The Best Practices for Legal Education Blog would like to extend a special thank you to the Clinical Legal Education Association (CLEA) for their dedication to this project.
On behalf of Andrew Henderson, PhD Candidate, ANU College of Law, The Australian National University
Developing a relationship with students in an online setting is a challenge. There are the problems with technology (‘You’re muted!’) and the usual interruptions (‘I’ll come and watch Paw Patrol in a minute’). But all those usual tricks we use as law teachers to ‘read the room’, especially at the start of the semester, don’t quite work.
One of the ways I have often got out ahead of student satisfaction in face-to-face classes was to have an explicit conversation about expectations. But not just the standard, finger-wagging ‘you will do the reading’ diatribe. I ask students specifically about their expectations of me.
I was an elementary school teacher. I often wondered why, when I moved to law school, law teachers didn’t do the same thing. Especially when they’re subject to a much more explicit student evaluation process.
But, by the time the comments appear, it’s generally too late to do anything about a lot of them. Assessment tasks were locked in with the faculty board months or even years ahead. And lectures are ‘done and dusted’.
Getting that feedback earlier on would, of course, have been valuable. And in an online environment, grabbing some of those expectations can be even more useful given that both students and teachers are doing something new. Some of the comments might even explain why law students were really engaged. They might also explain why they performed poorly or didn’t participate. It might have had nothing to do with you at all! But it will also tell you about things that you might have been able to do, or stop doing if you had known earlier.
But how can you do this in an online environment where no one really wants to sit in a Zoom room for more than an hour? And how can it be done to preserve a degree of sincerity and openness, especially in a first meeting?
Maybe one of the simplest ways is to use a shared document or even create a Google form with some simple questions. The settings for Google forms can be adjusted so that the respondent doesn’t have to enter their email. Responses are helpfully collected anonymously in a single Google Sheet that can be reproduced and published.
While the process of collecting expectations in the classroom was valuable, I have actually found that collecting them through an online tool even more useful. Students would appear to be happy to express themselves more freely and openly. They will often talk about their expectations and where they believe they need help with aspects of the content or skills development.
For example, students have asked for specific things to be covered in more detail because they aren’t sure they understand them. Some have asked for specific advice about particular skills, like essay writing. Some have even expressed their concerns about being called on but also suggested how I can help them manage that anxiety so that they can actively participate.
Overall, it has meant that I have been able to adapt my teaching and the content to respond specifically to students’ interests and needs. Put another way, students have been actively engaged in the development of the course.
Setting out expectations at the start of the semester can be a valuable process. From a selfish perspective, it can give an early ‘heads up’ things that can be addressed before student evaluation time. But, the more valuable outcome has been that my teaching overall has improved. Using these online tools has meant that expectations are captured accurately, clearly communicated and expressed in a way that has further enhanced my teaching.
We can all recall the stress, fear, and worry that accompany taking the bar exam. About half of us also were anxious we would have to manage our period in the middle of this awful two-to-three-day ordeal. Bar examiners across the country have made this prospect far more daunting than it needs to be by not treating menstruation as the natural biological process that it is.
Without proof of any test-taker having ever cheated using a tampon or pad, some states have chosen to stigmatize and potentially penalize people who have their periods with draconian policies prohibiting bar examinees from bringing their own menstrual products with them. Other states have failed to adopt or communicate clear policies on the subject, increasing test-takers’ anxiety: one should not have to waste time researching the Bar Examiners’ hard-to-find policies or calling their offices for answers—which may, or may not, yield consistent information.
The harm here is four-fold: 1. It is wrong to make test-taking conditions more challenging for people based on the fact they menstruate; 2. It is wrong to limit test-takers to random products selected by Bar Examiners that could put test-takers’ health and menstruation management at risk; 3. It is wrong to exclude text-takers from any menstrual products simply because they do not use the women’s restroom; and 4. It is wrong to convey the harmful message that all people who menstruate are untrustworthy and do not belong in the legal profession.
Some states, including Texas and Pennsylvania, prohibited exam-takers from bringing in their own menstrual products, offering to provide a limited and unpredictable set of products in the women’s bathroom. (After much advocacy, Texas changed its rule for the September exam, though it is unclear if this is a permanent change.) This does not solve the problems these states created in the first place by banning test-takers from bringing in their own products. People who menstruate need their own products because menstrual products are not “one size fits all”: menstruaters require different sizes and levels of absorbency in their products to best fit their body and menstrual flow.
Use of the wrong size product can lead to everything from pain and discomfort to toxic shock syndrome (if too large) and time-consuming, uncomfortable, and disruptive leaks (if too small). Further, some individuals require hypoallergenic products to protect against allergic reactions. If not provided, applicants may experience vaginal itching or other problems caused by using allergen-containing tampons or pads inside or adjacent to their bodies. All of these consequences are awful enough on their own; here, they create an unconscionable risk of derailing exam performance.
In addition, by limiting test-takers from bringing in their own products and then providing products only in the women’s restrooms, Bar Examiners relegate transgender men and nonbinary persons who may menstruate, and who may use the men’s restrooms or all-gender restrooms, to having no access to menstrual products during the bar exam.
Other states allow test-takers to bring their own products, but require them to be packaged in a clear plastic bag—with some states mandating that the product be unwrapped. This last requirement makes no sense: the wrapper both keeps the product hygienic before being inserted into or placed adjacent to one’s body and provides an efficient way to safely dispose of used products, reducing janitorial staff’s exposure to bodily fluids. Further, removing the wrapping exposes the adhesive on the bottom of some pads, rendering them practically useless when the menstruator tries to unstick them from the clear plastic bag.
As much as we want to destigmatize menstruation and eradicate the embarrassment and taboo of being seen with a tampon or pad, it remains an invasion of privacy to require test-takers to carry their products in a clear plastic bag, revealing to a proctor (and possibly a classmates, colleagues, or future opposing counsel) that one has or expects to get their period during the exam. (One North Carolina bar exam test-taker reported that a proctor asked her if she “really needed those” while inspecting her plastic bag of menstrual products.) Finally, this intrusion is even more painful for, and potentially outs, transgender men and non-binary law graduates who may not be public about their biological sex. It may even set them up for bigoted harassment—during the biggest exam of their lives.
Other states allow test-takers to bring their own products and do not require them to be carried in a clear bag—but, they must check them with a proctor or retrieve them outside the exam room before heading to the restroom. This “solution” means that a menstruating person with will have to take vital time away from the exam (or a break between sections of the exam) to obtain their menstrual products before using the restroom. This “time tax” is as unacceptable as the other approaches described above.
At least some states treat people who menstruate without such bizarre suspicion, allowing them to bring in and keep their own products with them during the exam, and use them as needed during the test—without having to ask a stranger for their own personal possessions. To date, there have been no known accusations of test-takers trying to do the impossible: write helpful information on a pad or tampon to give them an edge on the exam or smuggle in written answers inside the product’s wrapping.
The lack of uniformity of equity-based rules permitting access to one’s own menstrual products is unacceptable and must be changed. Thankfully, in the age of social media, law graduates have taken the lead on this advocacy, sharing the hurdles they are facing on social media and asking state Bar Examiners to eliminate these outrageous rules, largely under the #bloodybarpocalypse hashtag.
Once we saw their posts, the three of us, working with fantastic former clinic students of Fordham and UDC, began advocating that all state Bar Examiners adopt better menstrual products policies. We drafted a letter to the National Conference of Bar Examiners (NCBE)—co-signed by over 2800 law professors, law students, law school graduates, and lawyers in under 24 hours. We also sent letters to Bar Examiners in each state that administered an in-person July bar exam and did not have a clear, acceptable policy in place. All of these efforts led to some quick changes.
The NCBE contacted state Bar Examiners and informed them that menstrual products were not included in the NCBE’s “prohibited paper” category and that test-takers should be able to bring in their own products. The press started asking questions of the state Bar Examiners. And state Bar Examiners began changing or clarifying their policies, with some confirming to examinees that they could bring personal menstrual products to the exam. For instance, West Virginia Bar Examiners insisted that they permitted products in the exam room, even though their website said differently. Texas state Bar Examiners changed their policy from not permitting products to permitting them at its September exam. (The state has issued contradictory statements, however, about whether this change is permanent.)
This positive change is not, however, uniform: even those states that have adopted equitable policies must be monitored to ensure they are adopting best practices. In our efforts to get accurate and honest information from state Bar Examiners across the country, it has been deeply disconcerting to learn how many jurisdictions are silent on whether examinees may bring in their own menstrual products; have informal policies that contradict written statements about what items are allowed in the exam (e.g., not listing menstrual products in the list of items test-takers can bring in, but informally allowing them); or have stubbornly held onto their recalcitrant policies.
