education and make it better. With or without tenure.

Do Traditional Tenure Criteria Stifle Innovation?

If tenure for law faculty is at risk, what does that mean for teaching innovation and re-thinking legal education?  Are those with job security more or less likely to take innovative risks and move from the Langdellian lecture model to styles that incorporate simulations, small work groups, and independent projects (I’m talking more than the traditional clinical setting)?  What do readers think? The room at Future Ed 3 was generally split on this point.  Some thought that tenure gives faculty members the security to take risks and others saw the path to tenure as an ingrained culture focusing on scholarship (much of which, one presenter claimed, is never cited by anyone) that has little to do with student service and much to do with the overbearing cost of legal education.  Sometimes innovation works and sometimes it doesn’t.  Some are better at innovating than others.  Hopefully market pressure – in our case, law school admissions applications, student outcomes and employer satisfaction – and the innovators will prevail.  With our without tenure.

Re-Thinking Legal Education

The most inspiring presentation at the Future Ed 3 Conference had nothing to do with law, but its potential application to legal education was apparent.  Dr. Richard Miller, probably the funniest engineer any of us had ever heard, the current President of the young Olin College of Engineering, walked the conference attendees through the school’s focused mission and related application process, training methods and campus layout and purpose (you could hear the cogs whirling in every law school Dean’s head – “How do I get us some buildings like those?!”).  Yes, they re-created the engineering school model with several hundred million dollars in foundation grant money, but if they can do to engineering what Chris Whittle and Benno Schmidt did with K-12 education [see the Edison Schools, now known as EdisonLearning and the not-yet-opened Avenues], who’s to say we can’t re-think legal education?  New York Law School Dean Rick Matasar, who himself has been evangelizing about the cost of legal education for years, ended Future Ed with an invitation to explore many futures in legal education.  Todah Rabbah, Dean Matasar.  Great conference. 

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NALP recently posted its “2010 Survey of Law School Experiential Learning Opportunities and Benefits”.

Here is the executive summary.  Some of what is in the survey will be familiar or predictable to readers of this blog, but I think there are a few surprises as well:

Executive Summary

“Hands-on learning (skills courses, judicial internships, clinics, etc.) are the most effective preparation for law practice.”

“I benefitted most from situations in law school that let me learn in real life and real time.”

Much debate has ensued during the last few years regarding the effectiveness of law school in preparing new lawyers for the practice of law and the advantages of experiential learning opportunities offered during law school. The data from this study suggest that some, if not all, of these “hands-on” or simulated learning opportunities, whether required or optional, are indeed instrumental in preparing new associates for the demands of the practice of law. The respondents, all associates in private law firms, provided a new view of some of the various experiential opportunities offered in law schools, and of whether these experiences affected their development and preparedness as a lawyer.

Participation in and Benefits of Legal Clinics

Slightly under one-third (30.2%) of the survey respondents reported that they had participated in at least one legal clinic during law school. Within this group, 63.1% rated these clinics “very useful” using a scale of 1 to 4 (with 1 being “not useful at all” and 4 being “very useful”). Only 3.9% of the respondents in this group rated the clinics as “not useful at all.”

Participation in and Benefits of Externships/Field Placements

Tracking similarly to participation in legal clinics, 36.2% of the associate respondents reported having taken part in an externship or field placement during law school. Not surprisingly, participation in these programs increased for students who attended law school in metropolitan areas with populations over 100,000. Overall, roughly 3 out of 5 (60.1%) associates who reported participating in at least one externship or field placement rated the experience as “very useful.”

Participation in and Benefits of Practice Skills Courses

The majority (70.1%) of the responding associates reported that they had taken at least one practice skills course during law school, with 40% reporting that they had taken three or more practice skills courses. The most common practice skills course taken by this group was Trial Advocacy. Surprisingly, the data reveal that the associates who reported participating in at least one of these courses considered them to be only moderately useful. Unlike the usefulness rating reported by associates who had participated in legal clinics and/or externships, only 35.8% considered their practice skills course(s) to be “very useful.”

