Best Practices for Legal Education

Back in June of 2009, an ABA summit was held to address diversity in the legal profession.  A final report with recommendations has been released.  Professor Margaret Montoya, one member the ABA’s Legal Scholar Team, and professor at University of New Mexico School of Law, has drafted the following summary of the report.  The full report can be read here.

Several racial and ethnic groups, sexual minorities, and lawyers with disabilities continue to be vastly underrepresented in the legal profession. From a racial/ethnic perspective, Whites constitute about 70% of working people over age 16, yet they represent 89% of all lawyers and 90% of all judges, according to 2009 census data. Each year, the numbers of lawyers with disabilities and openly gay, lesbian, bisexual or transgendered (GLBT) lawyers increase slightly, but their respective percentages remain at less than 1%. For example, in 2009 NALP (Directory of Legal Employers) reported that only about 47% of law offices reporting data had even one openly GLBT lawyer, and most are clustered in just four large coastal cities. Most law offices do not collect data on disabilities, but the 18% that do report data (about 110,000 lawyers) identified only 255 lawyers with a disability.

This Report devotes its pages to specific recommendations for increasing diversity in the different sectors of the profession, namely law firms and corporations, the judiciary and government, law schools and the academy, and bar associations. To provide a conceptual and normative context, the Report articulates and re-emphasizes four rationales for creating greater diversity within the legal profession and draws attention to similar diversity efforts being made and reports being issued in the medical profession. Specifically, here are four compelling arguments for diversity in the legal profession:

The Democracy Argument: Lawyers and judges have a unique responsibility for sustaining a political system with broad participation for all its citizens. A diverse bar and bench create greater trust in the mechanisms of government and the rule of law.

The Business Argument: Business entities are rapidly responding to the needs of global customers, suppliers, and competitors by creating workforces from many different backgrounds, perspectives, skill sets, and tastes. Ever more frequently, clients expect and sometimes demand lawyers who are culturally and linguistically proficient.

The Leadership Argument. Individuals with law degrees often possess the communication and interpersonal skills and the social networks to rise into leadership positions, in and out of politics. Justice Sandra Day O’Connor recognized this when she noted in Grutter v. Bollinger that law schools serve as the training ground for such leadership and therefore access to the profession must be broadly inclusive.

The Demographic Argument. The U.S. is becoming diverse along many dimensions and we expect (and hope) that the profile of GLBT lawyers and lawyers with disabilities will increase more rapidly. With respect to the Nation’s racial/ethnic populations, the Census Bureau projects that by 2042 the U.S. will be a “minority majority” country.

In February, 2010, the Journal of Academic Medicine issued a major report by Drs. Louis W. Sullivan and Ilana Suez Mittman on the state of diversity in the health professions. Typically, the rationales for diversity in medicine have emphasized that minorities are more likely to provide service to minority communities, that minorities improve communication, comfort level, trust, and decision making in the patient-practitioner relationship, and they improve the quality of advocacy in health policy reform. The evidence is compelling that a diverse medical profession contributes to greater equity and the elimination of health disparities. However, Drs. Sullivan and Mittman observe that traditionally the medical profession has defined the role for health professionals from underrepresented groups as a narrow and circumscribed one that focuses almost entirely on the needs of minority communities. They urge that future efforts re-frame the arguments and re-envision opportunities for minority health professionals to excel and to lead within the larger society. This Report’s recommendations share that aspiration and are grounded in the conviction that benefits from diversity flow to the entire society.

This Report’s recommendations reflect and incorporate the multiple experiences, false starts, insights, frustrations and new beginnings that represent the many different ways that diversity works within the different sectors of the legal profession. Each page incorporates the input of dozens of voices and localities; each page summarizes and synthesizes this multi-vocal and multigenerational dialogue about transforming the legal profession by making it more inclusive. The overarching message is that a diverse legal profession is more just, productive and smarter because diversity, both cognitive and cultural, often leads to better questions, analyses, solutions, and processes.

The Report includes a set of Emerging Issues, identified collaboratively by the scholars and the Practitioner Working Group members. These ten issues, culled from a longer list, provide short descriptions of new developments that will affect the ways in the legal profession responds to the challenges posed by understandable demands for inclusion, more complex personal and group identities, and a society under stress from increasing inequalities and international competition.

