Best Kept Secret Exposed! Georgia State Law’s Racial Justice Resources

Posted on February 16, 2021 by Jill Engle

The summer of 2020 found many of us searching for new ways to integrate racial justice into our law courses. My approach was to develop a new course called “Human Rights, Intersectionality, and the Law” for upper level students at Penn State Law. I am teaching the course for the first time this semester. A critical part of my course design came from a resource that is one of the best kept secrets in legal education –but no longer! I am excited to share with you and encourage you to utilize Georgia State Law’s Racial Justice Resources, which include a seemingly endless set of links to articles, videos, and other materials on teaching critical race issues, as well as a how-to guide for teaching race in 1L courses. 

I agonized over how to begin developing my syllabus, but my agony transformed to exuberance when I found this resource. It enabled me to reach my goal of amplifying the voices of women of color and others with intersectional identities. Every sub-topic I had conceived for my course was either covered by one of the linked materials or by a source referenced by one of them. One exciting rabbit hole led to another. For example, Alexi Nunn Freeman and Lindsey Webb’s Positive Disruption: Addressing Race in a Time of Social Change affirmed my approach to using non-legal material to frame issues alongside traditional legal texts and provided a plethora of materials in its citations. This Pew Research Center article on Native American poverty led me to numerous others which resulted in my assigning this piece on uneven vs. sustainable development in Portland, including racial and gender justice. The Georgia State Law Racial Justice site’s Introduction page offers sample language for learning objectives, which I incorporated chapter-and-verse into my syllabus, crediting the brilliant Dean Danielle Conway of my “sister school” Penn State Dickinson Law, who authored the learning objectives.

Perhaps most importantly, this article from the psychology discipline helped me come to terms with teaching these topics as a white woman. It gave me concrete, detailed, evidence-based suggestions about how to intentionally design and deliver a course as an ally rather than a well-intentioned but uninformed academic trying to speak a language not my own. It even gave it a name: Multicultural Imposter Syndrome. This helped me see that openly expressing my solidarity for those who have been subordinated is useful in the classroom, even as I acknowledge that my experience is not the same as theirs. Similarly, the article White Doors, Black Footsteps: Leveraging “White Privilege” to Benefit Students of Color by Leslie Culver confirmed for me the concept that I can advance diversity in the profession by offering a course like this. 

So there it is. The secret is out. Georgia State Law’s Center for Access to Justice, law librarians, and their partners have compiled a true gem. Spread the word!

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Registration is Open for the “Teaching Multicultural Lawyering” Conference!

Posted on February 15, 2021 by Melanie Daily, University of Kansas School of Law

By

By: Kim O’Leary, Professor, WMU-Cooley Law School and Mable Martin-Scott, Professor, WMU-Cooley Law School

Dear Colleagues,

We are pleased to announce registration is open for our online conference Teaching Multicultural Lawyering: Development, Integration and Conversation at WMU-Cooley Law School.  There is no charge to attend.  

Information about registration, schedule and the conference topics and panelists follow.   The focus of the conference is teaching multicultural lawyering in a variety of forms.

The online conference will take place on Thursday, March 11 (from Noon-3:30 p.m. EST) and Friday, March 12, 2021 (11 a.m.-4:30 p.m. EST).

Registration Information

Register at https://www.eventbrite.com/e/teaching-multicultural-lawyering-development-integration-and-conversation-tickets-124694060291. 
Please note that space is limited.  The deadline for registration is February 19, 2021.

Conference Schedule

The conference agenda is designed to accommodate the many demands on your time by focusing on two afternoons with two sessions each day and a keynote panel discussion on Friday.

While we understand there are many competing demands on your time, we encourage you to attend the full event if possible.  This conference will bring together law professors who teach this subject in different ways.  We would like to build on this shared knowledge to explore the possible ways we can teach these important issues to law students.

The conversations will be enriched and most effective if participants attend all presentations and activities that we have planned for these two afternoons.

That said, we know that everyone will not be able to attend all the sessions.  We only ask that when you sign up for a small group session, you are reasonably sure you can attend that small group.  You do not have to enroll in every small group opportunity.

Program Overview

The following is a brief overview of the conference.  Some of the sessions will have break-out groups to facilitate small, in-depth discussions.  We look forward to welcoming the distinguished speakers and panelists!  Listed below are panelists who are confirmed.