Equally unacceptable, many Bar Examiners will not share the documentation that they say embodies their policies (e.g., generic letters to test-takers informing them what they can and cannot bring into the exam; postings on their web sites behind a security wall). Without this proof, there is no accountability and the true practices of these states remain unknown.
As we reach out to jurisdictions administering in-person exams in the coming months, our demands are clear: Bar Examiners must issue explicit policies permitting examinees to bring their own menstrual products in to bar exams, in an opaque container or on their person, and to publish these policies on their websites. Other bar-related policies that can have disproportionate effects also must be changed. For instance, examinees needing to pump their breastmilk must be given ready accommodations and bathroom access must not be limited as it affects both pumpers and menstruators.
To learn more about all of the advocacy efforts in this area, check out Menstrual Equity and the Bar Exam: Round Up of Op-Eds and Other Media Coverage on the Feminist Law Professors blog and follow the hashtag #MPandTheBar. If you want to get involved in this work, let us know. And no doubt other activists working on the pumping and bathroom access issues would welcome assistance too. There is, unfortunately, plenty of work to be done.
In an effort to encourage law schools across the country to take affirmative steps to promote justice, eradicate racism, and support their law school communities in light of pervasive injustices, SALT has organized a virtual series featuring law school teachers sharing their expertise on how to educate the next generation of lawyers, support students of color, and dismantle structural inequality and racism in the United States. SALT is hosting monthly panel discussions on ways to combat racism and promote equity in law school. The first webinar, Incorporating Anti-Racism Frameworks into Core Law School Classes, will be held on July 30, 2020. The webinar will be recorded and made available on the SALT website.
THURSDAY, July 30 at 3:00 pm –Incorporating Anti-Racism Frameworks into Core Law School Classes Register Here:https://bit.ly/2Oewk1K Submit Questions Here: https://bit.ly/2ZOrMFP
Tiffany Atkins, Elon University School of Law, Dorothy Brown, Emory University School of Law, Jane Cross, NOVA Southeastern University College of Law, Hugh Mundy, UIC John Marshall Law School
NOTE: We are collecting questions for the panelists in advance. Please submit your questions here: https://bit.ly/2ZOrMFP
Upcoming Monthly Webinars: Always at 3:00 pm Eastern August 21: Promoting Equity and Inclusion in Online Teaching September 18: Racialized Trauma and Fatigue Among Academic Activists October 16: Anti-Racist Hiring Practices
Please share your reflections on the July webinar here.
The Clinical Legal Education Association (CLEA) welcomed 475 clinic faculty from around the country to its 2020 Virtual Conference, July 21-23. CLEA called on clinic faculty to join together virtually this unprecedented moment. To view the conference program guide, pleaseclick here. To view the poster presentations, pleaseclick here.
CLEA’s call for proposals drew a large response from clinic faculty around the country. The call:
Streets are filled with protesters rising up in response to horrific and ongoing systemic racism manifested by the continued attack on black and brown lives, and the COVID-19 pandemic has changed our daily reality. This has and will impact our professional and personal lives in critical ways. We are called upon as clinical faculty to reflect on and approach our pedagogy and practice differently. We are in new territory trying to determine the best way to run our clinical programs with the need for all or some of our teaching, services, and advocacy to be delivered remotely. We must re-examine the best way to teach about racial injustice and leverage clinical resources to take action to bring about real, lasting change. With these challenges and the inability to connect in-person, it is our goal to build community, draw on our collective wisdom, and provide a forum for discussion.
The virtual conference included plenaries, affinity group discussions, and larger discussion formats. The opening plenary,Facing New Suns: Futuristic Lawyering for Black Liberation (“There is nothing new under the sun, but there are new suns.” – Octavia Butler) brought together Rasheedah Phillips (Featured Speaker) and Norrinda Hyat (Rutgers).
The Black Lives Matter protests that took place in the days and weeks following the public murder of George Floyd signal a remarkable shift in the landscape of modern social movements. A New York Times article, published on July 3, remarked that at the peak of the protests, on just one day June 6, half a million people turned out in nearly 550 places across the United States. And, also, that an estimated 15 million to 26 million total people in the United States have participated in demonstrations over the death of George Floyd and other black people since May making this “the largest movement in the country’s history.”
Some of our students and clients have now spent months in the streets advocating for an end to the status quo, a status quo that is strengthened by the curriculum and structures of most, if not all, law schools. Central to these calls are a rejection of incremental reform. In place of conformism, the protesters are calling on America to imagine, in real time, a world without police, prisons, war, or capitalism. The writings of Angela Y. Davis remind us that the abolition of systems of oppression is both a negative and positivistic project. As for the latter, the protestors call for affirmatively imagining a country with healthcare, housing, education and freedom for Black and Latinx people.
As teachers of and lawyers for many of the individuals and organizations marching, this moment calls for clinicians to “decolonize our imaginations,” as Walidah Imarisha sets out in the introduction to the Afro-futurist collection of short stories Octavia’s Brood. This plenary employs the tool of speculative fiction and the lens of Afro-futurism to motivate in each of us the process of “decolonizing” clinical legal education and clinical practice. Afro-futurism has been described as “an art form, practice and methodology that allows black people to see themselves in the future despite a distressing past and present.” Radical speculative fiction explores the connections between art and movements for social change. Speculative fiction is not new. W.E.B. Du Bois’ short story, The Comet, imagines a post-apocalyptic world in which the sole survivors are a black man and a white woman. In 1972, the MacArthur ‘genius’ Fellow Ishmael Reed wrote the canonical Mumbo Jumbo. The modern godmother of this genre, Octavia Butler, wrote her first of 13 books imagining a better future for black people in the diaspora, Patternmaster, in 1976. Radical speculative fiction’s application in the law is also not contemporary. In 1992, Professor Derek Bell merged radical speculative fiction and the law in his now iconic essay Space Traders. Following in the footsteps of DuBois, Butler and Bell, by looking to the creative, this plenary queries the role of clinical legal education in facilitating the future our clients are imagining and urges us to expand our notions of what is possible to stand in solidarity with our students, the protesters and organizers for black liberation through our teaching, advocacy and scholarship.
The second panel, Black Lives Matter and the Future of Clinical Legal Education, included: presentations by: Desiree Mims (Black Organizing Project), Alexi Freeman (Denver), Nicole Smith Futrell (CUNY), and Renee Hatcher (UIC John Marshall), Donna Lee (CUNY), Oscar Lopez (East Bay Community Law Center)
Finally, the closing panel, Top 5 Tips for Teaching Clinic Online, featured a presentation by Michele Pistone (Villanova)
Thoughts, discussion, and ideas for further engagement from the CLEA virtual conference are welcome!
Most universities plan to hold classes in person this fall despite the fact that the coronavirus is spiraling out of control in the US, unlike most other countries. Unfortunately, our political leaders in the federal government and many state governments are not taking effective action to control the virus. Indeed, many of their policies are likely to spread the disease even more. Under these circumstances, it seems likely that universities holding classes in person this fall will cause preventable illness and death.
Part 1 describes foreseeable risks and some pushback by faculty around the country.
This part provides statistics about other causes of death in the US, demonstrating how covid-19 far exceeds almost all of them. It also discusses biases that may lead to poor decision-making by university administrators, students, and faculty about the risks and benefits of holding classes in person.
Some Perspective
We may become numb as we watch the numbers of deaths grow every day.
According to the New York Times, there have been more than 140,000 deaths in the US from Covid-19 in about six months. This number continues to grow at an alarming rate. Lately, there have been more than 60,000 new confirmed cases per day and close to 1,000 additional deaths some days.
For some perspective, consider the following statistics.
Note that these wars each lasted years, compared with only six months of deaths from Covid-19.
Faulty Thinking
I assume that university administrators are working overtime, sincerely trying to figure out the best way to deal with this crisis. Their financial and institutional fears about not holding classes in person are understandable. Perhaps if I participated in the these deliberations, I would share their perspectives about the wisdom of doing so.
I wonder if their assessments are colored by cognitive, motivational, and social biases leading to overly optimistic perspectives. Are they so focused on measures to limit infection on campus that they don’t make realistic assumptions about student behavior off campus?
Do people who demand on-campus instruction have realistic expectations about what the experience will be like, both on campus and off? It probably would be nothing like the intense social interaction they imagine — at least not if everyone complies with strict public health measures. There will be great temptation to have the kind of interactions that could put a lot of people at serious risk.
Consider this news story: “Virus’s Spread in Fraternity Houses Raises Concerns for Campuses Opening this Fall. … ‘There is not one event, or multiple events, that we can identify as being the repository of this,’ said Johnson, who is a senior. ‘It just spread from people living in a house, or visiting others in a house to hang out, or even just running into someone at a grocery store. . . . It was truly community spread.’”
Many college health services appear unprepared to handle a pandemic.
Student health centers are like the Wild West of medical care.
Risks increase for historically black colleges and universities.
Some students can’t afford care at on-campus health centers.
