A Dean’s Perspective on the Costs and Benefits of Assessment

Posted on November 14, 2015 by glesnerb

More from the Building an Assessment Plan from the Ground Up Conference:

Dean Susan Duncan, Dean and Professor of Law at the University of Louisville Louis D. Brandeis School of Law, presented from the dean’s perspective on assessment. She began her remarks by reinforcing the notion that all faculty have to be involved. She noted her concern that the conference is largely attended by legal writing professors and the disproportionate number of women at the conference and urged attendees to be sure that this does not become a service obligation that is “farmed out” to female faculty and legal writing faculty. She also noted the few number of deans in the audience, reiterating the message that deans must be fully supportive of assessment for it to be successful.

Dean Duncan noted that the new accreditation requirements (referring to both assessment and the experiential course requirement) will have an impact on resources, including:
• Devoting of new faculty positions to teach the experiential learning courses
• Paying stipends for field-work supervisors
• Training faculty for increased skills teaching or for better assessment
• Increasing teaching assistants (research assistants are a usual part of the law school environment, but she suggested that teaching assistants may become a more important part)
• Bringing in outside advisors or consultants
• Reducing teaching and service loads to assist faculty in transitioning to the new environment of assessment and skills instruction
In addition, the positive resource result may be that Deans can use the results from assessment plans in fundraising.
She suggested that one of the many benefits of assessment may be the increased formation of professional learning communities in law schools, in which faculty with shared interests will work together to share assessment practices and data.

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Advise on Building an Assessment Plan from Dean Maryann Jones

Posted on November 14, 2015 by glesnerb

More good stuff from the Building an Assessment Plan conference today: Maryann Jones, Dean Emerita, Western State College of Law, and Educational Consultant, spoke of the “paradigm shift” that legal education faces from a focus on teaching and faculty to a focus on student learning and accomplishments. Dean Jones related her experience in having to make that shift early on because her law school was an independent free-standing law school accredited by the regional accreditor and so was not “given a pass” on assessment as are many law schools that are part of larger university systems. She noted, however, that increasingly regional accreditors are paying attention to law schools, with more than one accreditation report noting that “The law school lags substantially behind the rest of the institution in terms of assessment of student learning.”

She provided a list of very helpful hints in building an assessment plan:

  • The plan has to be an integral part of the whole institution, not housed in an “assessment office” and not only in the curriculum, but must also include student services and co-curricular programs.
  • There must be an institutional commitment of resources
  • The faculty must own assessment. The plan must be built from the ground up, from the beginning, led by the faculty. You cannot simply hand the faculty a plan and tell them to “implement it” She emphasized the importance of one-on-one and small group conversations to develop that plan.
  • One size does not fit all. An assessment plan cannot be “plug and play” but must address its own mission and within its own resources and culture. On the other hand, you don’t have to reinvent the wheel. There are many good models that can provide a starting point.
  • Be creative. Work with what you have.
  • Do not make too many learning outcomes. Keep it manageable.
  • Get training. Regional accreditation programs often provide good training. There are great books available.
  • When you start the dialogue on assessment, bring in a facilitator who is familiar with assessment in the law school context.
  • Do not underestimate student involvement. Talk about student learning outcomes in classes. Widely disseminate your program learning outcomes.
  • Include institutional research – assessment is data driven, so you have to determine how you are going to gather that data from the beginning.
  • Close the loop on assessment. How will you use your results. Is it on the agenda of faculty meetings? Do you have quality improvement or action plan at the end of an assessment cycle? Do you regularly conduct program review (comprehensive review periodically)?

Thank you Maryann!

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Resources from the Building an Assessment Plan Conference

Posted on November 14, 2015 by glesnerb

In the morning session of the conference on Building an Assessment Plan from the Ground Up, presenters shared an overview of assessment in action.

Professor Andrea Curcio, Professor of Law and Co-director Externship Program at Georgia State University College of Law, presented on “The Purposes of Assessment” by providing two powerful examples of how assessment challenges faculty to change and improve their teaching. The first of these targeted a learning outcome of developing cultural sensitivity. She described challenging survey results from her law school regarding student ability to perceive their own cultural lens and the teaching challenges those results presented. The second was the learning outcome of analytical reasoning and her efforts in her civil procedure class to improve student skill through formative feedback. For both of these, Andrea has published articles that provide resources and analysis of these assessments.

