Best Practices for Legal Education

As you know from earlier posts,  the ABA Standards Review Committee is having a meeting on its proposed revisions in January during the AALS conference. 

Best Practices author Roy Stuckey has submitted comments to the Committee (copied below).  What do you think of Roy’s comments? of the revisions? Should the Best Practices Implementation committee take a position? 

MEMORANDUM

TO:     Standards Review Committee, ABA Section of Legal Education and Admissions to the Bar

FROM:   Roy Stuckey, Professor Emeritus, Univ. of South Carolina School of Law 

DATE:  December 21, 2009 

RE:  Outcome Measures for U.S. Law Schools 

I offer these comments about the Student Leaning Outcomes Committee’s report for discussion at your January 8-9, 2010, meeting.  I am sorry that I will not be able to attend the meeting.  As explained in more detail below, my suggestions are:

1.         The Committee should either delete or substantially modify proposed S303(a)(4). 

2.         The proposed Standards should give more emphasis to the development of self-reflective skills. 

3.         The Committee should clarify the meaning of S302(b)(2)(iii).

4.         The Committee should reconsider the placement and description of skills in Alternative Two of proposed S302(b)(2)(iii).

My reasons for making these suggestions are explained in the following sections: 

1.         If adopted, the current language in proposed S303(a)(4) could be more harmful than helpful to legal education.  It says:  A law school shall offer a curriculum that requires every student to complete satisfactorily at least one appropriately supervised learning experience in either (i) a substantial simulated exercise that engages students in performances of professional skills involving a type of case or problem that practitioners encounter; or (ii) a live client clinic or field placement.

The potential harm here is in the implicit suggestion that ABA-mandated and school self-identified skills could be acquired in a single simulated exercise or a single clinical course.  Anyone who has tried to teach professional skills knows this is impossible.  Further, this language also suggests that simulated exercises, live client clinics, and field placement are equally effective and efficient at teaching the same lessons, including professional skills instruction.  This is a misconception.  Each method of instruction has unique strengths.  There is some overlap, but there are also significant differences, as my co-authors and I point out in Best Practices for Legal Education (2007) at pages 168-173, 180-184, 189-193, and 198-200. 

I submit that the accreditation Standards would be improved if this proposal is withdrawn.  Proposed S303(b)(1) (which is a modified version of existing S301(b)(1)) should be retained:  A law school shall provide substantial opportunities to students for (1) live-client clinics or other real-life experiences; . . . .

 I think we all know, as the Carnegie Report concluded, that law schools should provide multiple opportunities for students to engage in supervised law practice, but, unfortunately, we also know that most law schools would resist a mandate to do so from the ABA. 

I wish the committee would reconsider the recommendation of the Ad Hoc Working Group on Learning Outcomes to include a standard requiring law schools to offer a curriculum that requires all students to participate in multiple courses in which they perform well-supervised authentic legal work on realistic legal problems designed to encourage reflection by students on their professional experiences, the values and responsibilities of the legal profession, and the development of the ability to assess one’s own performances, levels of competence, and professional judgment.

 While not mandating any particular method for accomplishing the desired learning outcomes, this proposal makes it clear that students must participate in multiple courses in order to become adequately self-reflective about their professional development.  The importance of being self-reflective is discussed in the following section.

2.         An earlier version of the Learning Outcomes Committee’s report proposed adding the following language to S301, which describes the overall objectives of legal education:  S301(c) A law school shall strive to produce graduates who are reflective practitioners and who have the capacity and motivation to pursue expertise throughout their careers.

Language similar to this is in existing S302(b)(1): A law school shall offer substantial opportunities for live-client or other real-life practice experiences, appropriately supervised and designed to encourage reflection by students on their experiences and on the values and responsibilities of the legal profession, and the development of one’s ability to assess his or her performance and level of competence.

Of course, the development of self-reflective skills can be enhanced by educational experiences other than live-client or other real-life practice experiences, so I agreed with the initial decision to move the language into S301.  In the new draft, however, proposed S301(c) has disappeared, and Interpretation 303-3 was added on page 4:  I303-3.  A law school’s curriculum should encourage reflection by students on their values and experiences and on the values and responsibilities of the legal profession, as well as the development of one’s ability to assess his or her performance, professionalism and level of competence.

It is clear that the Committee wants law schools to produce reflective practitioners, as it should.  I do not understand the politics that resulted in the decision to move this language out of a Standard and into an Interpretation.  The skill of self-reflection should at least be on the list of mandated outcomes in S302(b)(2)(I), if not in S301. 