This Report is not prescriptive and is not a checklist of to-do’s for the profession. The Report is a tool to challenge assumptions, provoke curiosity, generate conversations, enable dissenting voices, and encourage new partnerships and coalitions. To echo President Obama, our task is to create “a more perfect union.” This Report documents the most recent step taken by the American Bar Association to do so.

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Kudos to the NYT for focusing on the teaching, academic freedom rights and public service mission of law schools and their clinics.

http://www.nytimes.com/2010/04/12/opinion/12mon3.html?emc=eta1

NYT Editorial

“First, They Get Rid of the Law Clinics

Published: April 11, 2010

Law school clinics give students real-world experience in advocacy and provide underserved communities with legal representation. Increasingly, they are being attacked by business interests, which are often the targets of clinic lawsuits.

Maryland’s lawmakers have been wrestling over a bill that threatened the funding of the University of Maryland’s law clinic if it did not provide more information about its clients. The clinic has come under assault after filing an environmental lawsuit against Perdue, a powerful force in the state, charging that chicken waste from farmers who contract with the company is polluting Chesapeake Bay. Similar campaigns are being waged across the country, as Ian Urbina reported in The Times recently

In Louisiana, the powerful chemical industry is unhappy with the Tulane Law School clinic, which has sued to increase air quality enforcement in the state. The State Legislature is considering barring clinics that receive public money from suing companies or government agencies for money damages, unless the Legislature gives them an exemption. In New Jersey, a real estate developer sued a state-financed law school clinic at Rutgers University seeking its internal documents, after the clinic sued to stop the developer’s planned strip mall.

Attacks like these are a direct interference with law schools’ freedom to decide how to educate students. Jamin Raskin, a law professor at American University and a Maryland state senator, compared it to “going into somebody’s class and trying to change their syllabus.”

Extracting information from clinics about the people they serve and the work they do also threatens the clinics’ professional relationships with their clients.

The president of the American Bar Association, Carolyn Lamm, urged “those who would undermine clinical law school programs to step back and remember that the rule of law cannot survive if pressure prevents lawyers from fulfilling their responsibilities to their clients.”

Law school clinics often provide the only legal assistance available to poor people. Some powerful interests may not like that, but it is critically important work.”

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On March 15th,  2010,  AALS President H. Reese Hansen and Executive Director Susan Westerberger Prager submitted a letter to the ABA’s Standard Reviews Committee identifying their concern about proposed changes to the accreditation standards for law schools and announcing the formation of a special AALS Advisory Group chaired by GW Professor Thomas G. Morgan.   Other members of the committee are listed in the letter which I will be posting at  www.teachinglawstudents.com.

In my opinion, the AALS should be applauded for forming this Advisory Group and focusing on common concerns for all its member schools and their faculty.   The AALS letter rightly notes that, as the ABA proposes to move to an learning outcomes- based  framework,  there is potential “in this period to change the standards in fundamental ways without first adequately developing a full understanding of the implications intended and unintended.” (March 15th letter).  The AALS letter proceeds to specifically address the concern that security of position for fulltime faculty members could be at risk and to reaffirm the importance of a  framework which depends on a “full time faculty  dedicated to teaching and advancing knowledge about law and legal institutions where the faculty plays  significant educational policy roles.” 

Those of us who have urged legal education reform do want a full exploration of the intended and unintended consequences.   For example, better use of adjuncts and practioners in educating law students does not mean that we should do away with a professional faculty whose primary and fulltime commitment is to legal education.   Nor does a focus on an outcomes framework mean that inputs can ever be used to encourage results.  In fact, there may be times when,  in order to  reach outcomes meaningfully,  you need to mandate appropriate inputs.   For example,  it may be difficult or unrealistic to assess whether students have real and multiple opportunities  to practice professional judgment and understand the nuances of  professional identity without creating some input incentives for law schools to offer clinical experiences.

I am glad to see that the AALS has formed this Advisory Group and appointed a  number of widely respected individuals to that group.  We should all follow its work closely.