Professor Vicki VanZandt of the University of Dayton School of Law and Professor Kelley Mauerman of Whittier Law School presented a primer on “Assessment 101” including much of the language of assessment, providing examples from their own schools off their curricular planning process.  They emphasized the importance of starting small and building an assessment plan from activities faculty already engage in. They reminded the audience that not every outcome needs to be assessed every year, providing examples of their law school’s own curriculum maps and assessment plans. Read the learning outcomes and performance criteria from Dayton here: https://www.udayton.edu/law/_resources/documents/academics/learning-outcomes-and-performance-criteria.pdf and from Whittier here:

https://www.law.whittier.edu/index/experience/mission-and-goals/institutional-goals/

Professor VanZandt is the co-author of Student Learning Outcomes and Law School Assessment: A Practical Guide to Measuring Institutional Effectiveness (Carolina Academic Press 2015) available for purchase here: http://www.cap-press.com/books/isbn/9781611632668/Student-Learning-Outcomes-and-Law-School-Assessment

More resources will be available, including slideshows and handouts from the conference.  Keep watching!

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Building an Assessment Plan Conference off to a great start!

Posted on November 14, 2015 by glesnerb

The conference on “Building an Assessment Plan from the Ground Up” is being held today at Whittier Law School. Professor Andrea Funk, Associate Dean for Lawyering Skills and Institutional Assessment
Professor of Lawyering Skills at Whittier, has created a comprehensive program for the sold-out crowd of faculty, most of whom have some responsibility for assessment planning at their law schools. For your use and enjoyment, I will be blogging from the conference today. Professor Judith Wegner,  Burton Craige Professor of Law at the University of North Carolina School of Law, began asking us to all think about words that begin with “A” and reflect on how many of those are disagreeable: aspirin, ache, anger, accreditation, assessment! She provided a powerful overview of three of these “A-words” that many faculty find very foreign: pressures for accountability in accreditation processes that require assessment of student learning outcomes. You can read more about the history and context of accreditation here:  .  Download her slideshow here (scroll to “Assessment”).

 

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Teaching Legal Reasoning More Efficiently?

Posted on October 28, 2015 by dmaranville

Teaching the traditional analytical skills more efficiently and effectively could provide a much needed opening for broadening the range of skills taught to all law students. In the legal academy’s version of the “socratic method”, law teachers historically taught the analytical skills” implicitly”. They demonstrated legal reasoning by pushing students away from their raw intuitions of fairness and justice to articulate rules and exceptions, while attending carefully to the inevitable ambiguities of language.

Some law teachers suggest that the process of learning to “think like a lawyer” fundamentally requires time and practice and therefore cannot be significantly speeded up.

Yet the implicit approach has been repeatedly challenged by scholars seeking to teach legal reasoning more explicitly, by naming and explaining how it works.*  (An obsession with the goal of teaching legal reasoning more efficiently was a major thread in two phases of my own legal career when I taught first year civil procedure. I struggled both to teach skills more explicitly and to provide students with opportunities to practice them.)

A recent contribution to this quest by my colleague Jane Winn grows out of her experiment teaching common law legal reasoning to undergraduates. Students were randomly assigned to use either a well-regarded study aid, or Winn’s own materials. The materials were also leavened by her own and colleagues’ experiences teaching foreign LL.M. and J.D. students coming from legal systems growing out of the European continental legal tradition.

Winn’s effort, aimed at law students, is notable in three respects. First, at twenty-nine pages it fills an intermediate-length niche: longer than a typical class “handout’, but shorter than the various book length alternatives. Second, it covers case briefing, outlining and exam questions, demonstrating how the three are related. Third, it grew out of an attempt to test her teaching method empirically using random assignment to a control group. Both law students and legal educators should find it a useful contribution.

The 2015 ABA accreditation standards may provide a laboratory in which to test efforts such as Winn’s. Standard 302 now requires law schools to adopt learning outcomes that, under subsection (b), must include legal analysis and reading; Standard 314 requires law schools to provide students with both formative assessment (feedback) and summative assessments (final “grades”); under Standard 315 law schools must engage in “ongoing evaluation of the program of education, learning outcomes, and assessment methods”. At its best this combination of more intentionally articulated outcomes, feedback to students, and program evaluation could prompt law schools to evaluate the potential for greater efficiency and effectiveness in teaching legal reasoning. I remain hopeful that enough schools will approach this task rigorously and in good faith that at least some progress can be made.