Thursday, March 11 (from Noon-3:30 p.m. EST)

Session 1:  Introduction; Multicultural Lawyering: Development and Teaching the Course

Professor O’Leary (co-moderator), Professor Martin-Scott (co-moderator), and WMU-Cooley Law School students

Session 2:  Learning Objectives and Assessment Regarding Multicultural Curricular Offerings
 

Professor O’Leary (moderator); Professor Dan Sheaffer, WMU-Cooley Law School; and, Catherine McCollum, Director, Teaching and Learning Center, WMU-Cooley Law School


Friday, March 12, 2021 (11 a.m.-4:30 p.m. EST)

Distinguished Panel Discussion:  Insights from Those Who Have Led the Way

President and Dean James McGrath (moderator); Dean and Professor Leonard M. Baynes, University of Houston Law Center; Dean and Donald J. Farage Professor Danielle Conway Penn State Dickinson Law, Professor Berta Hernández-Truyol, University of Florida, Levin College of Law; and, Professor Emerita Vernellia Randall, University of Dayton School of Law

Session 3:  Incorporating Multicultural Topics Into Law Courses

Professor Paula Johnson, Syracuse University College of Law; Professor Arlene S. Kanter, Syracuse University College of Law; Professor Suzette Melendez, Syracuse University College of Law; and, Professor Mary Szto, Syracuse University College of Law


Session 4:  Professional Identity and Multicultural Lawyering

Professor Martin-Scott (moderator); Professor Janice Craft, University of Richmond School of Law; and, Professor Lucy Jewel, University of Tennessee College of Law


Please contact us at mcl@cooley.edu with questions and if you would like to be added to our interest list to receive updates and other details as they become available.  Anyone who registers for the conference will receive regular updates.


We hope you can join us!

Kim O’Leary, Professor, WMU-Cooley Law School

Mable Martin-Scott, Professor, WMU-Cooley Law School

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Diversity, Equity, and Inclusion in the Experiential (R)Evolution

Posted on February 11, 2021 by davidafinger

G.S. Hans

In Assessing the Experiential (R)Evolution, Allison Korn and Laila Hlass have written an excellent, incisive article on the after-effects of the ABA’s adoption of a standard mandating that law schools require J.D. students to complete at least six credits of experiential coursework. Korn and Hlass observe how titanic a shift this was; while less than the 15 credit requirement that some advocated for, it still reflected a six-fold increase from the prior regime.

All those experiential credits have to come from somewhere, and that’s where Korn and Hlass take up their project. They sought to learn, through an extensive survey, how schools have responded to the new ABA requirement. One of their central contributions in their article is determining exactly how law schools have complied with the new standards. While some schools had little work to do to ensure compliance — either because they already required at least six credits of experiential education or  because they already offered enough courses to allow students to fulfill the ABA requirement — many others created new classes, modified existing courses, or engaged in broader curricular reforms.

Who teaches these classes, and who ensures they run properly? Korn and Hlass examine these questions as well, discussing how schools have relied upon the now-prevalent academic administrator — often a Head of Experiential Education, referred to by various titles — to manage and facilitate the experiential curriculum. The responsibilities that flow from such power are significant and likely to grow, particularly if the ABA revisits the credit hour requirement or if other states follow New York’s lead in creating experiential requirements for bar applicants.

Drawing upon the scholarship of Jon Dubin and the CLEA Faculty Equity & Inclusion Committee, of which I am co-chair, Korn and Hlass discuss the potential diversity and equity concerns that might result. While the data their article describes is impressive, it does not include race or gender information on experiential directors and deans. Our committee is working to rectify that gap, as a lack of data has stymied research — and thus reforms. There are many reasons to seek better diversity and representation from experiential administrators, but the visibility of the role, both as a symbol of a law school’s experiential program and within the administration of law schools, is particularly compelling.

One concern I have, which Korn and Hlass mention, involves the diversity and representation issues for instructors who lack employment security. With law schools potentially entering a permanent cost-consciousness mentality, determining how to finance the need for experiential courses will merit special attention from deans and experiential administrators. Though Bob Kuehn has shown that the reputation of clinics as high-cost relative to other law school expenditures is overstated, law schools may still choose to use adjuncts, fellows, and other short-term faculty to satisfy their ABA requirements in a less expensive way. 

Korn and Hlass note Meera Deo’s warning, in her influential book Unequal Profession, that law schools might seek to grow their diverse faculty in the least secure positions. Some experiential faculty are on the tenure-track or have tenured positions, whilst others have more precarious appointments. Adjuncts and fellows have the least job security of instructional faculty — but might present appealing, lower-cost options for expanding experiential offerings, through practicums, labs, or clinical seats. For some law schools mindful of financial concerns, hiring an adjunct to teach Negotiation as an experiential course to 24 students might seem more appealing than creating three tenure-track clinical faculty lines to offer 24 seats on the standard 8:1 ratio for clinical courses. Given Deo’s concerns, we should keep an eye on whether less-secure positions are being used to comply with the ABA requirement, and whether those positions are being disproportionately filled by diverse faculty.