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Professor Barbara Schwartz recently posted this query on a clinic listserv and  would like feedback:

“I am co-chair of the curriculum committee this year, and we are in the process of finalizing a new mandatory skills requirement to comply with ABA accreditation standards.  I have a question that folks on this list might be able to answer.

 As part of the committee’s work, we surveyed all our faculty for their opinion on whether courses they were currently teaching would comply with the proposed rule (equivalent 1-hour credit requirement for instruction time (14 hours); experiential component;  assessment).  Two responses have created a question—our judicial externship program and a supreme court seminar in which students simulate being a clerk/justice and draft an opinion on a case actually pending in SCOTUS.  The externship supervisor believes that her program qualifies either because the students “draft” written work for the court which is assessed by her (we have included legal drafting as included within the list of skills) or because the students are learning the skill of being a judicial clerk.  Similarly, the instructor in the seminar believes that the students are “drafting” opinions.

 I for one don’t believe that opinions or memoranda to a judge qualify as “drafting”, but we currently do not have a definition that distinguishes between legal drafting and other legal writing like briefs, law review articles and seminar papers.  Anyone have such a definition?

 Anyone have experience with these issues…in your own skills training policies, how have your schools handled judicial externship programs?

 I would be glad to see any written policies regarding mandatory skills training that you would be willing to share.

 Thanks.

 Barbara A. Schwartz

Clinical Law Professor

University of Iowa College of Law

Iowa City, Iowa 52245

barbara-schwartz@uiowa.edu

319.335.9023

FAX: 319.353.5445

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We know that many law schools are engaged in making exciting, forward-looking changes to their curriculums and methods of instruction.  Unfortunately, there is clear evidence that some schools are just not interested in improving their programs of instruction and the ABA is not currently interested in forcing them to do so.

When ABA Accreditation Standard 302(a)(4) was adopted, many people thought it would lead to fairly rapid and eventually significant changes.  It says that “[a] law school shall require that each student receive substantial instruction in other professional skills regarded as necessary for productive and responsible participation in the legal profession.”

However, the “Consultant’s Memo on Standards Guidance” which was published on page 4 in the Winter, 2010, edition of the Syllabus (the newsletter of the ABA Section on Legal Education and Admissions to the Bar), makes it clear that the current version of Standard 302(a)(4) will not bring about any significant changes.

The Consultant’s memo explains the minimum that law schools must do to comply with the Standard, as interpreted by the Accreditation Committee.  It is obvious that the Accreditation Committee is desperately trying to persuade recalcitrant law schools to provide some professional skills training, but it has lowered the bar so much that students who are enrolled at schools that only meet that low bar will not be well served.

The  memo does make it clear that the Standard means that all students must receive some professional skills instruction.  “[T]he fact that 98 percent of the student body takes skills course is not sufficient; every student, as a requirement of graduation, must receive substantial skills instruction.”   However, the memo then explains that the “substantial skills instruction” requirement can be satisfied, inter alia, by adding a substantial counseling and negotiating module to a first year legal writing course, or by requiring students to take a one credit course in any professional skill, including for example, a one credit component of “a substantive course that includes substantial skills instruction, e.g., a corporations class where each student is required to draft substantial legal documents that are assessed by the instructor.” 

If they were not true, these previously secret and unpublished “interpretations” by the Standards Review Committee would be laughable.  I think it is a fine idea to have students draft documents in a Corporations course, but I do not think that by doing  that, and nothing else, students would be receiving substantial instruction in the “professional skills generally regarded as necessary for effective and responsible participation in the legal profession.”  I doubt that the members of the Accreditation Committee really think so, either.

Again, I view the “guidance” memo as evidence that some schools are not interested in improving their programs of instruction and that the ABA’s Accreditation Committee is not willing to hold their feet to the fire.  Hopefully, the ongoing efforts of the Standards Review Committee to draft outcomes-focused Standards will raise the bar again and, wishfully, the Accreditation Committee will not dilute their impact via secret interpretations that are contrary to the clear meaning of the Standards.

Meanwhile, I extend my best wishes to those schools that are trying to improve your programs of instruction for the welfare of your students.