The pandemic has set off a financial crisis for student health care.
The article states:
Students are planning to descend on campuses in a matter of weeks as many states are experiencing a surge of coronavirus cases, including an increasing number of young people who have tested positive. Health experts have described colleges as cruise ships on land, ideal places for the novel coronavirus to spread quickly through shared dorm rooms, communal bathrooms and dining halls.
…
University leaders are publicly lobbying for federal protections from coronavirus-related lawsuits when they reopen, arguing that costly litigation would take away from already scarce resources needed to support students.
College health officials, meanwhile, are privately discussing insufficient stockpiles of personal protective equipment, inadequate access to coronavirus testing on campus and a short supply of rooms to quarantine students, according to interviews, emails and presentations reviewed by The Post.
Health professionals at historically black colleges and universities have said they are concerned about the risks to their students and faculty because of the disproportionate number of covid-19 diagnoses and deaths among black people.
These decisions not only affect the university communities – they affect everyone. Infections from students, faculty, and staff ripple out to their communities and everyone who comes in contact with them. People in the US can’t travel to many other countries without being quarantined. Similarly, people in some American states can’t travel to other states without being quarantined. People in many states may have to live with increasingly strict limitations on their behavior. Continued spread of the virus aggravates our intense political and social conflict.
Since students probably wouldn’t have the experiences on campus they imagine, here’s a real opportunity to do some problem-solving thinking to safely replicate online the campus social interactions as much as possible. And it provides the potential side effect of having students focus more on good communication, less tainted by binge drinking and unsafe sex. Obviously, this wouldn’t be an ideal substitute. But we’re in a crisis with only more or less bad options.
Now that we have spent a little time looking back, we are excited to share a little about who we are and where we are headed.
Who we are:
Davida Finger is a Clinic Professor and Associate Dean of Students and Experiential Learning at Loyola New Orleans College of Law. She founded the Community Justice section of the Law Clinic where she and her clinic students have represented on housing, special education, and other civil rights matters with a focus on movement lawyering. Davida received the Bellow Scholars award from the AALS Clinical Association for her empirical research on New Orleans eviction geography that documented the discriminatory impact of evictions. She is the founding director of the College of Law’s Incubator Program for solo practitioners working for social justice. Davida recently completed a 2-year term as the president of the Society of American Law Teachers (SALT) and is currently teaching the externship course.
Melanie Daily DeRousse is a Clinical Associate Professor and Director of the Legal Aid Clinic at the University of Kansas School of Law. Melanie began work at KU in 2015 after she responded to a job posting that invited essays on how candidates would reinvent the then-47-year-old clinic by applying the principles in Best Practices in Legal Education. In her second term as a CLEA board member, she co-chairs the Best Practices in Pedagogy committee and serves on the Elections committee. She presents on legal education pedagogy with other Best Practices committee members at regional and national conferences, and also recently worked on the planning committee for CLEA’s 2020 New Clinicians’ Virtual Conference. Her clinical work focuses on juvenile justice, criminal defense, and child welfare; outside the clinic, she teaches and writes about family law and engages in university work on promotion, tenure, and pay equity, among other things. Before joining KU Law, Melanie represented survivors of intimate partner violence in family law matters through Legal Services of Eastern Missouri. She was a racial justice fellow in the inaugural class of advocates through the Shriver Center’s Racial Justice Institute.
Where we are headed:
It is humbling, to put it mildly, to be at the helm of such an insightful and collaborative group of contributing authors. As Mary mentioned, this Blog continues to evolve and spark “collaboration on steroids” as new ideas are generated, implemented, assessed, and modified. It is a powerful home for vetting ideas about teaching. We hope to continue to nurture the imaginative, inquisitive, and aspirational tone the Blog has cultivated over the years. As we focus our work as editors, we note the emergence of three main content areas worth highlighting:
Teaching justice by doing justice work: we will highlight efforts around inclusion, diversity, and radical change to upend structural racism in legal education and academic institutions;
Pedagogical (r)evolution: we will continue the Blog’s intense discussion of legal education reform and seek to emphasize emerging ideas about how we teach in ever-evolving classrooms with a priority on justice ideals; and
Large scale policy changes affecting teaching: we will share advocacy around big-picture issues in legal education – changes in ABA standards, forthcoming CSALE studies, structural changes in higher education that impact legal education.
In addition, we hope to use the tools of social media to encourage greater engagement in these discussions and feature prominently the voices of colleagues teaching diverse topics across the legal education curriculum. We welcome new authors, voices, and comments as we seek to broaden the conversation. CLEA is self-reflective and self-critical in understanding that, as an organization, it must do more to amplify and expand all manner of justice including through this Blog.
And, finally, a thank-you and a goodbye:
Finally, thank you to Mary Lynch, founder and 13-year editor of the Blog. We knew from reading the Blog that she was a very busy and involved editor; but during this transition, we had the first opportunity to see just how much she does behind the scenes to keep the conversation interesting, interactive, inclusive, and meaningful. She has been as thoughtful and supportive in this transition as could be possible. We are grateful that she will stay on as “Editor Emeritus” as the Blog continues to grow. Mary, thank you for all that you have done to create a space to engage all legal educators in a thoughtful and productive discussion about why, how, and what we teach, and why it matters.
Like many law professors, I found myself a few months ago teaching regularly from a laptop in my home. With little prior online teaching, I was intimidated. Relying on expert help at our school and in the legal education community, on lots of practice using the platforms available, and on the generosity of my students (who kindly took time to do pre-class sessions), I muddled through the semester.
When I learned we were likely to be teaching online again in some capacity, I decided to take advantage of the available resources to help understand the similarities and differences between face-to-face classes and online classes. I was delighted to find among these resources an article by one of my favorite educators, Gerald Hess. His article that explored many of the questions on my mind. See Gerald F. Hess, Symposium: The State and Future of Legal Education: Blended Courses in Law School: The Best of Online and Face-to-Face Learning?, 45 McGeorge L. Rev. 51 (2013). (Note on a separate resource: coauthored with Michael Hunter Schwartz and Sophie Sparrow, Professor Hess’s book Teaching Law by Design [Carolina Academic Press 2009] has helped me more than any other single source in designing and teaching my courses. It should be mandatory reading for all new law professors.)
Professor Hess’s article cites credible authority that online teaching fosters students’ development of self-directed learning.[1] My colleague, Natt Gantt, and I have been working with St. Thomas Law School’s Holloran Center to provide tools with which law teachers can both adopt development of self-directed learning and use the materials on the Holloran Center website to achieve and measure that learning outcome.[2] We had not, however, focused on the strengths of online teaching as a means of achieving self-directedness. Perhaps it should have been obvious to me that, if a student knows that she will be expected to actively participate in the online class, she will take more ownership of her learning. I had to see the online format in action to begin appreciating its benefits.
Professor Hess’s article references not only interviews of teachers and students but also empirical evidence that evaluates how effectively face-to-face, online, and blended (combining face-to-face with online) instruction achieves learning outcomes. The findings offer support for online as a more effective means of achieving learning objectives than traditional face-to-face classes. However, Professor Hess cautions against exaggerating these findings because most of the empirical research did not involve on law schools (but did include graduate courses). When one compares the ability to achieve learning outcomes through face-to-face versus online teaching, however, this evidence suggests that we keep an open mind. When comparing face-to-face teaching with blended teaching, moreover, the results show “stronger learning outcomes than did face-to-face instruction alone.”[3]
Professor Hess explains why such conclusions make sense. A well-designed blended classroom encourages students’ collaboration in the learning process. Such a class also allows students to use their strengths to their advantage while developing or improving new skills. For instance, the face-to-face class allows students who think quickly on their feet to interact with the professor and each other. Many students, however, feel more comfortable participating online, after having had the chance to ponder a prompt or post. All students, moreover, must actively participate in the process of learning.
Professor Hess’s articles sets forth General Design Principles for an effective blended class. I encourage anyone who may be teaching a blended class in the upcoming academic year to review his design principles. I am sure they will help to ensure a class is as effective at achieving learning outcomes as possible. I know that they showed me I still have a lot of work to do. However, I realize now that the effort can lead to more effective teaching and learning than in what I had come to accept as the previous norm—face-to-face classes.
[2]See, e.g., Larry O. Natt Gantt, II, and Benjamin V. Madison, III, Self-Directedness and Professional Formation: Connecting Two Critical Concepts in Legal Education, 14 Univ. of St. Thomas L. J. 498 (2018); see also Univ. o St. Thomas Law School’s Holloran Center for Leadership in the Professions, Competency Milestones: Self-Directedness, https://www.stthomas.edu/hollorancenter/hollorancompetencymilestones.
[3]See Hess, supra, at 69 (quoting Means et al., U.S. Dep’t of Educ. Evaluation of Evidence Based Practices in On-Line Learning: A Meta-Analysis and Review of Online Learning Studies 28 (2010).