Korn and Hlass have given us all much to think about in this comprehensive and innovative article, which ties together many strands of current debate within the experiential community. I particularly appreciated its generative qualities — I myself came away with many questions and ideas for future research. These issues will require scholarly engagement and discussion from many faculty and law schools in order to chart a just and equitable path forward for instructors, students, clients, and law schools.

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Experiential Education and the First-Year Curriculum

Posted on February 10, 2021 by davidafinger

Eduardo R.C. Capulong

One way to describe today’s law school curriculum is in terms of détente—a truce in which law schools have decided that experiential work can happen in the third year so long as the case method reigns supreme in the first.  Students can take clinics or externships later but their first preoccupation would be dissecting appellate opinions for doctrine and reading supplemental materials for context.  Allison Korn’s and Laila Hlass’ survey of experiential courses post-revised ABA Standards 303 and 304 provides us a fresh glimpse of this pedagogical battleground—and, as Tony Amsterdam observed nearly four decades ago—equips reformers with more “political dynamite” to throw at this ossified state of affairs.

Korn and Hlass report that 19 schools expanded and 20% of respondents changed their first-year experiential curricula post-revised Standards.  “Labs” and “practicums” have proliferated, as have deans for experiential education—many former clinic directors now overseeing the entire experiential arc.  These developments, they prescribe, should “ensure not only compliance with the new ABA Standards, but also advancement of a diverse and comprehensive experiential curriculum that bolsters faculty expertise, develops students’ substantive and contextual knowledge and practical skills, and expands access to justice.”  To these ends, they call for ensuring the long-term viability of experiential deans; rigor in the approval, development, and assessment of experiential courses; and diversity of and security of tenure for experiential faculty.  The survey reveals what should be easily correctible oversights, as well, such as including simulation courses in Standard 303(b): since such courses are experiential under its definition, there’s no reason why law schools shouldn’t “provide substantial opportunities” for them just as they must for clinics and field placements/externships.  (Indeed, best practices should call for students taking a clinic and anexternship and a simulation course.)

Above all, Korn and Hlass surface the need for theory—i.e., pedagogical theory, or what my colleague, Julia Hernandez, calls an “antidisciplinary lens.”  The law school is, of course, a key pillar of the American establishment, hence the durability of how things are done.  The reason the formalist cast has endured is that it has served racial capitalism exceptionally well: it abstracts, objectifies, normalizes, and obscures raw, violent power in a set of purportedly neutral rules equally applicable to all.  Reformers have mounted successive challenges against the case method for more than a century.  Yet none has been successful in supplanting it.  That’s the story of social movements fighting hegemony, coinciding with historical forces in ebb and flow.  It’s also the story of reformism: piecemeal changes not quite striking at the heart of their target.  What we need, as Jerry Lopez recently argued, is an “alternative vision.”

Labs and practica in the first year may seem quaint from this perspective.  But like any movement with a visionary goal and immediate realities to confront, they’re promising next steps.  They can form the backbone for the faculty collaboration Korn and Hlass rightfully note as key to an effective experiential curriculum.  They can be tied, for example, to lawyering or legal methods courses that can then form the hub of a reimagined curriculum.  They can be vehicles for developing simulation pedagogy and professional identity, which remain undertheorized.  (I’m not disinterested here: I direct one such program in a school founded on such a model and helped convene a network of Lawyering professors promoting these ideas.)  With the rise of the information economy—including rapid technological changes and the ready availability of legal materials whose use as asynchronous instruction has been hastened by the pandemic—law faculty should be less purveyors than curators of knowledge, less lecturers than coaches or sources of skillful and ethical guidance—i.e., less doctrinal teachers than clinicians. 

I’m hopeful.  The developments Korn and Hlass surveyed coincide with five others that should make us optimistic.  The first is the racial reckoning that many law schools have undertaken in the wake of the Black Lives Matter movement.  The second are the redoubled efforts by critical race scholars to reform the first-year curriculum, including recent work on the white supremacist foundations of legal rhetoric and ongoing work to forge what my colleague Yasmin Sokkar-Harker calls “critical legal information literacy.”  The third is a professional identity movement seeking to systematize instruction.  The fourth are professional competency studies that confirm the soundness of the experiential project—the latest of which, led by Deborah Merritt, was published two months ago.  And the fifth are potential changes to the bar exam recently recommended by the NCBE and summarized in these pages, which call for the “assessment of lawyering skills to better reflect real-world practice and the types of activities newly licensed lawyers perform” and the expansion of those “foundational skills … to include more than just legal analysis and writing [but also] legal research, factual investigation and evaluation (including fact gathering), client counseling and advising, client relationship and management, and negotiation and dispute resolution.”  Taken together, these parallel movements form at least part of our curricular terrain.  Détente or no, they are the leading edges of change and I’m thankful for Korn and Hlass for their important contribution.