Participation in and Benefits of Pro Bono Work During Law School

The data reveal striking differences when it comes to participation in and usefulness of pro bono work during law school compared to other experiential or “hands-on” learning opportunities. The vast majority of respondents (88.3%) reported that pro bono work during law school was not required. Within the group who reported doing pro bono work, either voluntarily or as part of a curriculum requirement, over half (59.3%) said that they performed fewer than 40 hours of pro bono work during their law school tenure. When asked to rate the general usefulness of pro bono work in preparing them for private practice, associates ranked the experience(s) significantly lower, an average of 2.2 on a scale of 1 to 4 (with 1 being “not at all useful” and 4 being “very useful”), compared to the overall usefulness ratings of legal clinics (an average of 3.4), externships or field placements (an average of 3.4), and skills courses (an average of 3.1).

The full report is available at http://www.nalp.org/uploads/2010ExperientialLearningStudy.pdf

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In its late February article, entitled “As They Ponder Reforms, Law Deans Find Schools Remarkably Resistant to Change,” the Chronicle of Higher Education reported that law faculty use the “lecture-based model because it is cost-effective and convenient,” quoting Erwin Chemerinsky, Dean of University of California’s Irvine School of Law. In the same article, Dean Richard Matasar of New York Law School bluntly states, “[w]e’re all old dogs trying to learn some new tricks, and all of us old dogs have got tenure and we’re not going any place.”

John Nolon of Pace Law School and I conducted a teaching survey in the land use law area and found remarkable evidence showing change in teaching skills in recent years.  We suggest that the practical, emotionally-charged, interdisciplinary, and grounded nature of land use, as well as environmental and sustainable development law, make courses on these subjects ideal both for teaching skills and values and for integrating podium and clinical methods of instruction. (See Practically Grounded: Convergence of Land Use Pedagogy and Best Practices, Journal of Legal Education, Vol. 60, Number 3, February, 2011, at p. 519.)  Our survey shows that the trend toward teaching practice skills in traditional doctrinal courses is underway, at least in the land use classroom.

Deans and professors are focused on this issue in part because the American Bar Association is planning to add “student learning outcomes” to the process of accrediting law schools.  Drafting new rules for schools to follow has been delegated to the ABA’s Student Learning Outcomes Subcommittee.  This six-member group is charged with the controversial task of determining the rules that schools must follow to determine and measure the skills that law students should have upon graduation. For further information on these accreditation issues see The National Law Journal of Feb 22, 2011.

Albany and Pace Law Schools are sponsoring a conference on this topic. On May 5^th, nearly a dozen land use and environmental law professors from law schools across the country will present their skills and values teaching models. Additionally, our resident experts will facilitate extensive discussions regarding best practices for teaching practice skills to students in upper division courses.  High on the list of discussion topics are the time practice teaching takes, class size issues, and the concern over lost doctrinal coverage.  Please click here for conference information if you are interested in attending.

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A recent post on The Faculty Lounge Blog entitled “Tenure And Open Record Laws: What Happens When Profs Are Forced To Produce Emails?” discusses a situation involving a University of Wisconsin history professor whose emails were sought pursuant to the Freedom of Information Act. Why?

[Professor] Cronon had been active in opposing Governor Scott Walker’s union-busting efforts and the GOP sought to expose the possibility that Cronon was violating the state’s ban on using state resources for political activity.

As the author points out, the situation is relevant to the ABA tenure debate “because clinicians and writing faculty are just as likely to publicly advocate for policies as other law faculty members.”

Click here to read the full story.

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This morning,  the ABA Section of Legal Education and Admissions to the Bar Standards Review Committee held an open forum at Hotel 71 in Chicago and received much feedback on the current draft proposals arising from the Comprehensive Review of Accreditation Standards.  Committee members heard from a diverse group of speakers.  Representatives from the Clinical Legal Education Association (CLEA), the Society of American Law Teachers (SALT),  Association of Legal Writing Directors (ALWD),  the Association of American Law Schools (AALS) ,  and the Best Practices Blog, as well as the Dean of Golden Gate University School of Law and several current or retired professors all of whom spoke against the proposed removal of tenure and 405 status. They also emphasized the likelihood that American legal education would be harmed by such a ‘”drastic change.”  Commentators noted that the initial Outcomes measures proposals had been much watered down because of the reaction of  many in the legal community. Similarly, the Committee was asked to consider the outpouring of negative reaction to their proposed removal of tenure and security under 405.  Commentators noted that the attack on tenure removed a fundamental cultural principle of American legal education, the importance of security to those who speak truth to power and, moreover, that those most at risk under these proposals were the very teachers in legal education who are most expert in integrating knowledge, skills and values (i.e., clinical and lawyering faculty) as demanded by the new outcomes standards.   Some of these commentators along with those from the California State Bar Association’s Committee on Legal Education & Admissions to the Bar and the ABA Council on Racial and Ethnic Diversity in the Educational Pipeline also focused  the Committee’s attention to the disparate impact of many of the standards as to race , gender and other diversity factors and proposed further consideration of provisions such as those on Admissions,  Bar Examination pass rates, and faculty security and status.   One theme which weaved throughout the morning was the theme of “unintended consequences” which arise when the separate proposals are considered as a whole or in an interlocking manner. 