The author proposes that law professors teach legal writing intentionally designed for the digital reader.
The proposed framework uses visual design elements and digital functionality to overlay traditional structures of legal writing. Writing for the digital reader addresses the challenges of reading on a computer screen and amplifies best practices for legal writing. The result is a conceptual framework for written communication that helps bridge the gap between the writer’s “intention” and the reader’s “attention,” regardless of medium (paper or digital).[1]
The COVID-19 pandemic and the move to online learning by law schools has exposed the pre-existing need to incorporate writing for the digital reader as part of the fundamental framework for teaching legal writing across the law school curriculum. Digital writing represents a “best of both worlds” approach: to write well for the digital reader is to write well for the paper reader.
Digital writing does not replace the creative, human writing process, complex narrative and analysis, or the role of “old school” technologies in that process—for example, pen and paper. Similar to the difference between a paper and digital map, writing for the digital reader adds dynamic dimensions that enhance communication between the writer and reader.
Writing for the digital reader meets today’s law students, who are mostly “digital residents,” where they are. It facilitates “adaptive transfer” by encouraging all students to draw on their learning experiences, including oral and written communication. It is a bridge for students from their lived experiences in the digital age to the unfamiliar landscape and structures of legal writing and analysis.
Writing for the digital reader prepares law students for contemporary practice: “Lawyering in the Digital Age.” In legal education, the shift to digital technology, according to Professor Conrad Johnson, “transforms the way we practice traditional lawyering skills and requires us to teach the new skills of contemporary practice.”[2] Writing for the digital reader is an example of a contemporary approach to a traditional lawyering skill.
The author hopes to encourage law professors and law schools to help reshape the teaching and practice of legal writing to better reflect the reality of lawyering in the digital age. Law professors can use the checklist below to get started.
2. Why law professors should teach writing for the digital reader.
Written communication is a core lawyering skill for law students: in many ways, to be a lawyer is to be a writer. The fundamental concept of legal writing, and how it is taught in law schools, should reflect the reality that the audience will likely be reading on a computer screen. This includes the full range of professional writing that law students will learn and do while in law school and as lawyers.[3] Even writing that may have to be printed and read on paper, for example, “know your rights” materials and communication to clients who are detained or incarcerated, will benefit from a “digital writing” approach.
Scholarship on visual design and the impact of digital technology on legal writing provides a theoretical and practical basis for shifting our notion of a legal document from paper to digital. For example, Professor Ruth Anne Robbins, in her 2004 seminal article, Painting with Print, and in her 2015 work with Professor Steve Johansen, Art-iculating the Analysis, made important connections among visual design techniques, legal writing, and lawyering strategy. Professor Kirsten Davis, in her 2014 article, The Reports of My Death Are Greatly Exaggerated, asserted that “all legal reading is rapidly moving to on-screen legal reading.” Professor Ellie Margolis, in her 2015 article, Is the Medium the Message? observed that, “[T]urning the traditional, linear, text-based brief into a multidimensional e-document is a key example of how the medium changes the message and suggests that it is time to rethink that classic legal document.”
Lawyers no longer have a choice about incorporating technology into their practice and ABA Model Rule 1.1, Comment 8 requires that lawyers understand the risks and benefits of technology as part of the duty of competence, and ABA Formal Opinion 477R provide guidance about the lawyer’s duty to make “reasonable efforts” to secure confidential client information when using technology to communicate.
Any form of legal writing, broadly defined, can be transformed from “paper” (two dimensional) to “digital” (multi-dimensional) with modest changes in design, structure, and functionality. Writing for the digital reader incorporates, accentuates, and builds upon the components, structures, frameworks, and techniques that are effective for the paper reader. Digital writing can be adapted by law professors because particular elements or tools can be overlaid, sprinkled or infused regardless of the particular document, assignment, class, or module.
Law students can use a visual design approach to both construct their written analysis in outlines and drafts (for example, by using organizational visuals to deconstruct complex rules or facts) and present in their final writing whatever digital elements are appropriate, depending on the purpose and context of the writing. A writing for the digital reader framework emphasizes and synthesizes the following interactive elements:
Visual design elements to organize and present information in an accessible format :
3. Our “brain on screen” explains the need to write for the digital reader.
In the digital age, we are challenged by massive information overload and multiple distractions. This heightens the need to understand how “screen habits” affect the way in which we process information and maintain, develop, or lose cognitive focus.
Reading on a computer screen (including laptop, tablet, smart phone) is associated with distraction, lack of sustained attention, and diminished comprehension. Researchers and educators fear that deep learning and meaningful comprehension are threatened as we try to read and:
To meet these challenges, we need to cultivate what Maryanne Wolf calls “cognitive patience” in our students (and ourselves) and, ultimately, a “biliterate brain” that switches effortlessly among different modes of reading.[4]
Regardless of medium, law students can develop and maintain habits of mind and strategies to compensate for diminished attention and manage information overload. Metacognition—awareness of their own learning process—will help students (re)balance and self-regulate their learning strategies and improve their ability to engage in deep reading and learning, even while using computer devices.
4. Checklist for teaching law students to write for the digital reader.[5]
Learning to write for the digital reader can help students improve their writing. This checklist incorporates practical approaches that draw on visual design, best practices in writing, and digital functionality. Professors, students, and attorneys can use it as a guide for written communication.
Meet students where they are. Most of our students are “digital residents” who have lived their entire lives in the digital age. We can help them transfer their online experiences, knowledge, and skills to academic and professional writing assignments with practical frameworks and approaches.
Begin with a reflection exercise. Ask students to reflect on their writing, including papers, articles, texts, emails, tweets, and posts.
What techniques do they use to communicate in writing online?
In more traditional papers?
What makes reading online easier or more difficult?
Writing as a process. Writing for the digital reader can help students think about their writing process.
How do they generate and organize ideas?
Do they take notes, create an outline, write in stream of consciousness, or use other approaches?
What technology do they use: pen, paper, computer, a combination of paper and computer?
Writing choices flow from content. Encourage students to focus initially on the goals of the writing and their ideas, research, analysis, and content. Thoughtful analysis, strong content, and clear objectives are the foundation for effective writing. Structure and format flow from substantive analysis.
See writing with fresh eyes. Ask students to “step back” and review an initial draft.
Do lines of text appear “bunched” together?
Does the student’s eyes “glaze over” when they are reading due to long sentences and paragraphs?
Do they have to struggle to find the meaning of text that is too dense and hard to follow?
Write to overcome screen reading challenges. Research shows that when we read on a screen, we are more distracted, less able to maintain sustained focus, and our comprehension diminishes. We can teach students how to use techniques and strategies to compensate for these problems.
Eliminate or minimize distractions. Practice focused reading in 20-30 minute blocks without checking texts, emails, or social media. Minimize notifications and any other distracting “pop ups.” Take a short break.
Headings, topic sentences and paragraphs. Encourage students to use headings and sub-headings in the early stages of writing process and, for most writing, through the final draft. This helps organize ideas and thoughts. Headings can “announce” topics or make an affirmative point. Topic sentences and concise paragraphs will also help both writer and reader.
Spacing, lines, and fonts. Be aware of spacing, lines, and font (typography). The size and type of the font will likely depend on the conventions of the assignment or genre of writing. Spaces between lines, and the length of the lines of text, can help or hinder the reader.
Use visuals and media to present information.
“Organizational visuals.” Also called “navigational” visuals, these techniques are a great starting point to help the writer’s understanding, analysis, and structure. When writing about elements, rules, and multiple items, students can express information using “tab form” to create lists with:
1. Bullets,
2. Numbers, or
3. Letters.
Graphs, tables, & charts. These are more tools students can use to communicate information. The key is to highlight content, not format of presentation. Students can use a simple table to compare and contrast information in context with practical, side by side examples.
Images, diagrams, & videos. Depending on the context, students can use multi-media to support & illustrate their analysis. Media can help students develop ideas & analysis, and also meet the goals of the assignment.
Hyperlink citations. We are so used to clicking on hyperlinks that we barely notice: they are a key difference between digital & paper writing. Writing assignments should include hyperlinks to legal citations and other resources.
Best practices for hyperlinks. Hyperlinks can help students think differently about the purposes and form of citations.
Bookmarks. Students can insert bookmarks in longer documents. These bookmarks enhance functionality. Students can use bookmarks without a full table of contents. Students can insert hyperlinks to bookmarked sections in a roadmap or introductory section at the beginning of a document.
Self-assessment. As part of the thinking and writing process, students see their piece of writing as a whole.
Is there a balance between text and space?
What visual tools are used in the writing?
Are the visual tools appropriate for the context?
Do the visual tools advance the purpose of the writing?