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Lessons from Critical Race Theory for the Experiential (R)evolution

Posted on February 8, 2021 by davidafinger

Robin Walker Sterling

In Assessing the Experiential (R)evolution, new experiential learning directors Allison Korn and Laila Hass conclude that law schools should “define the boundaries of experiential dean and director roles,” and provide faculty members in those roles appropriate administrative and other support; “implement sustainable practices to expand and support experiential faculty, with a focus on including and valuing underrepresented clinicians of color,” and “develop practices to ensure rigor in the process for approving and assessing experiential coursese while appropriately allocating resources to courses and programs.” The authors based their comprehensive recommendations on survey responses from 126 law schools received in the fall and winter of 2018.

Since then, our country has faced both an unprecedented health crisis and protests stemming from long-simmering social unrest. We have been caught in the pincer grip of two widespread pandemics, one old and one new. The novel coronavirus has upended our lives, exploiting fault lines of marginalization to disproportionately affect the communities that many law school experiential programs serve. To date, even as the new presidential administration rushes to deliver doses of the vaccine to vulnerable populations, there are 26.9 million cases of covid-19 in the United States, and more than 460,000 people have died. Communities of color have disproportionately borne the brunt of the virus’s effects. According to the Washington Post, even after controlling for age, sex, and mortality rates over time, Black Americans were 37 percent more likely to die of the virus than whites; Asian Americans were 53 percent more likely; Native Americans and Alaskan Natives were 26 percent more likely; and Hispanics were 16 percent more likely to die than whites.

At the same time, the decades-old systemic racism embedded in policing reached a tipping point, leading to uprisings, protests, and calls for change around the world. On the heels of the shooting of Ahmaud Arbery, unarmed and jogging in Georgia, and of Breonna Taylor, unarmed and asleep in her own home in Kentucky, the suffocation death of George Floyd on a city street in Minneapolis led to the longest and largest period of protests for civil rights in the United States since the 1960s. On one day during the months of protests, June 6, over half a million people protested in nearly 550 places across the United States. The protests have led to significant changes. The Minneapolis City Council promised to dismantle its police department. New York legislators repealed a law that kept police disciplinary records confidential. Jurisdictions across the county banned chokeholds. Colorado disallowed qualified immunity for police in certain situations. Perhaps as importantly, the pendulum has shifted in the public’s acceptance of the Black Lives Matter movement, with support increasing in the weeks after George Floyd’s murder as much as it had in the last two years. In his inaugural address, President Biden listed “a cry for racial justice some 400 years in the making,” along with the coronavirus, the economy, the threat of white supremacy, and climate change as the defining challenges of our time.

As the clinical legal education community undertakes the critical assessment that the authors urge, it might do well for us to strategize around achieving these gains using tenets of critical race theory. Some of the foundational tenets of criminal race theory include: questioning the idea of “meritocracy” and the assumption that standards of “merit” can be neutral under current social conditions; emphasizing taking action to make real change in the world; and understanding that power works hegemonically. All of these are consonant with some of the cornerstone principles of clinical legal education. In particular, Derrick Bell’s theory on interest convergence might be instructive. Professor Bell developed his ground-breaking theory in the context of civil rights, when he argued that the Brown v. Board of Education (1954) decision, which prohibited de jure segregation of public schools, came about because such a ruling benefitted white people. Professor Bell argued that the Brown decision: soothed the anger and potential of political protests Black veterans, who had served their country in World War II only to return home to continued discrimination; advanced American Cold War objectives by making the United States seem more reasonable than Russia to third world countries; and facilitated desegregation, which was now seen as economically advantageous to the South. As Professor Bell (1980) put it, “the interests of Blacks in achieving racial equality will be accommodated only when it converges with the interests of Whites.”

This principle, broadened and restated as the premise that the interests of a more marginalized group will gain traction only when they coincide with the interests of the dominant group, might be applied to the situation of clinical legal education relative to traditional legal academia. If we applied this principle, then goals like educating members of traditional legal academia about the important contributions of clinical legal education, or appealing to traditional legal academia’s sense of unfairness become less important. Instead, our strategy becomes one of figuring out how to recast the academic and administrative gains we are seeking as aligned with the interests of non-clinical legal academia. That is a much larger topic than can be accommodated in this short blog post. But, in the same way that the zeitgeist of the protests of the 1960s Civil Rights Movement created an atmosphere ready for change, these recent protests have done the same. This article, with its comprehensive questions and recommendations, helps clinical legal academia make the most of this moment.