*Winn’s illustrious predecessors include:

  • Leading Legal Realist Karl Llewelyn, whose The Bramble Bush: Classic Lectures on Law and Law School have been assigned to generations of law students;
  • University of Chicago Professor and President and U.S. Attorney General Edward H. Levi, author of An Introduction to Legal Reasoning, originally published in the University of Chicago Law Review and then in book form;
  • Critical Theorist and Harvard Professor Duncan Kennedy, who took the decidedly un-Harvard step of visiting at New England School of Law in his attempt to reach beyond elite students and sharpen his skill at teaching students about the “gaps, conflicts and ambiguities” that underlie the development of the common law. He shared his insights widely with former students moving into teaching careers. produced a short volume
  • My former colleagues Pierre Schlag and David Skover, who produced a short volume early in their careers that catalogued the Tactics of Legal Reasoning (1985).
  • Richard Michael Fischl and Jeremy Paul, Getting to Maybe: How to Excel on Law School Exams (1999)
  • Leading clinical teachers Albert J. Moore and David Binder, Demystifying The First Year of Law School: A Guide to the 1L Experience (2009)

In recent decades much of the heavy lifting in legal reasoning has devolved upon teachers of legal analysis, research and writing. Among the results is a burgeoning literature proposing variations on the syllogistic Issue-Rule-Analysis (or Application)-Conclusion approach to analyzing and writing about legal problems, as well as a variety of textbooks.

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Filed under: Best Practices, Best Practices & Curriculum, Best Practices & Setting Goals, Best Practices for Institutional Effectiveness, First Year Law School Innovations | Tagged: , , , , | 2 Comments »

Legal Education & Civility in the Legal Profession

Posted on October 25, 2015 by dmaranville

A recurrent theme in current critiques of legal education is the need to develop lawyers with interpersonal, intrapersonal, and leadership knowledge, skills and values, as well as the traditional analytical skills and doctrinal knowledge. (A significant portion of Chapter 6, Teaching the Newly Essential Knowledge, Skills, and Values in a Changing World in the recent volume Building on Best Practices: Transforming Education in a Changing World (Lexis 2015) is devoted to the what and how of teaching such topics.)

Opportunities to reflect on this theme abounded in early October, when I had the privilege of attending the Civility Promise Continuing Legal Education seminar in Sovana, a small hill town in southern Tuscany, Italy. Sponsored by Seattle University Law School. and Robert’s Fund, the seminar brought together fifteen attorney participants from diverse practice backgrounds. They included a retired corporate attorney and managing partner of what is now a leading global law firm, a retired trial court judge, and lawyers with criminal or civil litigation, or transactional practices in both private and government settings.

Conceived by Paula Lustbader, teacher extraordinaire and emeritus professor of law at Seattle U. in collaboration with Italian artist Sergio Tamassia, the seminar was co-taught by two exceptionally skilled presenters: Tim Jaasko-Fisher, Senior Director of Curriculum and Programming for Robert’s Fund, formerly Assistant Attorney General and then Director of the University of Washington Law School Court Improvement Training Academy, and Craig Sims, Chief of the Criminal Division of the Seattle City Attorney’s Office.

The seminar identifies three pillars of civility: consciousness, community, and creativity. After fostering each pillar within the group in a brilliantly executed mix of didactic, reflective, and creativity-facilitating teaching methods, participants are challenged to take their learning into the profession.

Each participant was drawn to the seminar for their own personal reasons and several shared compelling experiences — the opposing counsel whose business model was the shake down, the ultimately unsuccessful malpractice suit based on the theory that an attorney approaching a case with a collaborative mindset violated her duty to her client, the former colleague who cracked under pressure and – the ultimate case of incivility — murdered his opposing counsel. And all bemoaned the all-too-common misconception that the adversary system is about behaving uncivilly, rather than developing and presenting the most compelling arguments on the merits.

Concerns over incivility have led some jurisdictions to adopt mandatory civility codes and help inspire the burgeoning mindfulness movement. Like the profession, many law schools are pursuing mindfulness for multiple reasons, including encouraging civility. Whether these efforts will be sufficient to effect widespread change in individual attorney behavior and the culture of the legal profession remains to be seen. But the Civility Promise seminar provided both incentive and tools for change. We can also hope that it will inspire similar efforts in legal education.

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Providing Pro Bono Opportunities and Field Placements at Private Firms

Posted on October 14, 2015 by Margaret Moore Jackson

Law schools working to provide students with substantial pro bono opportunities may look beyond traditional public interest firms, legal services providers, or governmental agencies. The idea of allowing students to assist in representing pro bono clients at private firms is appealing. What a great way to encourage and expand the pro bono efforts of the local bar, while helping students develop professionalism and an understanding of a lawyer’s responsibility to the community! Typically, the bench and bar love the idea. Such programs could provide much-needed legal services to persons of limited means, while reinforcing and modeling the importance of pro bono legal service.

But among the challenges to creating these programs at for-profit firms is the need to clearly distinguish such arrangements from an employment relationship. Similar issues arise when law schools explore the possibility of field placement programs at for-profit firms. Cautious directors of field placement and pro bono programs have been watching these issues develop, as the U.S. Department of Labor and the ABA have traded correspondence in an effort to provide clarity.

