John Laude recently wrote a great article describing how faculty might anticipate changes that would affect legal practice and how to adjust their teaching accordingly. Within the article, John specifically refers to dispute resolution. This is the link to the great read:
http://www.indisputably.org/?p=9280
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Recently, a fellow blogger sent us a very helpful tool, that we wanted to share with our readers. Last year, during the 2015 AALS Clinical Conference, a series of informative videos was created for law professors about the complications associated with law teaching. The entire series is about an hour long, with each individual video being only about 5 minutes long. These videos address some of the important pedagogical issues that law professors are currently grappling with, such as assessment, adding experiential learning to doctrinal courses, reflection, and technology.
This in the link to the entire series:
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I recently attended the Emory Transactional Law conference (which was excellent, as always). The conference is held every two years; this was their fifth. Earlier in the spring semester, while I was putting together my talk (on What Law School Curriculum Committees Can Learn From Architecture Schools) I noticed that the Institute for Law Teaching and Learning 2016 conference would be going on at the same time, as well as the Third National Symposium on Experiential Learning in Law.
There are differences in emphasis among the three conferences. But it’s fair to say that most, if not all, of the attendees at all three events are in what might be termed the “reform wing” of legal education. While the ideas being circulated at all three conferences may be familiar to most readers of this blog, and while those ideas are being incorporated into law school curriculums throughout the country, the reform movement (broadly construed) still does not command a majority position in legal education. So I have to ask – why would three such conferences be scheduled at the same time? I know there is no commissioner or czar of legal education, let alone a single leader of each of the various components of the reform movement. I also know that with the limited travel budgets many professors have, attending more than one conference in a year might be out of reach. But I wonder if there isn’t some way to better coordinate scheduling of such conferences for those who would want to attend more than one of them. I don’t know who put their marker down first, and I don’t know if any of the players knew of what the others were planning. But perhaps more coordination, and more deference to others, might have been in order.
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by Steve Friedland, Elon University
Sometimes I wonder why we call mobile, on-line education “distance learning.” I understand that on-line education occurs at a distance, but even in regular bricks-and-mortar classes, learning frequently occurs at a distance as well. Students may participate and take notes in class, but often the great bulk of their learning occurs elsewhere. Students often need additional time to untangle the points and structures discussed in the course. In fact, a class session might not offer the time or space needed to process what has occurred. This means students will dissect or “unpack” the rules or policies and their application after class, when they are resolving problems, reviewing their notes, or simply recalling what happened. When I was a student, most of my light bulbs went off when I was studying in depth in the library late at night or right before a final exam, when I was trying to reconstruct the mosaic of the entire course.
Several inferences can be drawn from these premises:
1. Creating time to repack a class. It would be useful to give students time to play with ideas and organize them after a class, perhaps in informal sessions with the professor. Some of the best sessions I had with students this past semester were over coffee in the school’s lounge after difficult property classes. I could see that just by discussing what happened in the class made for better and deeper understanding of the concepts. It really brought to mind the old saying, say 1000 times, hear 100 times, understood 10 times. I don’t rely just on my own experience or this venerable bromide. The brain science studies suggests that every time we revisit a subject we tend to reorganize it – something I found true with teaching a course multiple times – and it would be interesting to give students time after a class in a relaxed setting to discuss with the teacher what has occurred for the purpose of developing course structures
2. Engage students at a distance. Instead of just asking students to read cases or statutes, it might be preferable to flip the classroom and give them tasks that require precisely stated deliverables, such as arguing for or against parties or a position. In this way, we could continue threads in class started at a distance beforehand.
3. Directed Review. Since learning experts have found that ‘spaced repetition’ is a very useful way to promote recall, it might be helpful to direct students on how to review material. Students can be asked to create very short PowerPoint mini-reviews of one of the class topics and present that review in class at the end of the semester. In this way, the professor can observe what students are learning, students can learn by creating a review, and other students can benefit from the mini-reviews by opening up the on-line site where the presentations have been posted.
