Best Practices for Legal Education

In recent years, the late Antonin Scalia questioned whether the traditional law school education has to take three years, with the justice griping that too many upper-level classes explore fluff and are not focused on educating students in the law.  Similarly, law school critic Brian Tamanaha has also said there should be a two-tiered system of law schools: one elite track that promotes legal scholarship, and another, non-elite track, that has a program of study that transfers basic legal skills to its students and takes just two years to complete.

President Obama, highlighting ways to make law school more affordable and lower student debt burdens, joined in the chorus, opining that perhaps law school could be completed in two years.  Obama’s concerns are shared by Tamanaha: i.e., that law school is too pricey at current tuition rates and one way to provide value to students while keeping costs down is to eliminate one year of training.

At the same time that these critics from without and within the academy have argued that law schools spend too much time with their students, the practicing bar has long lamented that when law students graduate, they are not “practice ready”: their law school training was not sufficient for them to engage fully in the practice of law when they leave law school.  Moreover, going back at least over twenty years, to the American Bar Association’s MacCrate Report, law schools have been told they are not instilling in law students the skills and values essential to the practice of law.  Echoing such concerns, and weighing in on the law-school-in-two-years debate, Justice Ruth Bader Ginsburg said that two years would be fine for a law degree, but it would not teach students the craft of lawyering nor would it instill in them the values of the profession.  Similarly, I have argued elsewhere that so-called “Law and…” courses, which Scalia decried, help round out the law school education and expose students to new ways of looking at the law and their place within the legal profession.

Indeed, it is hard to square the “law schools are doing too much” argument with the “law schools are doing too little” one.  Responding to the latter argument, schools have expanded their offerings to include more experiential components and more values-based training in an effort to prepare students to serve clients and participate fully in the profession immediately  upon graduation.

In an effort to respond to the first argument, though, a number of law schools have begun to offer two-year juris doctor degrees, including all of the credits one would earn in three years into a two-year course of study.  One would think that this would mean schools are offering students a bargain, lopping off one year of tuition for the ability to graduate a year early.  Surprisingly, most schools offering a two-year JD are not reducing tuition; they are charging students three years of tuition for a two-year course of study.

Recently, however, my institution, Albany Law School, responding to the critics, like the President, who argue that law school is too expensive, has announced it will offer a two-year JD, at the cost of two years of tuition.  Like other two-year JD programs, the academic program of study is the same in terms of how many credits students must complete to earn their degree, whether they do it in two or three years, but the cost of the program is one-third less than the traditional JD.

We believe the program will appeal to prospective students who are interested in pursuing a degree on an accelerated track so that they can get back to work sooner after starting their studies and save some money while they are doing it.  We anticipate that this will attract students who are already in the working world, who are cost conscious, sensitive to losing the three years in their professional development that a traditional three-year program would cost, and hope to enhance their credentials and earning potential in as short a time as possible.

The program is being launched with a January 2017 start date.  Time will tell whether such an approach will attract students and offer them real value, both in the short and long run.

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Just finished reading a fascinating piece in the Journal of Legal Education by Pamela Bucy Pierson, Bainbridge Mims Professor of Law at the University of Alabama School of Law.  Her article, Economics, EQ, and Finance: The Next Frontier in Legal Education,  describes the results of her survey of how law schools are covering the topics of: (1) economic trends in the legal profession; (2) emotional intelligence in issues such as managing stress, building resilience in the practice of law; and (3) personal financial planning for tomorrow’s lawyers.  The article outlines why each of these topics is essential to preparation of tomorrow’s lawyers.  Ninety-one law schools responded to the author’s survey on this topic, and the results are encouraging.   The descriptions of courses and ancillary programs addressing these topics provides a rich source of ideas for approaches to building these topics into the curriculum. So grab that copy of the Journal that is likely piled in your mailroom or read the article on SSRN. 

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As the semester starts, 1Ls face a shock as their basic required textbooks cost over $200 apiece. Publishers have realized how the used textbook market cuts into profits and have decreased the number of years between editions.

These prices are not sustainable, especially for those law students who are already squeezed to the limit.  As a librarian, I have seen more and more students relying on the textbooks on Course Reserve, even going so far as to using them in open book exams.  We fear the day when we have 5 students who want the text for their open book exam and we only have 3 copies.

At the same time, as a library, becoming a textbook supplier helps our students, but it also means there are other materials that we cannot acquire or license.  With this bundle of challenges, there should be an easy solution, but most faculty who assign textbooks are removed from the cost of the assigned text.