Recent federal court decisions have cast doubt on whether the DOL’s interpretation of the issue will be followed. In Schumann v. Collier Anesthesia, the Eleventh Circuit sided with a prior ruling by the Second Circuit, putting aside some of the concerns of the DOL.  As reported in the National Law Journal:

On September 11, 2015, the Eleventh Circuit became the first appellate court to address the standard for lawful unpaid internships since the Second Circuit’s ruling in Glatt et al. v. Fox Searchlight Pictures, Inc. et al. The new decision adopts the Glatt test and reasoning wholesale, and provides helpful guidance on applying the Glatt factors. The case also strengthens the trend away from relying on the DOL’s Fact Sheet 71, which purports to provide restrictive guidance on unpaid internships. ….

Echoing the Second Circuit in Glatt, the Eleventh Circuit disagreed with the SRNAs and rejected the DOL’s six-factor test. As a threshold matter, the court noted that because the six-factor test is not a regulation it is only due deference “proportional to its power to persuade.” The court “[did] not find it persuasive.”

Does this change anything? Now what?

We want to provide opportunities for students to participate in well-structured field placement programs and for them to engage in introductory pro bono work. Private firms are perhaps not the best place for this, but many law schools need to see whether somehow it can be made to work – serving the educational needs of the students while improving the provision of pro bono legal services.

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The 25 Most Important Lawyering Skills?

Posted on October 8, 2015 by Ben Bratman

In discussing bar exam reform in my earlier post, I referenced the results of this job analysis survey of newly licensed attorneys. The attorneys, all in practice for three years or less, were asked to rate the significance to their jobs of various skills or abilities (e.g., legal reasoning, organizational skills, written communication) and various knowledge domains (e.g., Rules of Evidence, Contract Law, Rules of Civil Procedure). Ever since I first saw the results, I have been taken with one particular statistic: The respondents rated 25 different skills or abilities as more significant to their jobs than the highest rated knowledge domain.

After the results came out, I looked more closely at these 25 skills and organized them into five broader skill categories. (My chart, which includes all 25 skills and each one’s average rating on a scale of 1 to 4, is below.) I then led a discussion on the importance of all of this to legal education at a legal writing conference last spring. Some of the colleagues in attendance offered insightful and practical comments that I’d like to share here.

One suggested that the 25 skills are a good starting point for formulating a new course to satisfy the ABA’s expanded practical skills requirement in the new Standard 303(a)(3). Others suggested that my chart, or something akin to it, could be a means for identifying and measuring learning outcomes for “other professional skills needed for competent and ethical participation as a member of the legal profession” under Standard 302(d), or additional learning outcomes under Interpretation 302-2.

I hope that many in legal education will find this chart, my colleagues’ ideas, and the overall survey results to be valuable tools. And, if anyone has feedback on how to revise the chart to make it a more useful tool, please get in touch.

Communication Analysis Research Project Management Professionalism
Written communication 3.77 Critical reading & comprehension 3.55 Computer skills 3.28 Paying attention to details 3.67 Professionalism 3.58
Listening 3.60 Synthesizing facts & law 3.55 Electronic researching 3.26 Using office technologies 3.56 Judgment 3.29
Oral communication 3.58 Legal reasoning 3.54 Fact gathering & evaluation 3.22 Knowing when to go back & ask ?s 3.46 Diligence 3.26
Interpersonal skills 3.44 Issue spotting 3.43 Organizational skills
3.46
Answering questions succinctly 3.30 Information integrating 3.10 Working within established time constraints 3.44  
Advocacy 3.24 Decisiveness 3.31
Consciousness of limitations 3.15
Planning & strategizing 3.13

 

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Bar Exam Musings, Part II: Skillfully Changing the Bar Exam Narrative

Posted on October 8, 2015 by Ben Bratman

There really needs to be a paradigm shift in the way the National Conference of Bar Examiners and state bar examiners approach potential reform of the exam. It should not be so novel an idea to increase the range of skills tested on the bar exam (or at least enhance the testing of existing skills) instead of increasing the number of subjects tested on the bar exam. Adding Federal Civil Procedure as the seventh subject on the MBE, as the NCBE just did this year, is not helping. An expanded MBE exacerbates the already heavy imbalance in favor of testing for content knowledge over testing for professional skills

Granted, some skills do not lend themselves to being tested on a standardized exam, but some very well could. Has the NCBE done a careful study of the skills coverage of the Multistate Performance Test akin to its review of the subject coverage of the MBE that led to the adding of Civil Procedure? I have seen little evidence that it has.

Consider a few skill sets as examples. The vast majority of newly licensed lawyers responding to a recent job analysis survey indicated that their job requires them to investigate facts and gather facts. A similarly large majority indicated that their job requires them to develop strategy for client matters. The MPT is supposed to test these skill sets, but has it? My review of the last 10 years’ worth of MPT questions suggests that it has not but has rather focused consistently on basic legal and factual analysis to be written in the form of a memo, brief, or client letter. (Not that there’s anything wrong with that; it’s just that there is something wrong with having only that.) Moreover, among the documents that MPT examinees are told that they could be asked to produce are a discovery plan or a witness examination plan, but I have never seen either assigned.