These are just some of the ways we could start to transform learning at a distance, as well as not view it as a lesser form of education. In fact, it may just be the wave of the future.
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Geoffrey Hazard, chief architect of the Model Rules of Professional Responsibility, cautioned that the Model Rules should be understood as “a code of legal standards, not ethics.” Geoffrey C. Hazard, Jr., Rule of Ethics: The Drafting Task, 36 The Record 71 (1981). The Preamble to the Model Rules also makes clear that the Rules do not provide everything a lawyer needs to resolve ethical dilemmas. The lawyer must also rely on not only “personal conscience” but also “sensitive professional and moral judgment.” Indeed, the Preamble acknowledges that all difficult ethical decisions arise from a conflict between the lawyers duties to the client, to the legal system, and to “the lawyer’s own interest in remaining an upright person.” Anyone who thinks that the Model Rules by themselves should serve as a lawyer’s sole guidance for making ethical decisions is, therefore, mistaken. The Model Rules set a minimum threshold for conduct that will avoid discipline. For the many areas left to the lawyer’s discretion, the Rules give little direction.
The two influential 2007 publications—Best Practices for Legal Education and the Carnegie Report’s report–noted that focusing exclusively on the Model Rules misleads law students. The Carnegie Report put it this way: “When legal ethics courses focus exclusively on teaching students what a lawyer can and cannot get away with, they can inadvertently convey a sense that knowing this is all there is to ethics.” Both Carnegie and Best Practices challenged law schools to help students cultivate a professional identity—an internal sense of values and principles they will integrate into their professional life. Doesn’t that sound like the “personal conscience” to which the Model Rules’ Preamble refers?
If we accept the recommendations of the 2007 reports and want to help students cultivate an ethical code and to develop a method for resolving ethical dilemmas, the challenge to legal educators is in finding teaching methods that do so. I coauthored an article—http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2414015—that explored teaching practices for developing both professional identity and ethical decision-making. Many of the proposed methods come from my and my coauthor’s classroom experience. The article also offers approaches used by other legal educators and even by teachers in other disciplines (e.g. medicine). To date the most effective method I have found is the series of reflection papers described at pages 398-406 of the above article. The approach involves a series of assignments in my Civil Pretrial Practice and Procedure course. The course materials provide “gray area” situations in which a particular course of action gives an advantage to the client, at the expense of undermining the legal system or compromising the lawyer’s integrity. The course syllabus requires students to prepare reflection papers in which they: (1) describe the conflicting interests and values; (2) discuss all Model Rules at issue, as well as at least one other pertinent source addressing the ethical issue; (3) talk to a mentor, identify the mentor, and recount the conversation with the mentor about the issue; (4) in light of steps 1 through 3, describe who will be affected by the different potential courses of action and how the person or entity will be affected; and (5) form an opinion as to the issue in light of all of the considerations.
Why bother with all of this effort, some ask, if evaluating the client’s interests, curbed only by the Model Rules, allows for quicker decisions? The full answer to that question is for another blog post. For now, consider this: growing evidence shows that lawyers who make these decisions without reflection become increasingly disillusioned over time. Those who wrestle with ethical decisions are more likely to respect themselves and be respected by their peers. Is personal integrity worth the struggle? I leave that question for the students. But I’m satisfied that we are developing teaching methods that will give students a framework for the process. Although they will need to practice making these decisions to develop the judgment we admire in the best lawyers, the presence of a framework will advance their maturation as ethical lawyers.
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In “Incentivizing and Assessing Committee Work Contributions, Why Now?” Professors Andi Curcio & Mary Lynch suggest that changes in legal education models necessitate re-thinking law school committee work responsibilities and rewards. Their article is a worthwhile read for anyone who believes the current system of committee workload allocations needs to change. Below is their abstract.