This is what the authors of the Carnegie Report said about the value of self-reflection:

Practical judgment depends on complex traditions of living, which can only come alive through apprenticeship experiences with exemplars of inherited judgment and skill.  Thus the apprenticeship of skill takes on critical aspects of the apprenticeship of professional identity and ethical meaning.

 For this reason, professional schools cannot directly teach students to be competent in any and all situations: rather the essential goal of professional schools must be to form practitioners who are aware of what it takes to become competent in their chosen domain and to equip them with the reflective capacity to pursue genuine expertise.  [Carnegie Report, p. 173]

Experience in the Daniel Webster Scholars’ Program in New Hampshire reinforces this point.  In that program, which allows graduates to be admitted to the New Hampshire bar without taking the bar examination, bar examiners, judges, and lawyers assess the portfolios of students enrolled in the Program to determine whether those students have the necessary knowledge, skills, and values to become competent lawyers.

The Director of the Program, John Garvey, reported at the Assessment Conference in September that the first thing those experts look at when assessing a student’s portfolio is the students’ self-critiques and self-reflections, because they recognize that a critical component of an effective and responsible lawyer is the ability to identify what one does not know and the ability and desire to achieve the necessary level of expertise.

If the development of self-reflective skills should indeed be the essential goal of legal education, it should be among the mandatory outcomes in S301 or S302, not just in an interpretation of S303.

3.         I am confused by the phrase “sufficient depth and breadth” in both alternatives to proposed S302(b)(2)(iii).                                  

S302(b)(2) requires “proficiency as an entry level practitioner,” thus, S302(b)(2)(iii) as proposed would read:  The learning outcomes shall be consistent with and support the stated mission and goals of the law school.  The learning outcomes shall include:  proficiency as an entry level practitioner in: [Alternative One]  a sufficient depth and breadth of other professional skills that the law school identifies as necessary for effective, responsible and ethical participation in the legal profession.

It does not seem to me that the phrase “sufficient depth and breadth” has any meaning.  If it does, please explain what it means.   If it does not, please remove it.

4.         I am also confused by the placement of the list of skills in Alternative Two to S302(b)(2)(iii).   . . . , which shall include trial and appellate advocacy, alternative methods of dispute resolution, counseling, interviewing, negotiating, factual investigation, organization and management of legal work, and drafting. 

If these skills are under consideration as mandatory outcomes, why put them here instead of as additional skills to consider adding to S302(b)(2)(I)? 

If the goal of the Committee is to produce a list of the basic skills that every lawyer should possess upon graduation from law school, I would note that very few lawyers practice in appellate courts, so appellate advocacy is a strange candidate for a mandatory list, as are trial advocacy skills. 

I encourage the committee to continue trying to come up with a list of skills that all law school graduates should have, but I would also point out that the MacCrate Report’s statement of skills and values does not recommend that law school graduates should possess entry level proficiency in lawyering skills.  Rather, the MacCrate Report uses language like, “a lawyer should be familiar with the skills and concepts involved in [a particular skill].”  Perhaps the committee should use similar language with regard to appellate advocacy, trial advocacy, and other skills in which entry level proficiency is not necessary. 

Thank you for considering my comments.  Good luck on your continuing work.

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Outcome Measures matters will be the subject of a panel on Friday afternoon put on by the AALS Executive Committee Forum with the ABA Section on Legal Education and Admission to the Bar, entitled Requiring Law Schools to Measure Student Learning: A Forum on ABA Accreditation Standards, 4:00 pm – 5:45 pm (general materials on Standards Review matters, including CLEA’s comments to date are available and others should be posted later) at http://www.abanet.org/legaled/committees/comstandards.html).

The Standards Review Committee will meet in conjunction with the AALS meeting, and as always their meetings are open.  They will be meeting on January 8, 2010 from 8:30 to 3 pm and on January 9, 2010 from 8:30 to noon in Studio 2 at the W New Orleans, 333 Poydras Street, New Orleans, LA 70130.  CLEA representatives will be present and would love the company for some or all of the time…when we have a final agenda we will share it.

[From CLEA President Kim Diana Connelly.]

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The theme of the regional conference at Albany Law School last week was “Developing and Defining Measurable Goals for Teaching Law Students.”

On the Tuesday night before the conference, I received a copy of  proposed changes to ABA Accreditation Standards 301-305.  I will tell you a little about the new proposals, but you should read the entire document with some care.  If the proposal is adopted in anything resembling its current form, it will change legal education.  You can access the document on the website of the ABA Section of Legal Education and Admissions to the Bar at www.abanet.org/legaled/committees/comstandards.html.  Look in the section on “drafts for consideration at Standards Review Committee meetings.”  The document you are looking for is the “Learning Outcomes” draft that the committee will discuss in New Orleans on January 8-9, 2010 during the AALS meeting.