Surely, if the MBE deserved review to determine if it needed another subject, the MPT deserves review to determine how it can expand to test more skills and more often.

In the same vein, there is the question of whether and how to test legal research, which has gotten some attention and has been studied by the NCBE. Even legal writing, though a fundamental part of completing an answer to an MPT or essay question, is not really tested on its own merits.

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AALS Balance Section Topic Call: New Lawyer Well-being Research: An Imperative to Redefine “Success” for our Students? Presented by Prof. Larry Krieger

Posted on October 6, 2015 by Jessica Persaud

Dear Colleagues,

The AALS Balance Section invites you to participate in a topic call about lawyer well-being and satisfaction, with Prof. Larry Krieger presenting his findings and data from 6200 lawyers in 4 states.  As you will see, the findings may have important implications for who is genuinely “successful” in law school, and consequently for how and what we teach as well.  Here are the details.  Please forward this invitation to your colleagues.

What:

AALS Balance Section Topic Call: New Lawyer Well-being Research: An Imperative to Redefine “Success” for our Students?  Presented by Prof. Larry Krieger

When:  

October 9, 2015, 9:30 to 10:30 a.m. PST

Call-in #:

(712) 432-1500, access code 1062814#

Readings:

Please see the topic discussion below and attached PowerPoint slides that may be viewed here:

Krieger Topic Call-AALS Balance

HappyLwr stdtBrief3 15 (Professor Krieger uses the linked slides here in presentations for students and lawyers, and is fine with others downloading them for similar use.)

Format:

Presentation by our speaker Larry Krieger, followed by discussion

Topic:            

New Well-being Research: An Imperative to Redefine “Success” for our Students?

Hello all.  I’m delighted to be part of the topic call programs sponsored by our Section on Balance in Legal Education.   The call will be based on findings from my study with Dr. Ken Sheldon, now published (83 Geo. Wash. L.R.) and also viewable in final form at:  http://ssrn.com/abstract=2398989  .  The paper documents our data from 6200 lawyers in four states, and sheds light on the apparent contributions of many kinds of factors to the well-being and satisfaction of those lawyers.

Perhaps the most important pattern and overall finding is that the objective factors typically associated with “success” for a law student or lawyer in our society show weak (even nil in some cases) relationships with lawyer happiness. At the same time, these factors (including, for example, grades/class rank, law review membership, affluence/income, law school debt, USNWR law school ranking, and making partner in a law firm) are all competitive and therefore anxiety-inducing.  Indeed, most of the stress and depression/discouragement among law students and lawyers is typically attributed to such factors.

Complementing these findings, the data also highlight several non-competitive, personal and subjective factors (including authenticity/integrity, altruistic and community values, close relationships, and passion for one’s chosen work) to be the actual, quite powerful determinants of lawyer happiness and satisfaction.

These and related findings should, I believe, lead us to question the very definition of “success” and “quality of life” shared by our and other modern cultures. Since the dominant paradigm of “success” determines the life priorities, focus, and primary effort of most people, if that paradigm does not bring happiness do we decide that it is flawed or dysfunctional?  If so, how might educators (especially legal educators for this discussion) effectively impart this information and thereby shift the priorities of their students?

I hope you can take at least a quick look at the study report before the call, but if not please do join us regardless.  And while all thoughts are welcome, I hope we can focus on two fundamental questions:

**What do you consider the most important or meaningful finding(s)?

**Do you see a way to use one or more of the findings in your work with students or lawyers, whether teaching, counseling, advising, or mentoring?  (You may already be working in this area, or may have ideas for how you might in view of these findings now.)

I will provide a brief summary of the findings, and look forward to hearing as many thoughts and voices as possible given our time.

Best and thanks to all, Larry

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Musings on the Bar Exam and Legal Education’s Attitude toward it

Posted on October 5, 2015 by Ben Bratman

I have been studying and writing about the bar exam of late, so I appreciate the guest blogging opportunity, graciously offered by Mary Lynch, which I shall use to share some bar exam musings. Later this week, I hope to follow up with a bit more.

I noted with interest a recent New York Times feature, Is the Bar Too Low to Get into Law School? The feature offered perspectives from five legal professionals, four of whom are law professors, on how best to respond to declining bar exam passage rates. (Scores on the MBE, the anchor of the bar exam in almost every state, have declined again this year.) Two took issue with the bar exam itself, arguing for fundamental changes or its complete abolition. But Linda Sheryl Greene of the University of Wisconsin Law School argued that law schools simply need to do the work of preparing their students for the exam.