Faculty scholarly productivity reaps tangible internal and external rewards while the “reward” for excellent faculty committee work performance often is additional committee work. Some faculty members perform substantial committee work while others spend little time on institutional service, leaving them more time for scholarship. Despite equity issues, this system maintains the faculty self-governance model integral to academic freedom, and the necessary service work gets done. This article suggests that this traditional workload distribution model may be unsustainable. Innovations in legal education brought about by financial pressures, declining enrollments, and new accreditation standard requirements will result in increased committee workloads while reductions in full-time faculty at many schools leave fewer faculty members available to do that work. Those currently doing the lion’s share of the work may be unable, or unwilling, to take on more committee work. This article examines methods for avoiding an institutional governance crisis.
Grounding the discussion in social science literature, it explores ways to more fully engage all faculty members in committee work by creating accountability structures via smaller committees, peer evaluation of committee work contributions, and rewards for extraordinary service work. It posits that peer evaluations of committee work set normative standards and provide tangible evaluative tools, potentially changing cultural expectations about committee work participation. The article discusses the benefits and potential pitfalls of faculty committee work peer evaluations, provides a sample evaluation rubric, and sets forth a roadmap for implementing a committee work peer evaluation program. It also examines ways to encourage committee work stalwarts to continue their extraordinary service via a reward system. Amongst the rewards discussed is a year’s release from committee work responsibilities to allow for more time for scholarly pursuits. Throughout, the article suggests ways to engage more faculty in the work necessary to maintain thriving self-governing educational institutions in today’s changing legal environment.
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This post alerts readers to a proposed change in the bar pass accreditation standard and questions that change raises. It also asks whether the proposed accreditation standard change opens the door to a bigger discussion about the need for a licensing exam that better reflects the competencies needed to practice law.
A proposed change to ABA Standard 316, the bar accreditation pass rate standard, is out for notice and comment. The proposed change simplifies the standard to a single criteria: “At least 75% of a school’s students who sit for a bar exam must pass an exam within two years of graduation.”
The proposed standard eliminates the current provision that accounts for the significant variations in states’ overall bar pass rates. Currently, schools are in compliance with Standard 316 if “in three of the last five years, a school’s first time bar passage rate is no more than 15 points below the average first-time bar passage rates for graduates of ABA approved law schools taking the bar exam in those same jurisdictions.”
A recent Society of American Law Teachers comment letter provides an in-depth exploration of numerous unanswered questions the proposed accreditation standard change raises. Those questions include: 1. its impact on schools in states with historically low bar pass rates; 2. its impact on schools in states which recently have adopted the UBE that are in the process of adjusting their curriculum to conform to the UBE; and 3. its potential impact on access to legal education if the proposed change causes schools to rely even more heavily on LSAT scores in their admissions process. These questions suggest a need for more information before adopting this proposed Standard.
Others who want to comment on the proposed change have until July 29 to do so.
Schools clearly have an obligation to ensure their students are able to obtain a law license and accreditation standards must ensure schools meet that obligation. That said, this proposed standard change should open the door to discussions about the bar exam itself.
Why do we have an exam that requires memorization of thousands of legal rules, many of which may be inapplicable in an examinee’s own jurisdiction? Does an examinee’s ability to read, issue spot, analyze and answer two hundred multiple choice questions in 360 minutes [allowing less than two minutes per question] really demonstrate that person’s minimum competence to practice law? Is an exam that tests a wide range of doctrinal areas but only a few lawyering skills, and that tests lawyering skills in ways largely unrelated to law practice, the best way to protect the public from incompetent lawyers?
As the SALT comment notes, many states “have attempted to address the disconnect between the bar exam and law practice with alternative licensing requirements designed to ensure newly licensed lawyers possess a broader range of competencies than those tested by bar exams.” To better protect the public from incompetent newly licensed lawyers, some states have added pro bono work or experiential learning and practice requirements. These additional requirements may help remedy bar exam inadequacies but they also create additional hurdles for future lawyers, present regulatory and administrative challenges for state licensing agencies, and create a wide range of issues for schools with a national student body.