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Why Bar Examiners Should Eliminate Essay Questions and Focus on Performance Tests

Posted on February 1, 2021 by andicurcio

The NCBE has announced that in four to five years, there will be a different bar exam.  In the interim, why not make changes to the existing exam so that it better reflects the skills needed in law practice?  One easily implementable change: eliminate the essay questions and use the time allotted to those questions for the performance test questions.

This idea was raised by  Professor Deborah Merritt in her talk at the BYU Annual Law and Leadership conference. The idea stems from her groundbreaking study on the skills new lawyers actually need to competently represent clients.  Professor Merritt and researchers at IAALS analyzed data from 50 focus groups conducted in twelve states with a diverse group of new lawyers and their supervisors across a range of practice areas. 

The study data confirmed what we intuitively knew: that the bar exam MPT performance test most resembles what new lawyers do in practice. 

On the other hand, bar exam essay questions require examinees to memorize significant amounts of information beyond what they must already memorize for the multiple choice questions [MBE].  Many of the subjects memorized for the current essay questions will be eliminated from the NCBE’s proposed new exam.

The essay questions also do not allow examinees to research or review the applicable legal rules before answering, and they have little relationship to how new lawyers approach problems in practice.  On the other hand, the performance test questions do relate to the skills new lawyers use.

As Sara Berman notes in her book, Bar Exam MPT Preparation & Experiential Learning for Law Students mastering how to take the performance tests is an opportunity to practice skills necessary for law practice.  This book offers a logical and easy to follow process for studying for, and taking, the performance tests. 

Given the existing bar exam format, Berman appropriately devotes a significant portion of the book to strategies that help examinees understand how to write an effective answer in the time allotted.  Her excellent advice and strategies are particularly useful given the tight time frame examinees have to answer these questions and she provides a lot of sample questions for practicing skills, including reading all the materials and drafting a document in ninety minutes. 

Berman’s strategies for managing the MPT time constraints make sense because, as Professor William Henderson’s study confirmed, test taking speed on tests such as the bar exam is an independent variable when it comes to assessing test performance.  Thus, it is important to teach students to quickly answer test questions.  However, is that the message we should be sending?  Should we be encouraging speed over careful reading and ensuring accuracy?  

If the NCBE eliminated the essay questions and allotted that time to the MPTS, or even if it simply gave states the option to adopt this change, it could study its impact.  Currently, we don’t know whether three hours versus ninety minutes to answer an MPT question makes a difference, and if so, for whom. Does the difference affect those who come close to, but do not achieve, the arbitrarily set passing cut scores?   These questions are particularly important given the significant impact cut scores play on the profession’s racial and ethnic diversity. 

This minor change, which could have a major impact, is just one of the many innovative ideas presented by Professor Merritt at the BYU conference on law licensing reform.  Her remarks, as well as the remarks of other conference speakers, are available if you scroll to the bottom of this website.

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Examining Our Experiential Experiments

Posted on January 27, 2021 by davidafinger

By Phyllis Goldfarb

In their new article, Assessing the Experiential (R)evolution, 65 Villanova Law Review 713 (2020), Allison Korn and Laila Hlass describe the ways in which experiential education is experimental education.   Faced with the 2014 ABA regulation mandating that all students earn at least six credits toward graduation in experiential courses, clinical education has been responding experimentally to the need to do more experientially, offering more courses in more forms to more students. At the same time, many law schools have been doing more with less, as the need for experiential growth has been accompanied by the diminished availability of resources.  

We can add to the complexities of this picture our burgeoning crises in global health, democratic governance, lethal racism, economic inequality, planetary survival, and other dangerous and pressing social problems that are implicated in the kind of work that clinical education undertakes.  Involving students in urgent and weighty matters of law and justice has long animated the clinical movement.  Have the ABA’s regulatory moves facilitated or impeded these aims in any way?  How is clinical education faring at this challenging moment? 

Korn & Hlass seek to address questions like these empirically, reporting in their article the findings of a 2018 survey they conducted to gather information about how experiential programs have changed in response to the ABA’s six-credit mandate.  The authors find that our experiential experiments have yielded an array of curricular innovations, especially though not exclusively in upper-level courses.  Their article also confirms the trend in most law schools to name a dean or director of experiential education, presumably to help design and oversee the experiential curriculum and to manage expanding experiential programs.  

The latter finding builds on those analyzed in Barry, Dinerstein, Goldfarb, Maisel, and Morton, Exploring the Meaning of Experiential Deaning, 67 Journal of Legal Education 660 (2018). In this article, my co-authors and I observed that despite a rapid increase in the creation of experiential administrator positions, and the assignment of various tasks to their holders, law schools had not fully conceptualized the nature of the position.  Consequently, the meaning of experiential deaning was in the process of invention and negotiation in each dean’s school.  In other words, these roles were experiments. 