Here are two excerpts to get your attention: 

1.  “Standard 302, Learning Outcomes.  (a) A law school shall identify, define, and disseminate the learning outcomes it seeks for its graduating students and for its program of legal education to enable its students to participate effectively, responsibly and ethically in the legal profession.”

2.  “S302(b)(2) … The learning outcomes shall include . . . (2) proficiency as an entry level practitioner in:  (i) legal analysis and reasoning, legal research, problem solving, written and legal communication in a legal context;  (ii)  the ability to recognize and resolve ethical and other professional delimmas;” . . . . and more; . . . “(4) any other outcomes the school identifies as necessary or important to meet the needs of its students and to accomplish th school’s mission and goals.”

And don’t miss Standard 304, Assessment of Learning Outcomes and Institutional Effectiveness.

These proposals are not finalized, of course, but the ABA is quite serious about converting the accreditation Standards to an outcomes-focused approach rather than its current inputs-focused approach.  I support this new direction, even though I think the current proposal needs some work.

After you take a look at the proposal, share your reactions on this blog site. 

Enjoy, Roy

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Deadline for Panels and Papers–January 15, 2010

Teaching in a Transformative Era:

The Law School of the Future will examine the most pressing challenges law schools face in the 21st century.   In the midst of the nation’s worst economic crisis since the Great Depression, law schools must stay relevant and incorporate a curriculum that keeps pace with recent macroeconomic and social changes. Law professors must address a new phase of corporate and collective responsibility as well as the increasing need for social and economic justice in struggling communities nationwide and globally.

Law schools must improve the admission and graduation of lawyers from a broad range of racial and ethnic backgrounds who will be prepared to serve their communities in the wake of the current global economic crisis. They must also address rising student indebtedness without sacrificing quality.

Because the conference coincides with the American Bar Association’s review of law school accreditation standards, it provides an opportunity to examine structural issues such as erosion of tenure, evolution in status relationships among law faculty, and the broader tensions between accreditation standards and economic and social trends in America.

This conference provides an opportunity to engage in broad, supportive discussions about teaching. We are seeking ideas for a range of sessions including panels and workshops that fit within the conference themes, and we encourage proposals from small groups of three or four as well as from individuals. If you are proposing a panel discussion, please note whether you would be open to an additional speaker. We welcome a variety of session formats from formal papers to more informal discussion topics.

Please send your proposals to Ngai Pindell by January 15, 2010. We are currently seeking journal commitments for publication of conference papers.

Other members of the SALT Teaching Conference Committee include Raquel Aldana, Fabio Arcila, Elvia Arriola, Margaret Martin Barry, Patti Falk , Angela Onwuachi-Willig, and Aviam Soifer.

Please share information about the Teaching Conference with your colleagues, particularly new and junior faculty, who are not yet members of SALT.

Download 9-09SALT Call for Panels and Papers(2)

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On December 4, 2009, Albany Law School Dean Thomas Guernsey and keynote speaker Roy Stuckey headlined the 2009 Northeast Regional Conference “Developing and Defining Measurable Goals for Teaching Law Students.”

Professor Stuckey, author of Best Practices for Legal Education and a Distinguished Professor Emeritus of Law at the University of South Carolina School of Law, spoke about “Setting Measureable Goals for Law Student Teaching,” calling out legal education for preparing students to think like appellate judges rather than lawyers.

The conference, hosted by Albany Law School, focused on the importance of setting measurable learning goals and implementing them in both the clinic and non-clinic classroom setting. Participants discussed both general trends in curriculum reform and specific ways to develop goals to measure student learning.

Professors from Syracuse University and The College of St. Rose discussed “Pedagogy and Course Goals.”

The conference was sponsored by the AALS Section on Legal Education, Albany Law School, Syracuse University College of Law, University at Buffalo Law School and Vermont Law School.

Audio of the conference’s presentations,  including Professor Stuckey’s Keynote address.