At the same time there is a push for national uniformity in law licensing via the Uniform Bar Exam [UBE], we see an array of state licensing requirements. If we had a bar exam that actually measured minimum competence to practice law, would states need to develop individualized supplementary licensing mechanisms?
The NCBE has engaged in a concerted campaign to push states to adopt the UBE. What would happen if the tables turned and states pressured the NCBE to develop a test that better measured competence to practice law? What would happen if some entrepreneur developed a superior law licensing exam and threatened the NCBE’s virtual monopoly over the law licensing process? Would we then have a test that more accurately reflected and assessed the skills lawyers need?
If there is a demand, a product appears. That certainly is what we saw in the rapid changes to legal education models brought on by public demand.
As colleagues and I wrote about in a recent article, many legal educators and scholars have developed a range of assessments that measure a much wider range of lawyering skills than is currently tested on bar exams. Why isn’t the NCBE working with those people to develop a better bar exam?
While legal educators adapt what and how we teach to help prepare students for the existing bar exam, we also should be questioning the validity of that exam. Discussions about the proposed amendments to Standard 316 provide an opportunity to push for much needed changes to the bar exam.
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So, robot-lawyers now work in law firms? What’s next robot-judges?
Thanks to my colleague Professor Christine Sgarlata Chung for forwarding me this Fortune article.
Global law firm Baker & Hostetler, one of the nation’s largest, recently announced that it has hired a robot lawyer created by ROSS Intelligence, Futurism reports. Ross will be employed in the law firm’s bankruptcy practice which currently employs close to 50 lawyers.
And according to ROSS’s producers, more law firms are signing up. Fortune has a running poll on whether automation means a decline in jobs with 64% saying yes as of a few moments ago when I voted. The article notes,
Some argue that this isn’t an issue because job availability has historically increased as technology advances, but artificial intelligence is a fairly new territory that many worry can put an end to that trend.
As described in the brief article, the robot’s capabilities don’t sound much more impressive than the latest update of Westlaw or LEXIS-NEXIS in answering legal research questions. However, it must be more impressive if law firms are going to pay for the robot, right? And although my question about robot-judges was facetious, perhaps that day is not far off?
I would love to know what our readers think.
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From our colleague Margaret Barry, “Please join us next month for a thoughtful discussion about how to identify and effectively assess experiential learning outcomes within your courses and across the curriculum!”
For information about hotels, click here.
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By now, most law professors know the phrase “experiential learning.” But the responses to integrating experiential learning in a given course still run the gamut. In this post, I want to share with you a few examples of how you can invite experiential learning partners into the classroom to both help the professor create an engaging experience and simultaneously expand the impact of experiential learning beyond that professor’s course.
One method is to invite upper-level students to participate in the simulation. This can be either via students the professor knows (a research assistant, someone the professor coached for moot court or trial team, etc.) or it could be a partnership with a full upper-level class. For example, the professor doing a simulated mediation exercise in a 1L course could invite students from an upper-level Mediation course to offer feedback. Or invite members of the moot court team to serve as judges in a simulated appellate oral argument in Torts or Legal Research and Writing.
Potential partners are not limited to upper-level students—some professors use multiple sections of the same course. Professor Jones might have her Civil Procedure students collectively draft and serve a discovery request (or a motion, or a complaint, etc.) on Professor Anderson’s Civil Procedure course, which could then collectively craft a response. Students in separate Contracts courses could do the same thing with drafts of a contract. The idea is easily adaptable to a variety of course topics beyond the 1L year.
Some professors take it a step further and draw alumni or community volunteers into the classroom to serve as potential jurors in a voir dire that Criminal Law students select from, or partner with local drama schools to recruit fictional plaintiffs for simulated attorney-client meetings. If the mock trial or other event is detailed and engaging enough, you could even invite local K-12 students to come observe the simulated proceeding as a safe introduction to the justice system (and a nice way to offer something to the community at minimal cost to the school).
Experiential learning has value to students and professors, as many now have shown, but through these and other methods, it also has value to other individuals that partner with the performance. So try it out if you haven’t already! Your students will thank you.