As your editor, I asked the Committee (in my very short 5 minutes of time) to use as a touchstone the question whether or not law school graduates will be more or less likely, under the draft revisions,   to meet a client and then receive appropriate feedback on that interaction during law school.  I posited that the combination of  removal of tenure and 405 (c) combined with the current conflation of simulations, field placements and in-house clinics and the lack of definition for the phrase  “Substantial Opportunities” for clinical courses makes it less likely that these draft proposals will be consistent with the spirit and heart of Carnegie and Best Practices. 

After the open forum, the SRC moved to its “Action Items.”  First, it voted on current proposals on Chapter 2 Organization and Administration of a law school and Chapter 7 on facilities with modest modifications.   The Committee then moved to discuss Chapter 3 Learning Outcomes. After revising the proposal to require  at least two ( 2)  credit hours minimum  regarding a professional responsibility course [Standard 303 (a) (1)]  and three (3) credits for a rigorous, course that integrates doctrine, theory, skills and ethics and engages students in performance of professional skills [Standard 303 (a) (3)], the Committee “voted up” the student learning outcomes portions of Chapter 3.  It appeared to this observer that the Committee did not think this would add any burdens to law schools most of which already provide a plethora of simulated skills courses.  Unfortunately, the committee did not take up the issue of the conflation of simulation, in-house and field placement courses under proposed Standard 303(a) (3) or the fact that 3 credits may not be appropriate for a well-supervised clinical course with a rigorous, integrated class component.  Nor did the committee better define and explain what is meant by 303 (b)’s mandate to law schools to provide “substantial opportunities” for live-client clinics or other real-life experiences.  

The committee then went on to discuss one last  “action item” – the law library. The Committee engaged in discourse about the  issue of core collection and reliable access regarding law libraries. 

The agenda for the rest of the day included discussion of Standard 106 (separate campuses) and Standard 107 (variances) and the course of study under current standards 304-306.

Tomorrow, the SRC begins discussion of the proposed revisions to Chapter 509 (Consumer Information) led by  Loyola Dean David Yellen,  and Attracting and Matriculating Students (also Chapter 5) assigned to Erica Moeser, President and CEO of the National Conference of Bar Examiners.  Following this comes discussion of the controversial changes proposed to Faculty Terms and Conditions of employment, led by Standards Review Committee Chair and Dean of Santa Clara University of Law Donald Polden, and the standards regarding Faculty Competence and Responsibilities,  assigned to Professor Lucy S. McGough of Louisiania State University Paul M. Herbert Law School.  The day wraps up with discussion led by  Professor Catherine Carpenter of Southwestern Law School of the standards relating to Bar Passage.       

 More to come…..

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On March 28, 2011, the New York State Bar Association released a letter to the ABA Standards Review Committee expressing concerns over the direction of the latest Standards drafts.  While the NYSBA is pleased that the SRC is taking on these challenges, it knows that stronger language is required regarding outcomes and tenure in order to meet the challenges in today’s legal climate.

On learning outcomes, the NYSBA states:

While the Standards Review Committee is headed in the right direction in this area, these first steps are too tentative. We urge you to strengthen the commitments to outcomes and broadening the skills taught in law schools. Most importantly, as representatives of more than 77,000 practicing lawyers acutely aware of the demands upon law graduates, we urge that all law students need more than a single course in professional skills.

On tenure:

We urge that academic freedom for all faculty, including Deans, librarians and others, remain securely tied to tenure and other reasonably similar systems of security of employment and other institutional rights. Only a system of ex ante guarantees can create the rich culture of free inquiry and robust debate that characterizes American legal education and the American bar.

Click here to read the full letter.

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AALS President Michael A. Olivas on behalf of the Executive Committee of the AALS called for a halt to the review process in order to engage in a discussion of “first principles” and a broader discussion of the aspects of “current American Legal Education that are valuable enough to preserve through the accreditation process. ” The March 28th letter addressed to Hulett H. (Bucky) Askew, the Consultant on Legal Education, expresses concern about the real harm the current proposals will generate including a potential “race to the bottom” as schools find that they can reduce their offerings and services while still remaining accredited.