Roy Stuckey

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Participants in the Spring Workshop of the National Institute for Teaching Ethics and Professionalism has spent the past two days discussing how law schools can help students to respond to the economic crisis.   One of the exciting presentations from the program was by Fred Rooney of the Community Legal Resources Network of CUNY Law School.  He discussed a concept of “The Longitudinal Law School” — a law school’s continuing obligation to its graduates.  He described two programs of the CUNY  Community Legal Resources Network –  “a collaborative that supports CUNY Law School graduates as they work to set up and run solo or small-group practices devoted to serving pressing needs of the poor and disadvantaged in communities that are underserved by lawyers.”  Components of the program include the “Launchpad for Justice” program in which new graduates have an opportunity to provide critical legal services and continue their professional development in the time between their graduation and their admission to practice.   A second program, the Incubator for Justice, which “trains CLRN members, over an 18-month period, in basic business issues such as billing, record-keeping, technology, bookkeeping and taxes while, at the same time, facilitating Incubator participants’ involvement in larger justice initiatives and in subject-based training in immigration law, labor and employment and other topics that will arise continually as these attorneys build their practices.” 

As law schools are called upon to increasingly broaden their objectives, the concept of an ongoing commitment to the education of students beyond graduation is an important and often overlooked aspect of best practices.

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In her new article, Professor Judith Wegner of UNC School of Law, addresses:  “the implications of the recent economic downturn, the market for law graduates’ employment, and implications for legal educators. The article disagrees with the premises of a student author who contends that legal education should increase reliance on adjunct faculty and reduce emphasis on faculty scholarship in order to reduce student costs. The article assesses such proposals and contends, instead, that the most fruitful response to the current economic downturn would be to bifurcate the bar examination (in order to keep law schools honest, allow law students to know where the stand and address deficiencies, and allow those unsure of their commitment to legal education to take time out and work before returning to complete law school). The author is a legal educator who was involved in the Carnegie Foundation’s recent study of legal education (Educating Lawyers).”

The article is entitled, “More Complicated than We Think: A Response to Rethinking Legal Education in Hard Times: The Recession, Practical Legal Education and the New Job Market,” and is part of larger set of essays forthcoming in the Journal of Legal Education. 

To read Professor Wegner’s article, click here.

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Somehow I think this post should have preceded yesterday’s!  The National Jurist today claims that “The average law school has lowered its faculty-to-student ratio by 22 percent over the past 10 years ” accounting for “48 percent of the tuition increases” in that time period.

What to make of the rise in faculty size?

Does the claim fit your experience?  Has your faculty size grown?  How much of that growth is attributable to Best Practices related curriculum shifts and how much to other areas?

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LAW SCHOOLS
Holding schools accountable
ABA is pushing educators to prove their law graduates can cut it. by Karen Sloan

February 22, 2010

When 3,500 legal educators convened in New Orleans for the Association of American Law School’s annual meeting in January, one topic dominated the conversation: the American Bar Association’s attempts to add “student learning outcomes” to its accreditation standards.

One session on the issue drew 400 attendants, and debate spilled out into hallway conversations and cocktail hours throughout the five-day conference. At a deans-only meeting, top administrators expressed both support and worry about basing law schools’ accreditation on what students learn.

“If the ABA’s goal was to get people’s attention, it has worked,” said Reese Hansen, a professor at Brigham Young University J. Reuben Clark Law School and president of the American Association of Law Schools (AALS).

The buzz over Continue reading →

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As we have been implementing Best Practices and Carnegie reforms, many of us have created or have made creative use of  coursebooks which facilitate Best Practices learning and teaching.     One of my colleagues will be teaching Contracts for the first time this fall,  she has extensive practice experience and has excelled at clinical supervision and clinical pedagogy.   What suggestions does the Best Practices community have as to her selection of a coursebook? Have you identified focused learning goals and outcomes?  How have you provided formative assessment?  How have you assessed for grading purposes?  Do not hesitate to “toot your own horn” or in this case – your own book!