Law schools (or at least those not in the very top tier) indeed need to help their students prepare for the bar exam, but the bar exam also has to change in a way that allows law schools to do their part without the deleterious distraction of the exam’s heavy focus on recall of memorized law. Regrettably, bar exam reform efforts over the last 20 years have not focused on the one part of the exam that actually and exclusively tests lawyer competencies, requiring zero memorization of legal rules. That sadly neglected part of the exam is the performance test, which assigns a specific written lawyering task to be completed using a closed universe of factual materials and legal authorities. About one-fifth of the states do not even administer a performance test. Among states that do, the performance test remains the smallest part of the exam, accorded the least weight in scoring. It is in a very real sense the ugly step-child of the bar exam.

The behemoth of the bar exam, the MBE, compels examinees to study and memorize a copious number of legal rules. To be fair, the MBE does not test only for knowledge of law. But every skill set evaluated by the MBE—reading comprehension and legal analysis among them—is evaluated also by the performance test. The MBE’s primary value to the overall exam is psychometric—i.e., when scores on other parts of the exam are scaled to the MBE, the overall exam achieves testing reliability. A reasonable level of testing reliability can be achieved if the MBE is weighted at 40% of the overall score. (See page 13 of this article by the National Conference of Bar Examiners’ former Director of Research.) However, the NCBE recommends 50%, a recommendation that most states follow.

What of the rest of the exam? In every state, the remaining part of the score comes mostly from answers to essay questions, which, like the MBE, require memorization and recall of legal rules. If the MBE is testing knowledge of law (and creating more than enough focus on rote memorization), what reason other than inertia is there for essay questions to retain such a significant place on bar exams? Or to remain on bar exams at all? For years, essay questions were the venue for testing knowledge of state-specific law. However, most states now use the NCBE’s Multistate Essay Examination. And, as a growing number of states adopt the Uniform Bar Examination, several are employing other means outside of the bar exam, such as a required seminar, to ensure that new lawyers are familiar with unique attributes of local law.

And that takes me back to the performance test, the most valid of the testing instruments on the bar exam. The performance test was the answer from bar examiners 20 years ago to the recommendations of the MacCrate Report, which called on law schools and bar examiners to increase their attention to lawyering skills. Since then, while the MBE and essay examinations have been expanded, the performance test has remained stagnant. That needs to change. Through careful attention to the various skills today’s beginning lawyers have to perform, examiners should be able to reinvigorate the performance test and expand its skills coverage. They should also be able to increase the inadequate weight given to the performance test in scoring.

As for legal education’s attitude and approach toward the bar, I think an exam that focuses more heavily on skills through performance testing is one that would put law schools in a better position to help their students prepare. Because performance tests do not evaluate substantive knowledge of law, bar preparation specialists in law schools can easily administer performance tests from previous bar exams to students as both formative and evaluative assessments. Legal Writing professors have been using performance test-style problems for many years, especially with first-year students. Clinical professors use them, and, yes, even some doctrinal professors have too.  (I compiled a list of articles discussing the use of performance test-based problems by law professors in footnote 269 of my recent article.)

Filed under: Bar Exam | Tagged: | 1 Comment »

The ‘Best of’ Classroom Technology

Posted on October 5, 2015 by eroep

Campus Tech best logo

Courtesy of  Instructional Technology at Albany Law School

Recently, Campus Technology polled hundreds of education professionals to ask them which products they think are truly the best.     To see what they thought click here.

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“Stressing Out in Law School is a Matter of Choice” By: Lawrence Krieger

Posted on October 2, 2015 by Jessica Persaud

You can decide whether to merely survive the experience or thrive by refusing to “compare and despair.”

Lawrence Krieger, The National Law Journal

September 28, 2015

Welcome to law school. You just started, and the legendary stress of law school may well be giving you a lot to worry about already. There’s the work, the competition, the other really smart students, the loans to pay off, the job fears. How do you survive and keep yourself together for the next few years?

If you are among the many who feel this way, I’m here to tell you that whether this anxiety dominates your life or recedes into the background is a matter of your choice. In short, you have a daily decision, beginning now: You can stress and worry about how to survive law school, or you can plan to thrive in law school. There is no predestined “law school stress” experience, despite what you may be constantly hearing. Your classmates are going to have contrasting experiences. What will yours be like?

Twenty-three years of teaching tells me that many of you will have a challenging but generally enjoyable time in law school, while many others will be dominated by angst, pressure and stress during the same years. The simple but usually hidden truths are, first, the quality of your experience will be the result of your beliefs, and, second, with accurate information you can change your beliefs and thus absolutely change your experience. What will yours be like?