Intellectual property textbook authors are at the forefront of this wave of change with several free and low cost alternatives. For examples, see Semaphore Press and Clause 8 Publishing, but there is also quite a bit going on beyond IP, notably e-Langdell (CALI). At that site, you can find texts on torts, sales, contracts, etc. It is no longer an excuse that there are no alternatives to traditional legal textbooks.

Some faculty have started creating their own textbooks, and many of those have matured and are now distributed, but some live primarily on Canvas or TWEN pages.  For those of you who have done this, why not make your materials more widely available?  Yes, they might not be as perfect as you would like, but what is?  Help students around the country by freeing your course materials.  If you are not sure how to do it, contact your AALS section or contribute to H2O, a legal crowdsourcing site associated with top names in the field.  If you are looking for edited cases and course structures, it should be a first stop if you would rather not edit a new case when someone else already has.

In short, the time to embrace alternatives to traditional textbooks, even for traditional subjects has arrived.  Imagine if you could give each of your students $200 . . . well, you can.

For more on this topic, see James Grimmelman, Alternative Publishing Models for Cost-Conscious Professors, and Ben Trachtenberg,  Choosing a Criminal Procedure Casebook: On Lesser Evils and Free Books

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As we ready ourselves to begin a new academic year, I wanted to offer some suggestions for inspiring reading.  Perhaps you will even consider, as I am, starting a faculty reading group to grapple with related issues.

Implicit Bias and its Consequences.    I suspect that many of you have continued to reflect about how “black lives matter” and how we might encourage our law students to grapple with related issues.  I strongly recommend a new book, out in paperback just last week, from one of the principal researchers on implicit bias.  The authors are Mahzarin R. Banaji and Anthony G. Greenwald, and the title is Blind Spot:  Hidden Biases of Good People (Bantam Books, 2016, $17.00, available from Amazon.com and elsewhere).  The authors are experts on the ”implicit association test”  (available at https://implicit.harvard.edu/implicit/takeatest.html ), a tool used to explore the relationship between visual stimuli and perceptions.  For more background, see https://www.projectimplicit.net/index.html .  The test involves responding to various sets of paired visual stimuli, such as black and white or Asian and non-Asian faces.  https://www.projectimplicit.net/stimuli.html This highly accessible book explores the sources and nature of hidden biases, the dynamics of stereotyping, and the social implications of widespread implicit bias.  The book is highly accessible, and its research is also well-documented in footnotes.  I’m working with a former student to develop a continuing legal education program on cultural competence and implicit bias, which we hope to roll out in February.  I’m also thinking of inviting faculty and staff colleagues (and perhaps some students) to come together for lunch time reading group using this text.  I’ll keep you posted on how these efforts proceed.  I’d also encourage others to post about ways that they may be working to engage similar issues.

A Culture of Assessment.  Culture plays an important but potentially negative role in shaping implicit biases and stereotypes.  Culture can also be shaped in positive ways to improve institutions.  I recently read Professor Andrea Funk’s manuscript for “The Art of Assessment,”  forthcoming in January 2017 from Carolina Academic Press (http://www.cap-press.com/books/isbn/9781611637359/The-Art-of-Assessment).  This book, too, would be a wonderful choice for a faculty/staff reading group.  As most readers know, the American Bar Association now requires law schools to set “learning outcomes” for students, adopt more comprehensive forms of assessment and develop plans for “ongoing evaluation” of their “program[s] of legal education, learning outcomes, and assessment methods.”  Many in legal education fear that these new standards will result in intensified bureaucratic burdens.  Professor Funk, on the other hand, sees them as offering a new arena of creative activity, a space for engaged inquiry, a means of helping students learn more effectively, and a framework for building institutional pride.

Professor Funk’s book focuses on how individual faculty members and their schools can create a culture of assessment, perhaps the most crucial but often invisible element in achieving an energizing and constructive assessment process.  She is very effective in deconstructing opaque language and concepts, suggesting methods for getting started, and creating a sustainable assessment cycle.  She offers important tips on building on existing practices, gathering and using information, grappling with doubts about why and how assessment can work, and building institution-wide interest and commitment.  This is a book that gives readers important tools, but goes further, by illuminating the real potential of assessment for teachers, learners, and educational institutions.  It puts me in mind of Parker Palmer’s wonderful The Courage to Teach, with its uplifting willingness to confront fears but build on hopes that are dear to the hearts of the best law teachers:  helping students learn, working with colleagues, and “teaching from the heart of hope.”