Continue the editing, revising, and proofreading loop. In the digital age, learning how to write for the digital reader is a necessity. Students can learn to write at the intersection of visual design, best practices in writing, & digital functionality, and also improve their screen reading. Professors can too!
5. At a glance typography for legal writing for the digital reader.
Design choice
Recommendations
Comments
Typeface or font
Baskerville Bookman Book Antiqua Calisto Century Century Schoolbook Garamond New Baskerville Palatino Times New Roman
Serif for body of doc Sans Serif for headings Any “Book” font good for legal writing (Some say avoid Times New Roman because designed for newspaper columns and not as legible)
Font size
Between 10 & 13
Depends on letter height & line length
White space (including margins)
Use expansively 1.5 as default, 1.0 and 2.0 as appropriate
Avoid bunching together text without enough space. Double space not as effective for screen reading
Headings & subheadings
Use headings & sub-headings Sentence format Arabic numerals (1.0) Arial Century Gothic Trebuchet Corbel
Use Sans Serif font for contrast Avoid: ALL CAPS, Small Caps, Cap At Beginning Of Each Word, & underline Align with left margin (do not center) Insert extra space before each sub-heading (distances from prior section, connects with related text)
Organizational or navigational visuals
Use for elements, lists, points (bullets, numbers, letters, other visual signals).
Avoid “burying” items within a paragraph. Use to complement, not replace narrative text.
Page numbers
Use p. 1 of 20
Avoid p. # alone
Length of document
Word count
Not number of pages
Line length & justification
Shorter line length (6”) (margins equal to or more than 1”) Rule of thumb: line should be 2 or 2.5 times alphabet length (52 to 65 characters)
[2] Conrad Johnson, Lawyering in the Digital Age at 308 in Bryant et al., Transforming the Education of Lawyers: The Theory and Practice of Clinical Pedagogy (Carolina Academic Press 2014)..
[3] For example, formal legal memoranda and briefs, articles, essays, emails, letters, websites, posts, tweets, blogs, “DIY” guided interviews, court forms, reports, and community education materials.
Back in 2007, after many retreats, research, brainstorming sessions, and national workshops, the members of the Clinical Legal Education Association’s Best Practices Committee ( thereafter renamed Best Practices in Pedagogy ) published the iconic Best Practices in Legal Education, timed to be released at the same time as Carnegie’s Educating Lawyers. The first Best Practices document captured the emerging research on how to best engage law student learning. It also focused on the preparation of future lawyers in accordance with our profession’s expressed values and commitment to justice. It did not claim to be the definitive “last word” on Legal Education. In fact, that was the whole point. Legal Education needed to evolve to meet the challenges of each new generation of lawyers-to-be and the world in which they would emerge.
At the inception, there was a shared understanding that work on a second edition needed to begin almost immediately and that historical wisdom should be tested in the light of an ever more diverse, global, and digitized world. There was also an early desire to facilitate discussions in real time and to capture and share the ongoing and potentially controversial attempts to release legal education from its over 100 year old educational stagnation. Thus, the Best Practices for Legal Education blog was born.
Today in the turbulent summer of 2020, we evolve again to welcome new editors and crowd-source new inspirations. I am so pleased and honored to announce that Best Practices in Pedagogymembers, Professors Melanie DeRousse and Davida Finger, have stepped into leadership and will be editors on the Blog going forward. It has been so rewarding to work with them on this transition. I leave this baby in good hands!
So many people – authors, assistant editors, staff, professors, Deans, colleagues – have contributed to the success of this blog over the past 13 years. You know who you are and I thank you from the bottom of my heart. For now, let’s look forward towards a future of “collaboration on steroids” in legal education while dismantling the structural impediments for learning and teaching which result from racism, misogyny, and other historical systems of oppression. We can do this together!
Posted on July 9, 2020 by Melanie Daily, University of Kansas School of Law
At law schools across the country, we are grappling with how to respond to internal and external conversations about the role of the legal profession in addressing structural racism, white supremacy, and racist policing. At CUNY Law School, Black faculty and non-Black faculty of color recently drafted and published a Statement and Demand for Action that was endorsed by the full faculty. The impressive and comprehensive statement outlines action steps, policy demands, and faculty dynamics that must change, addresses CUNY’s problematic relationship with the NYPD, and pushes for specific action to create an anti-racist campus.
As we collectively consider the path forward, what steps in CUNY’s plan resonate? What similar discussions are taking place at other law schools, and what is changing? Let us know in the comments.
Full text of the statement appears below this line:
Statement and Demand for Action to Create an Anti-Racist Campus
By Black Faculty and Faculty of Color at CUNY Law
June 30, 2020
Black Faculty and Faculty of Color of CUNY School of Law issue the following statement, endorsed by the full faculty. We believe unequivocally that Black Lives Matter. We grieve with the families of Ahmaud Aubery, Rayshard Brooks, George Floyd, Tony McDade, Breonna Taylor, and every victim of anti-Black violence. We stand in solidarity with those who are demanding justice for their deaths, and who are fighting to dismantle white supremacy in all its forms, and specifically, systemic anti-Black racism. We join in solidarity with those in New York City and around the country who are challenging not only structural racism and racist policing, but anti-Blackness and racism in all of our institutions. The legal academy, including CUNY School of Law, are not exempt from these legacies of slavery and subjugation.
Statement and Demand for Action to Create an Anti-Racist Campus
As Black and non-Black faculty of color, we support the Movement for Black Lives Policy Platforms and stand in solidarity with the movement to defund and abolish police and redefine public safety and accountability through non-carceral investments in Black communities. Accordingly, we reject reforms that preserve the status quo. As lawyers and educators, we acknowledge our profession’s history of upholding white supremacy and thwarting these demands. However, we are also uniquely situated to further them. Below are preliminary areas in which the law school must work in furtherance of these goals:
Our role in the legal profession: We heartily embrace the dual mission of our law school — to facilitate access to underrepresented communities historically excluded from the profession by white supremacy, and particularly anti-Blackness, and to act as an entrée into providing legal support to communities fighting against systems entrenched in white supremacy. Our view of social justice calls for a complete reimagining of the state and society. Accordingly, we seek to serve those students who will genuinely and fearlessly pursue transformative racial and economic justice.
We uplift and honor the legacy of W. Haywood Burns, the first Black law school dean in New York State, who was also the second dean of CUNY School of Law and tirelessly fought for Black liberation in and outside of the walls of CUNY Law. We are cognizant that among the central tools of oppression under white supremacy is the law, particularly as meted out by police, military and prosecutors of all stripes — be they police who criminalize or cage, police who alienize or deport, or purportedly protective agencies who demonize or separate families.
As Black and non-Black faculty of color, we are committed to dismantling these tools of oppression through a pedagogical approach that deploys critical and radical analyses to challenge our students and by offering a robust and humble praxis in service of movements that seek transformative and restorative justice. We further reiterate the importance of affirming CUNY Law’s dual mission, from admission to graduation and beyond, through a commitment of institutional self-reflection that is unflinching, inclusive, and continual.
Curriculum: Black students routinely call on the CUNY Law faculty to recognize and confront the negative impact that the traditional legal curriculum has had on Black students. We call on faculty to acknowledge the concerns of students of color and incorporate the feedback into their teaching.
To work towards becoming an anti-racist campus, we demand that, starting in Fall 2020, faculty mobilize pre-existing resources like the Race, Privilege, and Diversity and Professional Development committees toward educating ourselves across the administration and faculty — including adjuncts, visitors, tenure-track, and tenured faculty — on anti-Blackness, racial capitalism, state overreach into communities of color and abolition movements, particularly by engaging with work authored by Black people, incorporating critical frameworks like critical race feminism and queer theory, disability justice, abolition, and decoloniality, among others, throughout every course, and centering intersectional Black perspectives in the classroom.
To achieve these goals, we demand that CUNY Law provide the material resources so that all faculty may take the time necessary to engage in this learning and unlearning. To ensure accountability and transparency, we demand that these committees and others apprise the full faculty in writing each semester on their progress and any challenges encountered in this process.
Non-Curricular Policy Points
The various departments that constitute the law school make powerful choices that should be calibrated to center and uplift anti-racist objectives. We demand increased outreach to Black and non-Black students of color in admissions by the career planning office and heightened engagement with Black and non-Black alumni of color. Understanding that internships and initial jobs are key to a student’s ability to practice law over the long-term and practice in the frontlines of social justice movements, we also demand that the career planning office provide increased support to Black and non-Black students of color, particularly first-generation higher education students, whose resumes and cover letters can and should reflect the valuable perspectives and skills that each of our students has to offer the legal profession. We call on the relevant committees to report back on these developments to the full faculty in Fall 2020.