I am not suggesting a New Age or wishful-thinking approach but a scientific reality that is borne out by published studies of law students and lawyers in the United States. Let’s take a look at a few of the critical attitudes and beliefs that will provide you either a thriving or surviving experience.

As a foundation, we can agree that law school will be demanding and you will need to work hard. There is a lot to learn, including a relatively new way of using your analytical abilities to “think like a lawyer.” (A quick side note though: the mystique around that style of thinking is often overdone, and you will learn the skill quickly in your regular classes.)

The natural challenges of law school bring up your first key decision point. The “surviving” attitude that is so common is based on what psychologists call extrinsic motivations and values. They include typically competitive things outside yourself, such as income, grades and comparison with other people and a pessimistic expectation.

Survival thinking goes like this: “Oh my God, law school is so hard, everybody is so smart, my profs are so knowledgeable. How will I measure up? My loans will be so much, how can I get those few jobs that will cover my needs?” This attitude will naturally drive you to constant worry, late nights and studying most of the weekend, and pervasive self-doubt about your ability to compete for grades and ultimately get a job.

This approach to law school is common, and it is exhausting, but where is all this stress coming from? It is your belief system, not the work. You have bought into the messages that you have to do better than the other students, have to look smart and in control all the time, won’t get a job if you aren’t in the top of the class — and the result of failure will be a nightmarish life. With this belief system, survival anxiety becomes a nearly constant reality that clouds your enjoyment and undercuts your performance, despite the fact that the schoolwork itself is doable and that learning could be inherently enjoyable.

The “thriving” attitude is quite contrary, and you all will encounter students who naturally adopt it. It focuses more on intrinsic motivations — including self-improvement and growth, and relating to, helping and being in community with others — and optimistic expectations.

It goes like this: “I have been successful in my life so far and am a smart person who gained acceptance to this law school. Whatever the future holds, I will be fine. There is no reason to assume life is turning bad on me. I am here to learn as much as I can that will translate into practicing law later; I will apply myself to learning without paying much attention to my grades and class rank, and will try to find my greatest interests for legal work. I will start early with practical steps to support a job search. There is a lot more to me than my grades, no matter what they are. I can do internships and clinics, volunteer, engage in extracurriculars that play to my personal strengths, network with our alums and other lawyers, and build my resume intelligently for the kind of jobs I most want. Then I’ll get busy early seeking a job, and trust the process to take its course.”

There are some crucial differences for your stress level built into these intrinsic and the extrinsic approaches. It will be difficult in one sense to take the intrinsic and optimistic approach, because you need the resolve to go against the common fears and negative storylines about law school. But it will be much harder on you to take the extrinsic approach because of the inherent differences in the two sets of choices and motivations.

First, the extrinsic, comparative/competitive approach is inherently anxiety-producing. It focuses on zero-sum outcomes so there is a “loser” for every “winner,” and you are always either better or worse off than someone else. It also means you always feel insecure and that you lack control in your life, because these external results depend on what other people do as much or more than on what you do.

Conversely, the intrinsic approach keeps you focused on what you do and what you can do, which generates a sense of control and optimism. After all, we humans universally face uncertainty about next year and even tomorrow.

Start openly accepting that reality now and deal with it constructively by focusing most of your attention on what you can do today to advance intrinsic goals that are in your control (i.e., learning, self-improvement, relating well and helping others). That is your best foundation for law school and for life. As you increasingly focus on building now toward worthy goals, you waste less of your time and emotional resources on worrying about the future.

The research also shows that, with these attitudes, you will actually learn more and test and grade better — a true win-win result from choosing wisely where to put your attention in law school.

NOTE:  Drawn from the booklet “Hidden Sources of Law School Street” available from Lawrence Krieger (lkrieger@law.fsu.edu), professor at Florida State University College of Law.

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Active Learning Levels the Playing Field

Posted on September 16, 2015 by andicurcio

Studies find that active learning methodologies benefit all students, but the greatest benefits may be to women, minorities, low-income and first generation students. See : http://nyti.ms/1i6FRW5   As the NY Times reports, one study found “the active-learning approach worked disproportionately well for black students — halving the black-white achievement gap evident in the lecture course — and for first-generation college students, closing the gap between them and students from families with a history of college attendance.” The studies cited in this NY Times article provide support for increasing active learning in legal education, both to improve all students’ learning and to level the playing field.