Experiments, of course, are designed to be evaluated.  Applying a clinical method of learning, Korn & Hlass urge that we develop processes for evaluating recent experiments in experiential education, so that we can extract the lessons inherent in our experiences with administering, teaching, and reforming it.  Which changes are working well and worth retaining?  Which should be revisited?  Are institutional goals guiding these decisions?  To the extent that experiential administrators are steering these changes, how have institutional goals informed their work?   Are law schools further developing and defining these administrative positions?  Are these positions evolving in a sustainable way?  What conditions best support their sustainability?

The authors, experiential administrators in their respective institutions, have sought to learn from their own experiences in these administrative positions, to ask pertinent questions, suggest possible answers, and frame an assessment project that would guide them, and all experiential educators, in moving forward as knowledgeably and effectively as we can from where we stand now.  A rigorous assessment project of the sort that they helpfully propose in this article would inform our choices about the future of experiential education.

Having seen over many years how experiential learning can enliven, deepen, and transform legal education, I strongly value the expressive quality of the ABA’s regulatory directives to provide that kind of educational engagement to all law students.  I can envision rich curricular possibilities that these directives might support.  But my underlying fear has been that general law school administrators, especially those lacking awareness of the insight-cultivating aims of clinical pedagogy, would seek bare bones fulfillment of the mandate, finding the most limited and low cost ways to offer all students six experiential credits and shortchanging the educational opportunity that the mandate might represent.  Has that happened?  Korn & Hlass have begun to elicit the sort of information we need and to frame the kind of assessment process that we can use to better understand what the ABA’s regulatory efforts have wrought.

In gathering and analyzing experiential education’s experimental data, Korn & Hlass have taken an important first step toward a process of conscious assessment and collective deliberation that hold promise of improving our experiential programs and of identifying meaningful, inclusive, and sustainable practices for the next stage of development in experiential education.  The experiential education community would be well-served by joining them in this important and productive endeavor.

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Assessing the Experiential (R)evolution

Posted on January 25, 2021 by davidafinger

by Professors Laila Hlass (Tulane Law) and Allison Korn (UCLA Law)

In the midst of calls for law schools to meaningfully address systemic racism in our institutions and a pivot to virtual and hybrid learning in response to the global COVID-19 pandemic, the time is now to consider new paths forward in experiential education. Furthermore, in the wake of deadly assaults on our democracy, law schools’ should grapple with how to teach  justice and social change formally through curriculum and informally through programming. We hope to spark conversation and action regarding reimagining legal education, specifically contemplating the roles that experiential education and experiential faculty should play in the future of law schools.

For more than a century, law schools did not generally mandate any experiential education, but in 2014, the ABA adopted six-credit mandate, alongside a packet of experiential reforms.  In 2018–2019, as the first classes of law students graduated under the revised ABA Standards, we conducted a national survey of ABA-accredited law schools, asking about changes in experiential education and we received responses from 126 institutions.

Our article Assessing the Experiential (R)evolution, recently published in Villanova Law Review, reports findings from this empirical investigation into the experiential landscape shift since the revised Standards were adopted. From our survey, we learned of a recent proliferation of deans and directors of experiential education. Along with this came continued growth in experiential curricula, including among experiential courses in the first-year curriculum, and experimentation with new pedagogical approaches, such as adopting hybrid experiential courses termed “labs” and “practicums.” These trends of expansion and experimentation raised many questions for us:

  • As law schools increasingly add deans and directors of experiential education, experiential courses, and new tools for course assessment and approval, while experimenting with new course models, are they also working to uplift experiential programming as an essential part of the institution?
  • As law schools hire new experiential faculty and appoint experiential deans and directors, are they being responsive to the clinician diversity imperative, taking steps to identify, recruit, and support clinicians of color?
  • Are law schools not only integrating experiential deans, directors, and faculty into the greater faculty but also ensuring that they have reasonably similar security of position and a voice in law school governance?
  • While investing in integration across law school coursework, have law schools acknowledged that experiential education is core to the law school curriculum?

Our article proposes a series of recommendations aimed at ensuring sustainability for experiential deans and directors, implementing equitable practices for experiential curriculum and faculty development, and assessing curricular changes thoughtfully and deliberately. But this proposal is only a starting point for deeper discussion about how we might approach our experiential programs and renew our collective vision for robust, innovative, justice-centered experiential education. Over the next few weeks, the Best Practices Blog will host reactions to and commentary on these themes from a deep bench of extraordinary colleagues in the experiential community. From building sustainable administrative roles to examining and improving racial diversity among experiential faculty; from increasing experiential offerings for first-year students to highlighting changes within externship and field placement programs – each commentary will help us assess and build on current experiential programs and call on our institutions to better understand and support the increasingly vital role experiential education plays in the legal academy.