Click here to read the letter.

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By: David Barnhizer, Senior Associate Research Fellow, Institute of Advanced Legal Studies, University of London; Visiting Professor (recurring) University of Westminster School of Law; Professor of Law Emeritus, Cleveland State University

The essay attached to this post is called “The Purposes and Methods of American Legal Education”.  Critiques will be much appreciated.  Clinical teachers are going through a period of reflection about their role in law schools, and reconsidering how they “fit” in the overall curriculum as represented in the design of the upcoming Clinical Conference in Seattle.  One of the central dynamics in the process involves the effects of “outcome assessments” on the future of law schools and on clinical legal education generally.   In thinking about outcome assessments it is important to consider what outcomes are the most important when the assessment mechanisms are being developed.  What goals should be assigned the highest priority and if they are identified in anything nearing a consensus, can they be accurately assessed in law school, shortly after law school, substantially after law school–or not at all?  In that regard, which of the priority outcomes are those that are best served or achieved through clinical education?

If they can be identified and assessed qualitatively, who controls the evaluation and proof processes?  The bar and the profit seeking testing companies will almost surely move into the outcome assessment market quickly for purposes of market capture.  The problem is that this is likely to result in another set of standardized tests similar to the process that has “dumbed down” elementary and secondary schools that have capitulated to the power of standardized tests that can become obstacles rather than aids to true education.  In the “Purposes and Methods” essay I have attempted to describe some fundamental flaws of traditional legal education and outlined educational goals and methods that seem to me to be ones we should consider when determining which ones ought to be a primary focus.  A core part of the analysis is the idea of methods that are “active” rather than “passive” and this obviously brings into play the “substantive method” of clinical education.  This essay also relates to the analysis offered in “Redesigning the American Law School” that should be available in the Michigan State Law Review by the end of March.  The analysis in “Redesigning” examines the implications of financial, technological, political and lawyer “oversupply” on law schools and the legal profession.  If anyone would like a reprint of the article please contact me individually.

Click here to read the paper.

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These are difficult times on so many levels, I don’t think we can let this week pass without taking note of the bold leadership of Yale Law School, in this as in so many aspects of progressive and innovative legal education, with its new check-out-a-dog-from-the-Law-Library service for law students.  (Faculty apparently are not eligible, or at least not paying attention – see article below).  [Footnote also below.]

One (OK, I) can’t help wondering if spending half an hour with a dog you have no relationship or responsibility for will either build affective competence (I know, the rent-a-dog program is extra-curricular, but then, so were clinics in the beginning) or provide frantic law students with the desired sense of perspective on the comparative importance of grades and exams.  As an ailurophile myself, however, I’m undoubtedly the wrong person to summatively assess this concept.  (No cat would put up with such random encounters; if you were lucky, a rent-a-cat might deign to sleep on your nice warm computer, but hardly condescend to play or cuddle – certainly not on-demand with all comers.)

Yale does seem to be in the vanguard here; no other law schools are identified as offering rent-a-pets, but inquiring minds would like to know if your law school does.  While I for one am not positive that we want to accustom lawyers to finding solace and regeneration quite this way, advocating the half-hour pause to refresh – in some way other than Facebook or Halo — definitely seems salutary and instructive.  A half hour is too short for the classic serious exercise break involving changing clothes and showers – maybe one could get in some light yoga or tai chi at most — but should law schools suggest and try to facilitate, say, a chat or walk with another human being, even a fellow student, as opposed to a dog?  Or provide a game room for a quick set of Bananagrams or ping-pong or Crazy Eights?   Or a mini-kitchen/mini-studio where students (and faculty) could spend twenty minutes baking some cookies or making a sandwich (as opposed to the stress of standing on line for cafeteria food), or work on a water-color or play a piano . . . I’m guessing quite a few schools do offer meaningful mini-respite opportunities and facilities, probably at no more cost than Yale’s new mascot, and it’d be interesting to know what they are.  I see another faculty committee on the horizon: the Restorative Recreation Committee!

In light of the NYT’s new paywall policy, and since it is not egregiously long, here is a fair-use selection of excerpts from the article describing the program:

March 21, 2011

For Law Students With Everything, Dog Therapy for Stress
By TIMOTHY WILLIAMS

* * * *

Yale Law School, renowned for competitiveness and its Supreme Court justices, is embarking on a pilot program next week in which students can check out a “therapy dog” named Monty along with the library’s collection of more than one million books.