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Unmasking Assumptions about Employment Outcomes and Legal Education

Posted on September 14, 2015 by Mary A. Lynch

In an upcoming Wisconsin Law Review article, Robert Kuehn, Associate Dean for Clinical Education and Professor of Law at the Washington University Law School, presents a cogent, well-supported and thoughtful article describing the limitations of and lessons we can learn from the existing empirical analysis correlating student enrollment in clinical education and employment outcomes.  Kuehn’s article, entitled Measuring Legal Education’s Employment Outcomes is particularly powerful because it provides a thorough empirical rejection of the claim that clinical coursework might actually harm employment outcomes, as asserted by Professor Jason Yackee and which attracted some sound-bite attention earlier this year. In what is, perhaps,  an unexpected twist, Kuehn demonstrates that using Yackee’s statistical assumptions and methodology also would produce negative correlations for those students who participate on law journals or in moot court competitions.  Kuehn argues that one can’t draw any reliable conclusion from Yackee’s 2013 model, and perhaps not from any nationwide statistical model – as opposed to a particularized analysis of one school –  on the likely effect of clinical courses (or other activities like law journal or moot court) on employment, and surely not the negative effect Yackee posits. Kuehn points out that as to clinical coursework, the available evidence (through surveys) indicates that such experiences do aid some students in securing employment.

If you, like me, still become a bit nervous about how much you actually remember from undergraduate statistics courses, do not be alarmed by this post!  You will find Kuehn’s article accessible and a quick good read, even when he is using words like “regression analysis,” “granular data” and “variable choices.”   Here are the points made in Measuring Legal Education’s Employment Outcomes which I found most helpful:

  1. Kuehn’s reminder that when one confuses correlationwith causation one is bound to come up with a “misdiagnosis.” One problem with Yackee’s analysis is the lack of granular data to calculate the true employment rate for those who took a clinic (or who did not).  In fact, the data is so poor that “the results never account for more than half of the variability in employment across schools.”
  2. Kuehn’s explanation of the “confounding effect of prestige” and bar passage on employment outcomes.
  3. The problems of validity and reliability raised by analyses which employ information from ABA questionnaires, particularly those self-reports submitted prior to 2014.
  4. The fact that “13% of law schools” provide 80% of the school-funded jobs to law graduates. Not surprisingly, Kuehn found this factor biases many results if you examine nationwide statistics. And when Kuehn removes those jobs from the statistical analysis, Yackee’s correlation with clinical education falls apart even using his own assumptions and methodology.
  5. Yackee’s model yields completely different results if one uses the US News Lawyers/judges data versus academic peer data to control for the possible influence of perceived prestige.
  6. Application of Yackee’s model to “Law Journals” and “Skills Competition” and S. Newssub-groups also show no relationship to employment outcomes!
  7. In Yackee’s model, a better ranking is “strongly associated with improved employment outcomes.” However, Kuehn points out that a “closer examination of the relationship between rank and employment indicates that this positive association, although statistically significant when applied across the entire range of top 100 schools, does not hold true for schools ranked 51 through 100 (emphasis added).” 
  8. Kuehn’s documentation of employers who require, “strongly prefer” or identify law clinic experience as a positive factor in hiring such as The U.S. Department of Homeland, legal services and  legal aid offices, district attorney, public defender, fellowships and private law firms.
  9. Kuehn’s description of National Association of Law Placement (NALP) existing information: such as the  2011 survey of lawyers with non-profit and government offices;  the NALP survey of lawyers in firms of predominantly more than 100 attorneys; the NALP survey of public interest legal employers;  and the NALP 2013 presentation on the employment market reporting that ” law firms say they want new graduates to have ‘more experiential learning, client-based and simulation.”
  10. Kuehn provision of good information on other employer information such as the Lexis-Nexis WHITE PAPER: HIRING PARTNERS REVEAL NEW ATTORNEY READINESS FOR REAL WORLD PRACTICE, Professor Neil Hamilton’s employer survey to determine the relative importance of twenty-one different competencies in employer hiring decisions, and Professor Susan Wawrose’s legal employer focus groups which found employers prefer new hires with ” well developed professional or ‘soft skills” along with “strong fundamental practice skills.”

Professor Kuehn concludes by recommending that studies could best be done on a school-by-school basis by “surveying likely employers to find out what educational experiences of students are most valued.”  Professor Kuehn also recommends that schools could also “retrospectively look at various employment outcomes for graduates and any relationship” to students’ experiences while in school.

I agree with Professor Kuehn and am happy to report that  Albany Law School,  through its faculty Assessment committee and Admissions office,  is currently engaged in conducting employer focus groups and analyzing what best helps our students obtain employment in their desired career paths.  Until good data and information suggests otherwise, Professor Neil  Hamilton’s advice to law students,which Professor Kuehn quotes in his “must read” article, bears repeating:

In this challenging market for employment, a law student can differentiate herself from other graduates by demonstrating to legal employers that the student both understands the core competencies that legal employers and clients want and is implementing a plan to develop these competencies, including an ability to demonstrate that the student has experience with these competencies.

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