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From Kim Connolly and Larry Spain:

The February, 2010 issue of the CLEA Newsletter has been published and posted on the CLEA website, http://www.cleaweb.org.  It can be found under the What’s Happening Tab. This will also give you an opportunity to explore the new CLEA website.  which we are calling 1.0 for now, because it is as promised a work in progress. Over the coming weeks we will be adding content, including a photo gallery with all of the photos you submitted (even if we don’t use them elsewhere in the site). We will still accept more photos, so send them in if you have them! 

After this visit, plan to come back and visit the site as we move forward to better serve our members and the clinical community through this new platform.

Have a great week, all…

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A new article just posted to SSRN examines Best Practices in the field of land use law.  The article, “Practically Grounded: Convergence of Land Use Pedagogy and Best Practices” is forthcoming in the Journal of Legal Education. (One can downloand at: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1540713). 

The authors (my colleague Dean Patricia Salkin from Albany Law School and Professor John Nolon from Pace Law School) are among the most prolific land use law scholars in the nation.  I am delighted that their current scholarship venture will add to the growing body of literature on Best Practices as it offers unique perspectives and ideas that we can all learn from.  Even though I have no experience in, nor have ever taught,  land use law,  I found the article contained lots of little gems and good ideas for those of us who teach in other subject areas or who are collaborating with colleagues on Best Practices initiatives.  

Salkin and Nolon’s  article begins with an examination of the changing dynamics in the field of land use and sustainable community development law, explaining how this provides a unique opportunity to rethink the way in which faculty prepare law students to practice law in this area. The authors explain how this paradigm shift converges with the growing momentum of the Best Practices movement, and observes that a “perfect storm” is present and a unique opportunity exists through the application of many “Best Practices” concepts for land use law faculty to lead the academy in reinventing curriculum and teaching strategies to better prepare students for the practice of law.

The article also reviews the history of the Best Practices movement, and makes the case as to why land use should be the “poster child” for best practices. This is followed by a discussion of an empirical survey conducted by the authors in 2008 of land use law professors that examined, among other things, the opportunities to apply Best Practices to the subject of land use law. The article offers innovative examples of teaching methods that can be effectively utilized within the confines of the traditional classroom, using the land use law course as a model, as well as an example of how the land use law course can be used across the curriculum as a Best Practices capstone experience.

 Again using the content of the land use course, the article concludes with the observation that the traditional approach to teaching can be converted into exciting opportunities that engage student learners, stretch the limits of student creativity, instill a sense of professionalism, and, consistent with the findings and recommendations of the Best Practices Report, prepare students to be more effective attorneys.

 The authors welcome and invite discussion of their article here among those of us interested in exploring Best Practices.

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The Need for Scholarship About Law Teaching and Learning

When we teach or assess differently, we often wonder: does this actually make a difference?  Does it improve student learning?  If so, does it improve all students’ learning, or does it only help a particular segment of students?  What do students think about this different methodology?  Does it motivate them to work harder and learn more deeply?    If my school has a “performance gap” between students of color and white students, or between men and women, do these different methods lessen or eliminate that gap?  All those questions, and more, can be explored empirically.  

SALT Website Identifies Resources For Scholarship, Especially Empirical Scholarship, on Teaching and Assessment Issues

One significant problem  is that few of us have had any social science training and thus we do not feel equipped to engage in an empirical scholarly exploration of the impact of our teaching or assessment.   Yet hard data is a very persuasive tool as we try to effectuate change.  For these reasons, The Society of American Law Teachers [SALT] has developed two resources for faculty members who want to engage in empirical research involving the “scholarship of teaching and learning.” 

 On the SALT website, go to “SALT at Work” and click on “Issues in Legal Education”.  There you will see a link to a list of academics who have agreed to be social science collaborators.  These academic collaborators will help you design, implement and interpret an empirical study involving law teaching and assessment issues. 

Also at the same website, you will find a  link to an “assessment working group” list serv.  That list serve  is comprised of legal academics who want to support each other in doing teaching and assessment research, especially empirical research.  It’s a great group of people who will help you work through issues in planning, developing or writing articles about your teaching and assessment methods, and is especially a good resource for those delving into empirical research.  

In sum, resources exist to help you as you begin to explore the scholarship opportunities that arise simply from your every day teaching and assessment work.

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