While the law school is saying little so far about its dog-lending program, it has distributed a memo to students with the basics: that Monty will be available at the circulation desk to stressed-out students for 30 minutes at a time beginning Monday, for a three-day trial run.

“It is well documented that visits from therapy dogs have resulted in increased happiness, calmness and overall emotional well-being,” Blair Kauffman, the law librarian, wrote in an e-mail to students.

The school is not saying what sort of dog Monty is; what happens to him when school is out of session; or how Monty himself may be kept from becoming overstressed with all his play dates.

* * * *

Monty, according to the memo to students, is hypoallergenic and will be kept in a nonpublic space inside the library, presumably away from those who don’t much like dogs.

“We will need your feedback and comments to help us decide if this will be a permanent ongoing program available during stressful periods of the semester, for example, during examinations,” the note to students reads.

* * * *

Yale Law School has kept its dog-lending plan so quiet that some faculty members were not even aware of it.

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1. As far as I can tell from the article (having not made independent inquiry of Yale), no animal-rights advocates have given the program their imprimatur; I need to check my colleague David Cassuto’s Animal Blawg (http://animalblawg.wordpress.com/) to see whether concerns have been expressed.  Spending day after day of sequential half-hours soothing and reassuring overwrought law students does seem to skirt the verge of cruelty.  (Oh no, that can’t be right, that’s what WE do . . .)  I presume the program’s been approved by the Yale University Institutional Animal Care and Use Committee, although it doesn’t seem to publicly list approved protocols (no kidding!), so can’t be sure about that.

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As you may have noticed, there is now a button at the bottom of posts for “Print with Joliprint”.  This button can be used to print posts without hassle.  The program will convert the post into a PDF (which appears like a newsletter) that can easily be printed.

Simply click on the title of the blog entry to access the individual post’s page, scroll to the end of the post and click the “Print with Joliprint” button.

Try it out!

If you have any issues, be sure to let us know.

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As mentioned earlier today, the ABA Standards Review Committee issued new draft Standards.  The Clinical Legal Education Association (CLEA) just released its comments on the new draft available here.

The response is focused on the changes made to Standard 405 and offers a proposal for re-writing the standard in order address its concerns. CLEA states  “The proposal we attach here will achieve the stated goals of the ABA’s comprehensive review of accreditation standards — assuring educational quality, advancing the core mission of legal education, and providing clarity and precision, while also giving schools the flexibility you believe is important.”

The comment closes with this paragraph:

The legal academy has been much and justly criticized lately for being disconnected from law practice, a particular problem in what has been called ‘the new legal economy.’  The Standards should not exacerbate that problem by intentionally marginalizing precisely those faculty groups that play an increasingly important role in preparing students for the practice of law. We believe our proposed changes to Standard 405 address these concerns and will improve the quality of legal education and the preparation of law students for the practice of law.

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By: Lisa Alexander and Kevin Ramakrishna

A recent article posted on the Albany Government Law Review Fireplace blog discussed practical education versus the Socratic Method.  The post provides a student’s perspective on the different teaching methods and actually supports using the Socratic Method, and sacrificing practical learning to do so. 

On a basic level, I agree with the post.  Theoretical learning does have a place and can be beneficial.  What I do not agree with are the arguments that those who don’t want to utilize or participate in the Socratic Method are mentally weak, or that tradition requires that this Socratic method to be used (especially given that apprenticeships are likely an older and more traditional method).  I thought it might be worth a few minutes to discuss the arguments posited in that post.

The first issue is why, other than “tradition”, the Socratic Method should be maintained.  From what I gather, schools should not value different forms of learning because it only serves the weak minded, and the author supposes that the “weak” would prefer “pure lecture.”  Of course, that isn’t really true.  In fact, one of the author’s own citations will tell you that it is the implementation of the method, not the method itself, which students find insulting and demeaning. James B. Levy, As a Last Resort, Ask the Students: What They Say Makes Someone an Effective Law Teacher, 58 Me. L. Rev. 49,70 (2006).