2009 Northeast Regional Conference at Albany Law School

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I recently returned from Serbia and Macedonia on a Public Interest Law Institute trip to help assess which Balkan law schools should join PILI’s expanding legal education reform project. Some professors were surprised that US law schools are also wringing their collective hands about how to give ideally all law students more meaningful experiential learning opportunities. But what really surprised our counterparts is that US law graduates can sit for the bar and get a license whether or not they’ve had any practice experience. Indeed, according to The Equal Justice Works Guide to Law Schools, most schools don’t collect information about whether their students had any hands-on experience before getting a diploma. Continue reading →

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John Burwell Garvey, of Franklin Pierce Law Center and Anne F. Zinkin, of the New Hampshire Supreme Court have published a paper entitled, “Making Law Students Client-Ready: A New Model in Legal Education.”   The primary focus of the paper is to detail the Daniel Webster Scholar Honors Program, which among other advantages, allows successful graduates to bypass the traditional bar exam before being admitted to practice in New Hampshire.  

Click here to download the article from SSRN.

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When in North Dartmouth (Massachusetts), go with the flow, and be creative.  That’s what Carrie and Mary did today, Oct. 15,  at their Best Practices presentation at Southern New England School of Law (SNESL).  They adjusted to a colossal late-night technological glitch (Mary’s laptop crashing prior to sending Carrie the slides!) without a hitch (or at least without their audience noticing the hitch).  None of us could tell that they had finished their preparation in the car on the way from Connecticut to North Dartmouth! 

While there was a bit of “preaching to the converted” with Justine Dunlap’s and my presence, several participants had never heard of the BP movement in advance of the meeting, and others had only engaged with it once, a couple of summers ago at an informal gathering at my house.  The level of participation was impressive, and included full-time faculty along with writing faculty, adjuncts, and graduate clinical fellows.  In addition, the participants’ willingness to engage the presenters’ requests — by breaking-off into small groups to address questions Carrie and Mary assigned us – indicated, may I suggest, a willingness to work both individually and cooperatively to improve how we do what we do at SNESL.  The questions Carrie and Mary asked us to address in our small groups included the following: (1) where people thought SNESL was, within the context of the BP movement, (2) what SNESL does well, and (3) where we can improve.  What was encouraging, given that the group has on the whole been working together for many years, was the level of enthusiasm in the small groups; it was difficult for our leaders to get us to break out of the small groups and return to the larger group to share our findings.  But when we did, there were some clear themes, which the presenters encouraged us to continue to address together  throughout the year.

While I can’t judge the level of enthusiasm with which the participants approached the event, it was clear that, while it lasted nearly 2 hours, several participants would have stayed longer had the room not been overtaken by students coming in to take a midterm (which, our presenters noted, was a positive sign, given that assessments were being done at mid-semester!).

 I’m writing at the end of this energizing day, before receiving the presenters’ feedback: a summary of both the responses to the small-group questions and anonymous responses we were encouraged to offer.  It may, then, be too soon to judge whether we at SNESL will use today as our starting point for a serious commitment to the Best Practices Movement.  But I do feel confident that, whether or not the group as a whole moves together into the Movement, some of us within the group will surely address our self-identified “could be improved” aspects (assessment being frequently mentioned) and, through that work, join with the Movement towards the future of legal education.

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A few weeks ago, we were fortunate to host a group of educators who are interested in interdisciplinary collaborative education in the form of partnerships between law schools and the health professions at a conference held at Georgia State University College of Law.  Antoinette Sedillo Lopez recently posted about collaborating with other departments in your university, which is a great place to start. 

For those of us interested in partnering with the medical profession, however, the existence of a medical school within our university is not necessarily required.  There is no doubt that collaborating with professors and students from different institutions can be challenging, but law schools are doing it in a number of different contexts.  For example, our clinic is engaged in collaboration with both Emory University School of Medicine and Morehouse School of Medicine, to hold joint classes between law students and medical students and residents. 

Even great distances have shown to be little deterrence to professionals who truly want to participate in interdisciplinary collaboration, as Liz Tobin Tyler of Roger Williams University School of Law can attest.  Her law students commute approximately one hour to share a a classroom with students from Brown Medical School who are taking a seminar entitled, “Law, Medicine and Ethics.”

The learning benefits of interdisciplinary education have been described in different ways.  The encouragement and inculcation of synthetic thinking, the holistic approach to client and patient care and the understanding that clients do not live in a vacuum, the creation of a new generation of creative problem-solving professionals, and improved outcomes for clients and patients are a few. 

What does it mean to students?  Consider these comments from one of my students, reflecting on her experiences sharing case rounds with residents and participating in patient rounds at a hospital:

Through each of these multi-disciplinary interactions, I form a more complete picture of how my clients’ illnesses affect their daily lives.  I learn more about where my clients and their physicians are coming from.  Most importantly, I am connected with resources that provide evidence to help legally establish medical conditions.  Each of these things makes me better able to serve my clients.  Medical educators and law professors should seek to promote multi-disciplinary interactions among their students as much as possible – patients, clients, students, and even the professors will benefit from such collaborations.