For too long we have participated in maintaining barriers to the legal profession even as we seek to break those down. Accordingly, we demand that, starting Fall 2020, the minimum LSAT requirement for all scholarships, including the Graduate Fellowship, be abolished and that the law school keep records of and make public the distribution of scholarship and summer fellowship funds by race. Similarly, we demand that admissions data collection be expanded beyond the required ABA categories to include more detailed, granular, and less reductive categories to better account for the multiple and diverse identities our students bring to the school. We call on the Admissions committee to report back on these developments to the full faculty on a bi-semesterly basis.
CUNY Law offers the services of a Nurse Practitioner and Mental Health Counselor on the premises, but otherwise, students are not offered health insurance and are instead invited to enroll in Medicaid programs during open enrollment each period. The limited resources made available are not sufficient for CUNY’s student body. Particularly given the dynamics described above, we call on the law school to consider allocation of funds to mental health services and other medical insurance.
Some of our academic standing policies — such as the threshold for academic probation — have a disparate impact on Black and non-Black students of color. We demand that those policies be immediately reconsidered and amended. We call on the Academic Standing committee to report back to the full faculty on these developments on a bi-semesterly basis.
We reiterate the importance of the role of Black and non-Black faculty of color on the faculty appointments committee. We call on the Committee on Committees to report back to the full faculty on developments to this end in Fall 2020.
Like many law schools, CUNY Law relies on faculty with non-secure positions for critical teaching positions. Our adjunct, visitor, instructor, and other non-tenure track faculty contribute immensely to our institution yet lack job security, opportunities for training and development, and other benefits that permanent faculty enjoy. We demand meaningful job security for our colleagues in these positions, especially Black and non-Black faculty of color. We call on all relevant committees to report back to the full faculty on progress to this end in Fall 2020.
Faculty Dynamics
Invisible institutional service and labor of Black and non-Black faculty of color: In 2019, 88% of lawyers were white and in 2018, 8 out of 10 law professors were white. CUNY School of Law boasts a more racially diverse faculty. We especially acknowledge the school’s laudable efforts to bring ten faculty of color, including 4 black faculty, onto the tenure track in the past 3 years alone. Nonetheless, we must do more to dismantle anti-Blackness in our governance. Black and non-Black faculty and staff of color, both at CUNY Law and throughout the U.S., routinely perform unrecognized labor beyond their job descriptions and in the service of their institutions, to confront anti-Blackness and other forms of racism. A wealth of research shows these contributions both sustain diversity and inclusion efforts in the academy and create additional demands that detract from the time required for fulfilling traditional expectations of all faculty.
Faculty of color devote significant time to mentoring and supporting Black and non-Black students of color, ensuring that our institution can retain the most marginalized students after they matriculate. We advocate explicitly and in more personalized ways for Black and non-Black students of color, who suffer regular indignities, while we also abide microaggressions from colleagues, the profession, and indignities from broader society ourselves. We disproportionately bear the burden of ensuring equitable distribution of labor among faculty and scholarship and fellowship awards among students.
We highlight the lack of recognition (both in salary/pay and formal acknowledgement through evaluation, tenure, and promotion standards) of the amount of invisible institutional service and labor that Black and non-Black faculty and staff of color contribute to the law school. We demand that similar to our institution’s commitment to recognizing advocacy work product as scholarship, CUNY Law change provisions in promotion, hiring, assignment to and distribution of labor on committees, and tenure policies to honestly and explicitly reflect the now hidden workload of Black and non-Black faculty and staff of color. For example, we need more conscientious reappointment and annual review reporting policies and re-conceptualized categories of “teaching, scholarship, and service” across the faculty. We call on all relevant committees to report back to the full faculty on progress to these ends in Fall 2020.
Recognition of privilege and power: We note the complex conditions inherent in participating in governance discussions. We demand that faculty be mindful of their privilege and hierarchies of power and reflect on the ways in which they participate in committees, faculty meetings, and other spaces — stepping back where appropriate.
Policing: Generations of faculty, students, and staff of color have repeatedly expressed concerns about the relationship between CUNY Law’s public safety and the New York City Police Department (NYPD). We demand that any memoranda of understanding governing the role or presence of CUNY Public Safety, of the NYPD, or of any other law enforcement agency on the CUNY School of Law campus be shared immediately with the full faculty, staff, and student body of the law school. In keeping with the demands and concerns of generations of students, faculty, and staff, we’re calling on CUNY Law School to discontinue any formal or informal relationship with NYPD and reimagine campus security by supporting the safety and well-being of the people on campus through divestment from punitive policing systems and investment in alternatives, including de-escalation, conflict resolution, and transformative and restorative justice training for all faculty, staff, and designated student representatives. The Public Safety committee was explicitly tasked with addressing these issues in the Fall of 2019. We call on that committee to report back to the full Faculty by October 2020 on progress to these ends.
Finally, we stand by Brooklyn College’s Black Faculty and Staff (BFS), Faculty of Color (FOC) Group, Latino Faculty and Staff (LFSO), and other caucus groups in the CUNY system, and we adopt our Brooklyn colleagues’ statement, slightly adapted to the law school’s context, as follows: This moment in our country is the culmination of systemic denial of dignity that typifies antiblackness. As lawyers fighting for racial and economic justice, we know that structural inequality cannot be addressed through empty statements of standing in solidarity and promoting “diversity.”
We advocate a transformational solidarity with an ethos of social justice that is action- oriented. Transformational solidarity means that the systemic racism, surveillance, and austerity that have become a normal feature of society is aggressively challenged on campus. Transformative solidarity understands that struggles against domination are shared and that anti-Blackness and austerity work in tandem and must be fought hand-in-hand. This is a fight that involves Albany and state politics but it begins with us on campus. We demand a shift in the current institutional logic of the administration that urges faculty and staff to do more for our students with less. By embracing this moment of profound possibility in response to this crisis, we hope to imagine and create a life-affirming campus we do not have, but require.
Chris Adams
Beena Ahmad
Naz Ahmad
Saba N. Ahmed
Bahar Ansari
Nermeen Arastu
Ann Cammett
Eduardo R.C. Capulong
Janet Calvo
Asima Chaudhary
Natalie M. Chin
Frank Deale
Farah Diaz-Tello
Pamela Edwards
Golnaz Fakhimi
Raquel Gabriel
Mary Godfrey-Rickards
Natalie Gomez-Velez
Victor Goode
Fareed Hayat
Julia Hernandez
Carmen Huertas-Noble
Chaumtoli Huq
Tarek Z. Ismail
Ramzi Kassem
Donna Lee
Degna Levister
Julie Lim
Gregory Louis
Lynn Lu
Shirley Lung
Princess Masilungan
Michelle Pinzon
Missy Risser-Lovings
Jeena Shah
Charisa Kiyô Smith
Nicole Smith
Yasmin Sokkar Harker
Cynthia Soohoo
Rafael Varela
Shomari Ward
We call on all of our faculty colleagues to endorse this statement, mindful that such an endorsement carries with it the responsibility of ensuring the statement’s implementation.
By Sara J. Berman, Director of Programs for Academic and Bar Success, AccessLex Institute Center for Legal Education Excellence
Hats off to LSAC for its important June 30th webinar featuring Berkeley Law Dean, Erwin Chemerinsky. As LSAC President Kellye Testy said at the close of the session, I too felt a longing to return to the richness of law school learning while listening to Dean Chemerinsky’s review of recent Supreme Court decisions. The session also provided a hopeful counterpart to Dean Paul Caron’s same day post, Is A LawSchool Meltdown Coming? Thank you, Dean Caron, for this critically important warning that I hope we all heed, and for the rays of light in between the cautionary notes.
Dean Chemerinsky showed every prospective law student —via a distance learning delivery system I might add — why the law and legal education are critically important—indeed vital to the future of our democracy. And, for all who watched and listened, or will do so when the video link is posted, Dean Chemerinsky’s Constitutional Law session provides irrefutable evidence that great teaching is great teaching, in any delivery mode.
Distance learning is not new. We have long been engaged in deep learning through books, movies, and educational television. How many of us first learned how a bill becomes a law or the proper use conjunctions because of Schoolhouse Rock? And, how many are learning important U.S. history lessons by singing the lyrics of Hamiltonand watching the musical online—from a distance, not “in the room where it happened.” Thank you, Lin-Manuel Miranda, one of today’s greatest distance educators!
I am a legal ed distance learning pioneer. When people question me about the efficacy of online learning in legal education, I often point to Professor Arthur Miller. Teaching in person for decades at Harvard Law School and now at NYU, and through multiple distance formats, Professor Miller has taught more lawyers, judges, and everyday citizens than anyone could possibly ever count— about civil procedure and the American legal system— through his Federal Practice and Procedure treatise, casebooks, and hornbooks, bar review, PBS series The Constitution: That Delicate Balance for which he won an Emmy, and decades of work providing legal commentary and bringing life and clarity to legal issues on national television, not to mention the lectures he recorded for the first online law school, where I served for some fifteen years as a faculty member and assistant dean.