I hope your coming year will be a fruitful one.  Important conversations with colleagues, spurred by books like these, can help make it so.  Please share your own suggests with others on the Best Practices Blog!

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Looking to add experiential learning to your law school course but not sure where to start or what to add? There’s a list for that!

As we start another school year, let me take this chance to mention the list of experiential learning resources that I maintain and update on an ongoing basis. You can access it here:

goo.gl/59KlUP

In the list, you’ll find experiential learning resources sorted by topic, including books, articles, simulation ideas and examples, and links to numerous databases that host even more materials.

Don’t see a resources that you are familiar with? Or have an idea that isn’t on the list? Send it to me! I update the list regularly, and I’d love to add your materials so the international community benefits from your ingenuity.

I should highlight especially that the list includes the ABA Guidance Memo on experiential learning. As we enter a year of site visits that will address, among other topics, the revised 303(a)(3) and 304 standards on experiential learning requirements and simulation courses, you’ll want to be familiar with that memo’s recommendations.

Hope to receive your list suggestions soon!

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The millennial worker is an educated consumer armed with details about the global economy. They acquire knowledge that provides factual comparisons of how similar professionals work-life is balanced in other countries versus the many demands of the American lawyer.

In externship classes, students hear about the work life of attorneys in various office settings and explore how their values may merge in the professional world. Even more interesting, the students who gain an international perspective and further enlighten the class. For example, I recently had a student return from an internship in a Sweden.

The student shared:

“I have a desk that can be raised and lowered so I can stand and work. My work phone is an iPhone and there is free lunch here every day! We only work until 4 pm and the attorneys are only required to do 1000 billable hours per year!!! It is all about streamlining and efficiency here.” The student further remarked about the clear message that is sent when a society endorses such a model: We want you to be happy and produce quality work.

As a legal educator, how do you defend the 2100 billable hour or the underfunding and understaffing of government offices? How do we arm our students with grit and resilience for more than the first few years, but a lifetime of sacrifice?

Students interning or externing at law firms or other placements quickly notice the deficient message our American profession endorses. Over and over again, I hear in my classroom students remark about the inadequate time lawyers have to invest in family or pursue individual interests.

So, why are less people deciding to become lawyers? Because, the millennial worker is focused on community values, family, and life balance and our profession continues to pay lip service to such values. The time for reform is now. Reform not just focused on legal education, but the profession as a whole. If we do not readily restructure our value set, work habits, hiring practices, funding sources and curricula, we will lose the next generation of brilliant change makers. Both our profession and society crave such reform, specifically to foster leaders who will pursue justice, uphold government, adhere to the rule of law and build community.

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I’ve just returned from the Legal Writing Institute’s Biennial Conference held in Portland, Oregon.  With hundreds of attendees presenting on a variety of topics in workshops, panel discussions, coffee sessions, and a plenary, I am more inspired than ever to incorporate new and innovative teaching ideas into my course, produce scholarship that contributes to our field, and continue to serve my law school as we navigate implementation of the ABA’s new standards.  I want to thank all who contributed to the event for sharing their knowledge.

There was, however, one overriding issue which tempers this enthusiasm and inspiration:  the continued battle legal writing faculty face in striving for equal status within their law schools.  While it is true that many have made positive strides, the empirical and anecdotal information shared over the course of the conference shows that there is still far to go.   The Legal Writing Institute (“LWI”) the Association of Legal Writing Directors (“ALWD”), and the Society of American Law Teachers (“SALT”) have formally adopted a policy statement on full citizenship for all faculty.  Here is the text of the statement:

The Legal Writing Institute is committed to a policy of full citizenship for all law faculty. No justification exists for subordinating one group of law faculty to another based on the nature of the course, the subject matter, or the teaching method. All full-time law faculty should have the opportunity to achieve full citizenship at their institutions, including academic freedom, security of position, and governance rights. Those rights are necessary to ensure that law students and the legal profession benefit from the myriad perspectives and expertise that all faculty bring to the mission of legal education.

LWI launched a campaign for individual signatures which began at the conference and will continue.

A recent article also discusses the impact of the lack of full citizenship for a group of faculty who are largely female: Stars Upon Thars: Law Schools Use ABA Standard 405(c)’s Tenure Like Security of Position to Discriminate Against Female Legal Writing Faculty, 34 Law. & Ineq. 137 (2016) by Melissa Weresh from Drake Law School.  This article addresses the potential for exploitation of law faculty members who hold ABA Accreditation Standard 405(c) status (“reasonably similar to tenure”) and the likelihood that such exploitation will have a disparate and discriminatory impact on a predominantly female cohort of law faculty.