One conference participant shared that he initially did not believe that such a collaboration was possible because of the location of his law school and the absence of a medical school nearby.  He confessed to asking himself, “Why do this?”  After hearing about examples from other schools, he ended up asking, “Why not?”

Are there other ways that we can incorporate interdisciplinary experiences for ourselves or students to benefit our teaching and student learning?

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Communication and Jounalism departments can help you with focus groups to get ideas from alumni and lawyers in your community about the skills and values students should learn in law school. Medical school models of assessment can be great sources for skills based assessment. University accreditation initiatives are likely to involve a review of assessment priorities. Other departments around campus may have structured assessment initiatives that good be helpful and be a source for terrific speakers. Co-teaching with someone from another department will enrich teachign expertise and assessment ideas. We have used these resources in the past at the law school.

My advice for tapping these resources is 1) get involved with different teaching and assessment initiatives developed at your university and 2) participate in projects wtih professors from other departments and then introduce teaching and assessment as a topic. 3) call professors you know are doing interesting and innovative things and invite them to lunch. Insights from other disciplines informed the Best Practices Book and there is nothing like continuing the learning with your colleagues from other departments.

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My colleague Mary Lynch asked me to share a project my bioethics students just completed.

I asked the 14 students in my Bioethics seminar to research the legal and ethical implications for Albany Law School of an H1N1 outbreak, and to work together to draft a memo outlining any policy changes the class would recommend to the Administration as a result of its research. The class worked on the project intensively for the better part of a week and a weekend. Although they had some disagreements, they reached consensus and drafted an impressive ten page memorandum that set forth the rationale for policy changes, the issues raised by a potential H1N1 outbreak, the applicable ethical and legal principles, and their recommendations on institutional responsibilities, attendance polices, isolation, school closures, vaccinations, and alternative means of instruction. They supported their recommendations with citations to the CDC, the state health department, the WHO, and other authoritative sources.

I was impressed enough with the students’ work product that I submitted their memo to the administration. The associate dean let the class know that the administration was persuaded by and grateful for the students’ input. She told the students that they should expect to see many of their recommendations incorporated into the school’s policy.

In reflecting on the project, the students noted how difficult but how satisfying collaborative work can be. They said they put many more hours into this assignment than they had other assignments — in large part because they felt their work might really make a difference.

Overall, I think the students learned a lot about public health ethics and policy drafting from the exercise. I’d love suggestions from blog readers about how to turn an exercise like this into a graded exercise. Given how much time the students put in, I think they should probably get more than class participation points for their work, but I worry about grading group projects.

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In  September of 2008, the ABA’s Council of the  Legal Education and Admissions to the Bar Section (Council) began a comprehensive review of  the ABA Standards and Rules of Procedure for the Approval of Law Schools  relying on the work of the Standard’s Review Committee (SRC).   On October 9th, 2009, at the last of its currently scheduled meetings, the Council’s Standards Review Committee will be considering a proposal of the Student Learning Outcomes Subcommittee .  http://www.abanet.org/legaled/committees/comstandards.htm

It is worth a look at the ABA site to read the thoughtful and plentiful comments.  The Council’s comprehensive review may result in significant changes in how law schools are assessed and “incentivized” (I abhor that word but if fits here). Cogent comments from Law Librarians, the Institute for Law Teaching & Learning,  the AALS Clinical Section’s Clinical Skills Committee, CLEA and other individuals and organizations are listed . 

 On October 2nd, the Society of American Law Teachers (SALT)  submitted comments in response to the proposal, noting SALT’s long support of a shift in accreditation standards that would result in law schools consciously focusing on their students’ acquisition of the knowledge, skills and values needed for the practice of law.  SALT particularly applauded the inclusion of essential values and  the references in proposed 302(a) (3) to a “lawyer’s ethical responsibility” for the quality and availability of justice and in 305 to “law as a public profession calling for performance of pro bono legal services and public service activities.” 

Notably, on page 3 of the letter, SALT focuses on experiential learning and makes mention of the “important insights” of the Carnegie Report and Best Practices that “students learn best when they are performing real life lawyering tasks.”  The letter also encourages the Committee to provide clear Interpretations which encourage schools to provide multiple experiential learning opportunities which are “well-supervised” and “designed to encourage reflection” 

SALT’s letter is worth a read.  It is a broad-based group of diverse professors who teach both experientially and non-experientially and cannot be dismissed as representing just one group of teachers within academia.    Meanwhile, we wait to see how the Standards Review Committee responds on Friday.

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