Quite simply, anyone who categorically dismisses “distance learning” in legal education as some sort of inferior substitute has never heard, watched, or read the teachings of Erwin Chemerinsky or Arthur Miller, or any of the thousands of other brilliant law professors across this country who are right now preparing to teach superb online courses this fall. And, this is precisely what we should be doing —preparing for the fall.
In a June 30, 2020 post, former Northwestern Dean Dan Rodriguez rightly lauds Professor Deborah Merritt, “What Prof. Merritt captures well, and what I and others have tried hard to capture as we have discussed this issue privately and publicly is this: We can and should put on a full-court-press to develop and refine our remote/online teaching abilities so as to commit to giving our students an excellent educational experience — excellent in curricular content, excellent in experiential/skill-building opportunities, and excellent in the community-building that technology can assist us with, if we are diligent and strategic, energetic and empathetic.”
And, to anyone who contests the community building part of the statement above, anyone who claims that unless we are together in person we cannot really build deep and lasting connections, let us remember that history is replete with people who have fallen in love, sustained relationships, started revolutions, and changed the world through letter writing.
The week of June 30th was indeed a busy one for legal education and distance education in particular. In addition to the webinar and posts noted above, the Summer 2020 issue of the AccessLex Institute’s Raising the Bar (RTB) was published on July 1, 2020. I am proud to have founded and continue to serve as managing editor of RTB. This issue is dedicated to distance learning in legal education, and features among other content, wisdom from four visionary law school deans who are at the helm of hybrid JD programs that were educating for the 21st century prior to the pandemic. I hope that readers find the issue informative and will feel inspired to continue working to develop precisely the kind of excellent educational experience in learning that Professor Merritt envisions.
As legal education continues in part or fully online in the new academic year and until this virus is eradicated and perhaps beyond, let’s work together with the same fervor depicted in Alexander Hamilton’s writing “like he’s running out of time,” to see the virtual halls of our nation’s law schools filled this fall with the brightest, most engaged minds —students from all backgrounds who are ready to learn to protect the Constitution and to ensure that our nation remains a thriving democracy, governed by the rule of law.
At this point in time, it is too early to tell with certainty whether it will be safe and feasible to hold an in-person bar exam in early September. State and local restrictions on venues being open and limiting the size of in-person gatherings may preclude the administration of an in-person test. Amid the uncertainty over the test’s administration, law graduates are reporting that the already stressful bar exam preparation has been compounded by personal challenges ranging from their own health and wellbeing to financial hardship to increased caregiving responsibilities. Allowing a modified form of diploma privilege, as proposed in this bill, would give law graduates a reprieve from further delays in admittance, while retaining the Court of Appeals’ prerogative to set standards for the profession. Under this bill, as long as there is an extent state of Emergency related to COVID-19, the uniform system of examination for admission to practice law in New York will consist of the New York Law Course, the New York Law Examination, and the Multi- state Professional Responsibility Examination, all of which can be taken online.
Nothing in the bill precludes the State from moving forward with admin- istering the Multistate Bar Examination, meaning it can remain an option for New York-based law graduates who wish to practice law in a state other than New York. Passing the MBE, however, would not be a required prerequisite to admission to practice in New York for the duration of the COVID-19 State of Emergency.
that the Board of Law Examiners and Court of Appeals will act on their own, because they have the power to do that,” Schapira said. “But I think that this helps push the momentum. This is not something that graduates want because we don’t want to take the bar exam. This is an issue that has a real impact across the legal community and the community more generally.”
I agree. I spent a portion of yesterday trying to problem solve with a brilliant, hardworking, ethical and professional law graduate and accepted bar examinee. This student also excelled in clinical practice. Like other examinees, this immune compromised student, who is normally efficient, excellent at focus and time management, and extremely organized is being distracted from bar study by
trying to keep up on what is safe to do as the virus surges again
changing bar expectations and information across the country
concern about friends and family who live in other states
Rent issues while studying for the bar in a safe appropriate place in the Capital NY Region
Figuring out when to move to a more expensive city where a more challenging living situation but good job is waiting
Fear that NYS will once again punt making a hard decision by delaying exam dates until October which continues unemployment for this graduate and many others.
It is time to provide certainty and provide New York law graduates with a diploma privilege tied to other indicators of professional promise as outlined previously on this blog here and here.
This fall, American universities will face their modern rendezvous with destiny as they make momentous decisions whether to protect large communities from death and disease. Most universities plan to conduct in-person classes and are likely to become semester-long virus incubators if they stick to those plans.
The situation would be very different if all government leaders in the US took diligent action to stamp out the virus and virtually all citizens acted responsibly to protect people they come in contact with.
But, sadly, that’s not the case. Here’s a headline in today’s paper: “7-Day Average Case Total in U.S. Sets Record for 27th Straight Day. Local officials issued dire warnings about the spread of infections, blaming outbreaks on early reopenings and saying the virus was rapidly outpacing containment efforts.”
Foreseeable Dangers
Consider the following scenarios described by Kevin Gannon, a history professor at Grand View University and director of the Center for Excellence in Teaching and Learning, in a post worth reading, “The Summer of Magical Thinking.” He writes that administrators are treating faculty and staff as “cannon fodder.”
So…what’s your college or university doing about the fall semester?
According to the aggregate results for over 1,000 higher-ed institutions aggregated by The Chronicle of Higher Education, the most likely answer is “planning for in-person” instruction—61% of the colleges and universities in this dataset have said this is their plan. The next most prevalent answer is some sort of hybrid model (20% of the institutions), with only 8% “planning for online” (one has to assume that a large portion of this group is the Cal and Cal State systems), and a mere 3.7% who have yet to decide. What strikes me about this data is that out of over 1,000 institutions of higher learning, over eight hundred of them are planning on at least some degree of face-to-face instruction, with three-quarters of that cohort proceeding as if that will be the dominant mode for the fall semester. Business as usual, apparently.
. . .
What are you going to do when folks don’t adhere to those community expectations? What happens if a student comes to class without a mask and the instructor is immuno-compromised, so they ask that student to mask up or leave? Who is responsible for wiping down tables and chairs between classes? Do you really think social distancing will happen in building hallways and common spaces between classes? What if a student tests positive for the virus, and one of their instructors decides they need to go into quarantine because of a family member’s health status? Are you going to make your employees divulge personal health information whenever something like this happens? What if you have a student who thinks masks are political discrimination and their parents back up their refusal to wear a mask on campus? What if one of your instructors gets ill? Who takes over the class? How is that determined? Should faculty have a “Covid Buddy” just in case? How are you going to avoid getting sued? Even if you have people sign waivers (HA!), doesn’t the very act of seeking that release of liability serve as evidence you’re aware of the risks involved? Has anybody involved community leaders in their strategizing about the fall semester? Colleges and universities exist in larger communities, and the residents of these locales are going to be significantly affected by your institution’s choices; what are you telling them about how you’re trying to ensure their safety?
. . .
Faculty and staff can interact with literally hundreds of different students per day. How is the institution making things safe for them? What plans are in place for locations like the Business Office, Bookstore, Registrar, and Financial Aid, that are often overcrowded in normal times?
. . .
If you are an upper-level college or university administrator, you are most likely wealthy and white. This pandemic is disproportionately affecting people who are not wealthy and not white.
. . .
Let me pose another question: if your re-opening plan was an experiment, would your institution’s IRB approve it?
. . .
That’s the hard conversation we need to have, and it’s one largely absent from the panglossian statements about how awesome we’ll be able to keep things this fall. Yes, the financial stakes for our institutions are high. Yes, this is existential for some of us. Yes, remote instruction can impact enrollment. All these are bad. You know what else is bad? Dead Students. Dead Faculty. Dead Staff.
How can universities credibly expect to limit the spread of the virus in fraternities, sororities, dorms, other student housing, bars, and all the parties that inevitably will take place? Will students meeting new people in class and at parties forego having sex with strangers? If not, how many students will wear masks and stay at least six feet apart when they do so?
Read this compelling moral argument by Michael J. Sorrell, the President of Paul Quinn College: “Colleges Are Deluding Themselves. Institutions are letting their financial and reputational worries cloud their judgment about when they can safely reopen.”
If there are major spikes of illness and death in university communities during the fall, presumably they will abruptly shift to online instruction as everyone did in the spring. The universities’ financial and political interests that they are trying to protect will be harmed much more than if they plan for online instruction from the outset. Universities holding classes in person will undertake risks of huge liability exposure. And they will have caused countless preventable illnesses and deaths.
Some Faculty Pushback
The New York Times recently published this article: “A Problem for College in the Fall: Reluctant Professors. Most universities plan to bring students back to campus. But many of their teachers are scared to join them.” I recommend reading the entire article (as well as the Esquire article linked below). Here are some key excerpts.