You can read more about ways to add experiential learning to your course in this list of ideas and resources: goo.gl/59KlUP
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by Robert Kuehn, Washington University School of Law
The late Senator Daniel Patrick Moynihan once observed, “Everyone is entitled to his own opinion, but not his own facts.” When it comes to expanding clinical legal education, the knee-jerk opinion is that it is too expensive for legal education to follow the lead of other professional schools and ensure that every student graduates with a clinical experience through a law clinic or externship. Even the richest law schools couldn’t resist playing the cost card to scare the ABA out of requiring additional professional skills training: “Requiring all law schools to provide 15 experiential credit hours to each student will impose large costs on law schools, costs that would have to be passed on to students. . . . Even a law school with significant financial resources could not afford such an undertaking.” 1
Yet, the facts show otherwise — every school, from the well-heeled to the impecunious, can provide a clinical experience to each student without increasing tuition. Indeed, an array of schools already require 15 credits of experiential coursework (simulations, law clinics & externships) and a clinical experience (a law clinic or externship) for all their J.D. students without noticeable impacts on tuition. At the City University of New York, students must take a twelve- to sixteen-credit law clinic or externship prior to graduation, and at only $15,000 in resident tuition ($24,000 non-resident). Students at the University of the District of Columbia similarly must enroll in a seven-credit law clinic in their second year and a second seven-credit clinic in their third year, paying $11,500 in resident tuition ($22,500 non-resident). Starting with the 2013 entering class, Washington and Lee University requires twenty academic credits in simulated or real-practice experiences that include at least one law clinic or externship. The professor overseeing the program explained that a review of the first few years of the new curriculum showed it is “slightly less expensive than our former, traditional third-year curriculum. And . . . than our current first and second years.”2 Most recently, Pepperdine announced that beginning with next year’s class, students must graduate with at least 15 credits of experiential course work, yet the school increased tuition for 2015 by less than its average increase for the prior three years.
These examples are consistent with studies showing that every school can afford to require a clinical experience for every J.D. student. Continue reading
Filed under: Best Practices and Clinics, Catalysts For Change | Tagged: clinical legal education, experiential education, experiential learning, legal education, reforming legal education | 1 Comment »
As a second-year law student, I am always asking individuals “What attributes do you think make a new associate successful?” Many of the individuals I have asked answered with “Well it depends…” and listed generic things, such as hard work, responsibility, and motivation. I appreciated the answers, which provide some insight, but I would have loved more in-depth (specific?) advice. Within the next year, I will be applying for, and hopefully obtaining, a job and would love to know what employers and co-workers think are the attributes of their best new employees. Recently, some esteemed members of the legal educational community launched a study about the best law mentors and supervisors in the country. If you would like more information on this study, please go to, http://www.bestlawmentors.com. Now, these same legal professionals are taking a look at the best new lawyers. The individuals who are conducting this study reached out to the Best Practices community, to enlist our assistance in finding the best new lawyers. The individuals conducting the study are specifically looking for new lawyers who have been in practice seven years or less. The goal is to find the most successful new lawyers in the country, study those new lawyers in depth, understand why they are so effective, and, in so doing, synthesize and state a set of behaviors, attitudes, and habits of mind for the benefit and inspiration of new lawyers. To nominate someone for the study, please go to, http://newlawyers.weebly.com/nominate-a-lawyer.html. The results from this study will be published in a book and if you would like to visit that this site, please go to, http://newlawyers.weebly.com/.
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How can a law school teach students to work in teams? To work collaboratively? To nurture their creativity and give them a chance to work on a cause larger than themselves? In a recent forthcoming article in the New York Law School Law Review, I recount my experience as a student in a law school clinic in the early 1990s where my classmates and I, together with our faculty supervisors and community partners, worked on litigation to close the refugee camp for HIV+ Haitians maintained on the U.S. naval base on Guantánamo Bay, Cuba. In the piece, I explore these questions and more.
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Best Practices for Legal Education 