Additionally, the value of practical education in this post is entirely misunderstood.  There is more to representation than showing up to court in a tie, or knowing what color tie to wear.  Counseling clients is a very different task than understanding a legal theory in a class, but has far reaching ramifications if done poorly.  Responding properly to a judge in an oral argument is not the same as responding to a question in class.  Explaining a legal theory to a partner at a law firm whose profit may be tied to the litigation at hand is a different animal as well.  Perhaps the most important distinction of all, real world ethics are not nearly as cut and dry as they appear to be in the classroom.  Socratic Method style teaching may give a brief taste of these practical skills and scenarios, but there is no substitute for the real thing. If schools can create a more realistic learning environment that will better prepare students for real-life practice then why shouldn’t they?

It is noteworthy that the author agrees that practical education is acceptable in the second and third years of school. Nevertheless, the overall argument seems to dovetail with the proposition that teaching methods require an all-or-nothing approach: either schools teach only the Socratic Method, or only the “practical skills.”  This perspective ignores the possibility of a dual approach.  Why can’t schools teach both theory and practice?  It is crucial that students learn black letter law, the theory behind the law, and the ability to think quickly and creatively.  However, it is also crucial that students know how to apply the law and theory in a real-life setting.  Thus, legal teaching during all three years of law school should focus on developing all of these skills in students.    No matter students’ personal motivations for attending law school, they should be taught both theoretical and practical skills—in other words, an integrated approach to teaching.  This will better prepare them for both their law school and legal careers by teaching them how to think and how to act.

The blog post’s author will be happy to note that the recent Report from the Taskforce on the Future of the Legal Profession states “[w]e do not suggest abandonment of the traditional classroom or a return to the apprenticeship model but rather a more sophisticated model.” 

An individual student’s appraisal and preference for a specific form of education has a place in the debate on legal reform, and the author is certainly not the only advocate of the method. However, the goal of a law school should be to have the best and most prepared students graduate ready, willing, and able to work.  There was a time that law firms were the practical training ground for new lawyers, but those days are largely gone. Thus, it is crucial that we give students the opportunity to develop and hone both practical and theoretical skills before they are thrust out of the bubble of legal education and into the real world of the legal profession.

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Is it time to transform the Langdellian core of legal education?  Despite notable calls for change from respected sources, from the Carnegie Report, Educating Lawyers, to Roy Stuckey et al.’s Best Practices for Legal Education, the traditional vision of law as an academic science, taught by iconic experts out of casebooks carved up by subject matter, continues to dominate.  Teaching students to “think like a lawyer” sufficed for many decades, even if students were not fully prepared for the practice of law.  That partial preparation is less satisfactory, given the recession and the apparent scarcity of jobs.

An alternative successful educational narrative exists that aligns more closely with training students to improve various skill sets – engaged education.  This term has differing meanings, but for law school, it connotes substantial change in both the form and execution of the education and often includes an active or experiential component, from a field trip, to meetings with the professor, to course-related independent projects.  Some changes include: teaching less around the coverage of substantive material and more for achieving student competencies; focusing class and outside time on a series of student deliverables with a high degree of complexity and frequency, so students are challenged and involved, doing and experiencing outside the classroom as well as in it, all on a regular basis; enlisting students in sharing the responsibility to learn as an on-going process, and not as a sprint just before final exams; and evaluating students by at least several benchmarks, and not just a single, summative final examination.

While what is being proposed here could be called engaged learning, the learning is directed, with specific outcomes sought, so the active and experiential tasks are better described as engaged education. The methodology is designed to enhance specifically framed educational outcomes, facilitate the development of competencies and result in an education that bridges theory and practice, better equipping students for the real-world on the day after their graduation.

So what would this look like? First, it would start right away in the first year of school, especially if it is to affect and reach the core of the educational process.  Without primacy, the message sent will be that experiential, engaged education is secondary to case analysis. Second, the level of engagement would be adjusted to fit the particular context, including the nature of the school, its location, and its students.  Some schools might want engaged components or modules built within courses; other schools might want a single course focusing on engaged learning each semester.  Third, engagement would vary from course to course and year to year.  For example, in a first year Criminal Law course, there could be several engaged or active learning modules.  Students could be required to observe a criminal court case, take a guided tour of the local jail, interview a criminal defense lawyer or prosecutor, or participate in forensic evidence demonstrations.  Property law, on the other hand, could have a single engaged component, such as finding an easement in the community or creating a land sale contract.

The concept of engaged education is accepted and promoted in business and other graduate schools and undergraduate domains, among other educational venues. Should legal education at least check it out, especially as market forces and globalization keep pushing adaptation?

See more like this at: Center for Engaged Learning in the Law

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