“Until there’s a vaccine, I’m not setting foot on campus,” said Dana Ward, 70, an emeritus professor of political studies at Pitzer College in Claremont, Calif., who teaches a class in anarchist history and thought. “Going into the classroom is like playing Russian roulette.”
. . .
Faculty members at institutions including Penn State, the University of Illinois, Notre Dame and the State University of New York have signed petitions complaining that they are not being consulted and are being pushed back into classrooms too fast.
The University of Illinois at Urbana-Champaign campus is known for its lively social scene, says a faculty petition. To expect more than 50,000 students to behave according to public health guidelines, it goes on, “would be to ignore reality.”
At Penn State, an open letter signed by more than 1,000 faculty members demands that the university “affirm the autonomy of instructors in deciding whether to teach classes, attend meetings and hold office hours remotely, in person or in some hybrid mode.” The letter also asks for faculty members to be able to change their mode of teaching at any time, and not to be obligated to disclose personal health information as a condition of teaching online.
“I shudder at the prospect of teaching in a room filled with asymptomatic superspreaders,” wrote Paul M. Kellermann, 62, an English professor at Penn State, in an essay for Esquire magazine, proclaiming that “1,000 of my colleagues agree.” Those colleagues have demanded that the university give them a choice of doing their jobs online or in person.
[C]ampuses are not fortresses, and professors in states that have seen recent spikes in coronavirus infections are particularly worried. Hundreds of cases have been linked to universities in Southern states in recent days, including clusters among the football teams at Clemson, Auburn and Texas Tech, and outbreaks tied to fraternity rush parties in Mississippi and to the Tigerland nightlife district near the Louisiana State campus.
Last week, I sent this email to my university president urging the university to offer all classes online this fall. He sent a very prompt, courteous reply saying that they considered all the risks I mentioned and that they would rely on “the advice of medical professionals and public health specialists to monitor the situation should we need to go online.”
In response, I asked if they set criteria for deciding to go online. I asked how many people will have to get sick or die before the University would change course, and (not surprisingly) he didn’t specify, saying only that he would rely on expert advice and his administrative experience.
What Are You Going to Do About This?
I keep thinking about the famous (gender-neutralized) quote of John Kerry, asking about the American War in Viet Nam, “How do you ask a person to be the last person to die for a mistake?”
In these dysfunctional times, mobs of people threaten public officials when the protesters feel aggrieved by the loss of freedom to spread deadly disease. All the while, relatively few people protest the pollution of our environment with invisible killers floating in the air we breathe.
What is your school planning for the fall? Have faculty and community leaders been involved in the planning? What do you plan to do about your situation?
In support of a few different projects, I recently asked my summer research assistant to do a comprehensive review of Legislation and Regulation and Administrative Law course requirements at ABA accredited law schools in the United States. The completed list (please see file below) updates one most recently compiled by Professor Ed Richards at LSU Law School.
At this juncture, over 30 schools require JD students to take a Legislation and Regulation course (or a similarly titled course focused mainly on the role of statutes and regulations in contemporary law). At almost all of those schools the course is offered in the first year. A handful more require a course on just legislation, statutory interpretation, or the like. In addition, about ten schools impose an upper division requirement to take Administrative Law or a comparable course.
Now, perhaps more than ever, additional schools should seriously consider adding Legislation and Regulation or Administrative Law requirements. Each of the two big crises facing our country today provides yet another example of the centrality of the regulatory state—as opposed to the common law—in our legal system, thereby reinforcing the importance of exposing all law students to the fundamentals of legislation and regulation.
First, the varying government responses to the Covid-19 pandemic are acute illustrations of regulatory trade-offs—the kind that administrative agencies in numerous sectors of our society grapple with all the time: Benefits to the economy produce a cost in human life; benefits to human life produce a cost to the economy. Also, what authority do governors, health departments, and other relevant agencies have, many law students might wonder, and how did they get that authority?
Second, as to issues of police brutality and racial discrimination, the law’s response largely has come and will come in the form of legislation (or ordinances at the municipal level) and regulation. City councils consider fundamental changes to police departments, while state legislatures and Congress debate various other policing reforms. Police commissions and review boards, which are administrative agencies, are under scrutiny. Even the judicially-created doctrine of qualified immunity, which almost always insulates police officers from liability in civil suits, may very well endure in its present state unless Congress passes a statute modifying or eliminating it.
Fundamental concepts and processes of our regulatory state, several of them center stage in the issues of our day, are the focus of required courses at the various schools on the list. May that list grow each year moving forward.
This is the third of threeposts about finding opportunities in the changes we are required to make in legal education because of the rapid spread of Covid-19. The last two focused on grading and employment, this one is about teaching.
The law school classroom, as we know, is a venerable if sometimes creaky battleship. Its tendency is to keep moving on the same path and turning it is so difficult that until now all reasons for not doing so drowned out the voices of many who believed turning it was long overdue. Another barrier to change has been a lack of specific evidence combined with a deep commitment to law school “exceptionalism”-a belief that we should not adopt contemporary best practices for teaching and learning because none were developed specifically for law school. (As well, perhaps, a fear that by doing so we will make ourselves less special or less rigorous or too transparent). Going forward, this opportunity to pause and learn new things is not just about“ online teaching” but about “online teaching” as part of “excellent teaching.”
Law School Specific Resources
It is reasonable in the current crisis to seek help first from those among us who have successfully taught law online. I have learned a lot from many people and am exceptionally grateful for the generosity of people who have shared their knowledge and expertise. Anyone who has yet watched the AALS Technology Section’s webinars or visited Sara Berman’s AccessLex Institute Center for Legal Education Excellence and, of course, the Best Practices For Legal Education blog edited by Professor Mary Lynch with assistance from Jessica Haller and Eileen Roepe, is in for a treat and an immediate upgrade in knowledge, skills, and abilities. So many people have stepped in in specific disciplines to offer advice and share best-practices that if you haven’t gotten an announcement, it’s worth a search of the AALS website. The Southeastern Association of Law Schools annual SEALS conference , July 30-August 5th, will offer its programs-including its always excellent teaching & learning sessions-online (as well as in person). This may also be a good time to remember that, like the Bluebird of Happiness, help can be found at home- from our colleagues who have had to go online to accommodate family moves or, especially, from those who teach students how to “do” law as well as “think about it.” They are well ahead in their use of technology–and we should be seeking their help at every turn.
Online Education Experts Outside of Law Schools
It is no diminution of any one’s expertise to say that legal education’s expertise in online education has been severely limited by the strength of opposition that until very recently limited ABA law schools from allowing students to earn more than a few credits online. That this has changed at all is due to the success of peers in other graduate and professional disciplines who have been doing high quality distance education for at least a decade. So, 1) let’s look at the experts in online education and 2) let’s look at the materials of institutions who have devoted considerable resources to teaching excellence–and who have generously made available to all of us what they’ve developed.
Nursing education has been in the forefront of designing online education in response to the need to bring the many nurses practicing with an LPN the two years of extra college education they needed to acquire the now almost mandatory RN. Here and here are some of the imaginative things they are doing. Also, in direct response to concerns about prestige, have a look at what’s going on in business schools–which have all developed online programs. Here’s MIT, Wharton, Harvard, ,and Kellogg‘s take on online teaching. Additionally, we should look for guidance to programs at places like Stanford and Purdue Global which offer hundreds of online post-graduate programs. And finally, perhaps just as much for those who are now either law professors or Pre-K through 12 instructors, there is the example of Australia’s “School of the Air” which, since 1951, has been offering comprehensive education in every subject area to children who live in locations too remote to attend a physical school building as well as, in general, some very good teaching resources offered by various offices of Australia’s Department for Education.
Institutions Offering Just-in-Time Teaching Advice for “Crash” online education
In addition to those institutions with long experience teaching online, there are now many who were forced into doing so by the Covid-19 virus. But unlike law schools, they had in place a substantial infra-structure to support teaching across the university–and they have a lot to offer us. One of my favorite sources of help & inspiration for teaching hard things to very smart students is Harvard Medical School’s Macy Institute.
Others resources to check out are from the, of course, always excellent UFL and Texas Tech and also from Columbia, Howard, the University of Texas at Austin, and, particular, this one from Dartmouth about how to conduct remote lab activities and experiences–lots of ideas we can translate to our own experiential exercises. A quick look at the “teaching resources” of any school you’ve ever heard of may reveal a treasure trove of helpful information.
Finally, as we work to provide excellent education online we must also increase our work to make law school classrooms places that value & promote equity, diversity, and inclusion. Here are some helpful resources from Rice, UC Davis, and some info targeted directly at students with specific learning disabilities which might make online classes challenging from UNC (including some resources specifically for faculty & staff)
In conclusion, while there are excellent resources for help with online teaching specific to law, this is a great opportunity to be more open to borrowing new methods and new ideas–and I’d suggest that until we can all be together again, there is a lot out there to inspire us.
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