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The Next Generation of the Bar Exam, NCBE Style

Posted on January 14, 2021 by Ben Bratman

The Testing Task Force of the National Conference of Bar Examiners (NCBE) recently completed the three phases of its “future-focused study to ensure that the bar examination continues to test the knowledge, skills, and abilities required for competent entry-level legal practice in a changing legal profession.” Earlier this month, as tumultuous events in Washington, D.C. grabbed most of the headlines, the task force quietly released an Overview of Preliminary Recommendations for the Next Generation of the Bar Exam. The recommendations are a big deal—possibly a game changer—and deserve some discussion.

I see three positive aspects of the task force’s preliminary recommendations:

First, quoting the document directly, “Our decisions were guided by the prevailing views expressed by stakeholders . . . : that the bar exam should test fewer subjects and should test less broadly and deeply within the subjects covered, [and] that greater emphasis should be placed on assessment of lawyering skills to better reflect real-world practice and the types of activities newly licensed lawyers perform . . . .” So many critics of the current bar exam, myself included, have argued exactly these positions for so long, but to read them coming from the task force directly affiliated with the NCBE is no small matter.

Indeed, the task force recommends a significant reduction in the number of legal subjects to be tested—just Civil Procedure, Contracts, Evidence, Torts, Business Associations, Constitutional Law, Criminal Law, Criminal Procedure (limited to constitutional protections), and Real Property. These reductions, if they were adopted, would cut from the current Multistate Essay Examination (MEE) subjects, not the Multistate Bar Exam (MBE) ones. Many will understandably quibble with the retention of all seven MBE subjects, and indeed I will do just that below. Still, one can hope that, if the task force’s recommendations are adopted by the NCBE, the bar exam of the future will in fact cover the several MBE subjects “less broadly and deeply” than the extent to which they are currently tested.

One reason to be hopeful that the next generation of the bar exam would in fact test MBE subjects less broadly and less deeply is that the task force is recommending a fundamental shift away from the model of discrete exams like the MBE, MEE, and Multistate Performance Test (MPT). It is instead calling for an integrated exam that would test “knowledge and skills holistically, using both stand-alone questions and item sets, as well as a combination of item formats (e.g., selected-response, short-answer, and extended constructed-response items).” As always, the devil will be in the details, but this preliminary recommendation sounds at least somewhat promising.

Second, the task force rightly recognizes the need to expand the scope of the foundational skills covered on the bar exam to include more than just legal analysis and writing. Among the skills to be encompassed by the projected bar exam of the future are legal research, factual investigation and evaluation (including fact gathering), client counseling and advising, client relationship and management, and negotiation and dispute resolution. It might be hard to imagine how some of these skill sets could be tested, but the task force foresees “uniform text- or video-based scenarios that require candidates to construct a written response or select the correct response.”

Third, the task force recommends that the next generation of the exam should be “a computer-based test, administered either on candidates’ laptops in jurisdiction-managed facilities and/or at computer testing centers managed by a suitable vendor.” The pandemic forced many state bar examiners to abruptly adopt computer-based testing. It makes sense for myriad reasons to move in the direction of computer-based testing and to do so as part of a deliberate and careful process.

Having said all that, there are at least two aspects of the task force’s recommendation that strike me as problematic—or at least present the risk of inadequate or counterproductive reform to the bar exam.

First, as mentioned earlier, there is the question of why the bar exam should continue to test legal knowledge in all seven of the MBE subject areas. Testing knowledge of such a large number of subject areas is especially problematic when considering that, by all appearances, the exam would remain closed-book. As Professor Deborah Merritt has cogently explained here, if the bar exam of the future needs to remain a closed-book exam, then the doctrinal portion of the exam should cover no more than a basic understanding of U.S. legal processes and sources of law or a single substantive subject. In arguing for an open-book exam, Merritt correctly points out that “new lawyers simply don’t work from memory. Instead, they internalize basic principles that allow them to identify issues in a client problem and find the specific rules they need to address that problem.”

Moreover, the empirical data on job activities of newly licensed lawyers, gathered during Phase 2 of the task force’s study, reveals that both experienced and newly licensed lawyers rated knowledge of Torts, Constitutional Law, Criminal Law, Criminal Procedure, and Real Property Law as only moderately important (all receiving an average rating of 2.2 or lower out of 3). They rated knowledge of all those subject areas as less important than knowledge of Statutory Interpretation Principles or Statutes of Limitations (both receiving an average rating of 2.3), neither of which is included as a stand-alone subject to be tested on the task force’s vision of the bar exam. To be sure, Civil Procedure (2.6), Contract Law (2.6), and Rules of Evidence (2.5) all received noticeably higher average ratings. Perhaps one or more of only those subject areas could be tested.