After attending multiple sessions which discussed the push for full citizenship, as well as the possible discriminatory impact of the lack of this citizenship, I’m left wondering: what message are we sending to female law students about the role of women in law school and the  practice of law?

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A couple of weeks ago, I had the good fortune to listen to Doug Lemov speak about his new book on the WAMC radio show “To The Best of Our Knowledge.”  The book, co-authored with Colleen Driggs and Erica Woolway, is entitled Reading Reconsidered:  A Practical Guide to Rigorous Instruction.  Doug is an expert on teaching and education (focusing on the K-12 space).  He happens to live in my town, and our daughters have crossed paths on the soccer field, so I’ve had the opportunity to chat with Doug from time to time about his work.

In the interview, Doug speaks about the latest research in reading instruction.  He makes a number of points that resonated with me as a practicing lawyer and law school teacher.  Any errors in summarizing Doug’s remarks are, of course, my own:

• Interacting with difficult texts:  Doug explains how important it is for students to learn how to read difficult tests – particularly dense, non-fiction, and often highly specialized texts.  These are, of course, exactly the kind of texts one is likely to encounter in law school and law practice.
• Developing close reading skills:  Doug offers a definition of close reading, and then explains why close reading is so important for developing readers.  He talks about the importance of moving beyond “gist” conversations (i.e., conversations where students recount and respond to the main idea, or gist, of a text) to conversations involving a more in-depth and nuanced consideration of language, themes, choices, etc.  Again, from my perspective, these are exactly the sort of skills one needs to develop to succeed in law school and law practice.
•  Working with archaic texts:  Doug makes the point that archaic texts can be challenging for readers.  He argues that students who do not have the opportunity to interact with archaic texts during middle school and high school may find it difficult to make the jump to this sort of material  in college – where they will regularly encounter older texts such as the Declaration of Independence, The Canterbury Tales, Darwin’s Origin of Species, etc.  As someone who teaches contracts, this is (ancient?) music to my ears.  Try teaching cases like Hadley v. Baxendale to readers who have never encountered older British texts, for example!
• Developing autonomy as a reader:  Finally, Doug talks about what it means to be an autonomous reader – i.e., a reader who can engage deeply with written material; a reader who asks his or her own questions and does not simply respond to the teacher’s prompts; a reader who examines author perspective, bias, etc.  This, too, seems relevant to my experience as a teacher and practicing lawyer.

For all of these reasons, my first thought was that Doug’s book might have useful teaching tips for me.  I am reading — and highlighting — the book for this purpose now!  In chatting with Doug over email, however, we identified another issue associated with reading skills and reading instruction – namely, justice and access to the profession.  If a student does not develop strong reading skills by the time he graduates from high school, that student may struggle in college.  If a student struggles in college, she may not be in a position to apply to law school.  And, if a student is not in a position to apply to law school . . .  well, it’s hard to become a lawyer if you don’t have the degree.  Reading and writing – along with legal reasoning – are at the core of the work of a lawyer.  The idea that talented students may not be in a position to apply to law school — or may struggle in law school —  due to gaps in reading instruction or experience pains me.

Here in New York, Doug’s points likely will get linked to debates about the common core.  The common core is, of course, a highly controversial issue in education.  Teachers, students, and parents have raised questions about the rollout of the common core (and common core testing) here in New York.  There have been discussions about the quality of the tests and curricular materials; debates about whether to let your child take the tests, or whether to opt out, etc.  As the mother of two children in the thick of standardized testing, I feel the pain on these issues on a personal level.  And, because I have to deal with the reality of the bar exam in my teaching, I think about strengths and weaknesses of standardized testing on a professional level, as well.

I am not writing today to comment on the common core or standardized tests, though I am an enthusiastic participant in debates about these issues.  Instead, I simply wanted to react to Doug’s thoughtful work as a fellow teacher.   As a teacher, I cannot assume that my students have had exposure to difficult or ancient texts prior to law school, nor can I assume that my students are trained in close reading.  I also cannot assume that my students are autonomous readers.   For all of these reasons, I need to commit — every single day – to helping my students master the reading skills that are necessary to thrive in law school and in the practice of law.    I also need to do more to ensure that students who want to be lawyers get to my classroom in the first place.

•  Here is a link to the interview, in case anyone is interested:  http://wamc.org/post/1339-reading-reconsidered#stream/0

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