Second, on a more micro level, is the peculiar fate of one specific knowledge area: Statutory Interpretation Principles. In phase 3 of the study, the task force proposed that Statutory Interpretation Principles should not be tested as a stand-alone subject but rather could be subsumed under the Constitutional Law subject area and the skills portion of the exam. The suggestion that statutory interpretation can be subsumed under Constitutional Law is a dubious one. Rarely does a court do a deep textual dive into the precise phrasing of a constitutional provision as courts routinely do when confronted with a question of statutory construction. Moreover, questions on substantive knowledge of constitutional law will routinely call on knowledge of Supreme Court precedents, not on dissection of the text of a constitutional provision.

Statutory interpretation is plainly distinct from constitutional interpretation in critical ways. Hence, I trust that the skills components of the bar exam of the future will include not just cases as sources of law, but also statutory and regulatory provisions (cutting across many different substantive subject areas) which applicants have to dissect and interpret. Based on what I’ve heard from the task force, I am optimistic on this point. I discussed the extent to which statutory sources are used on the performance test, currently the only exclusively skills component of the bar exam, in an earlier post here.

In sum, much is uncertain and will take shape over time. But the early indications give some reason to be cautiously optimistic about the NCBE testing task force’s vision of a new bar exam.

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Law Deans Issue Joint Statement on the 2020 Election and Events at the Capitol

Posted on January 12, 2021 by Melanie Daily, University of Kansas School of Law

Today, a diverse group of law deans issued a statement reaffirming our profession’s integral role in advancing and protecting the rule of law. The full statement is below and linked here with a growing list of the deans who signed.

As we begin our spring semesters amid this upheaval and assault to democracy, I find it helpful to reflect upon how we teach students to absorb the weight and responsibility of membership in this profession. A few years ago, Carolyn Kaas, Paula Schaefer and I presented on the topic of “Lawyer as Public Citizen” and shared a number of ways to incorporate teaching this particular aspect of professional role assumption across the curriculum. We asked, fundamentally, how to teach students to look beyond public service and pro bono work as silos, and to absorb the profound responsibility to uphold the rule of law and to serve in ways that educate and encourage the public to partake in democratic endeavors.

We asked:

The preamble to the ABA Model Rules includes a calling to the lawyer as “public citizen,” but what does that mean? In what ways are all lawyers required to perform in the public citizen role after graduation, and how can we prepare them for it?  How do proficiencies associated with the lawyer’s responsibility as a public citizen become a more explicit outcome of legal training? 

We came up with lists of activities and topics; members of the audience met in small groups to discuss how their teaching did or did not address the role of lawyer as public citizen. But the message was clear: we need to look beyond the particular topics we teach and engage students in accepting deep responsibility for this work regardless of their eventual professional roles in the legal system.

For further reading, Chapter 6 of Building on Best Practices includes a number of essays on the pedagogy of professional role assumption.

Please let us know how you are including talks, exercises, and space for reflection as return to the semester.

Source: https://law.yale.edu/sites/default/files/documents/pdf/law_deans_joint_statement_1.12.21_final.pdf

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How LSSSE Informs Best Practices in Legal Education

Posted on January 11, 2021 by davidafinger

Chad C. Christensen and Meera E. Deo

The Law School Survey of Student Engagement is based on decades of empirical research on effective educational practices showing that the more engaged students are, the better their academic and professional outcomes.[1] Since 2004, LSSSE has conducted an annual survey of law students in partnership with law schools across the country.[2] Survey results provide an opportunity for schools to better understand their student population and for LSSSE staff to document, reflect on, and influence trends in legal education.[3]

The LSSSE survey items were created out of best practices in teaching and learning; as such, they align well with Roy Stuckey’s Best Practices for Legal Education and the Carnegie Foundation’s Educating Lawyers – two publications that serve as foundational works of this blog.

For this post, we focus on best practice concepts described by Stuckey in his book and highlighted in Chapter 4, “Best Practices for Delivering Instruction, Generally”.  These recommendations come from Section C, which urges professors to “Create and Maintain Effective and Healthy Teaching and Learning Environments” by adherence to three principles:

  • Have High Expectations
  • Foster a Supportive Environment
  • Encourage Collaboration

Have High Expectations

Two questions on the LSSSE survey focus on high expectations and academic rigor.  The first asks students how often they worked harder than they thought they could to meet faculty members’ standards or expectations.  In 2019, 59% of law students frequently[4] worked harder than they thought they could to meet faculty standards or expectations, reflecting an increase since 2012 (52%). This positive trend indicates that students are being challenged in more meaningful ways than they were in the past and working hard to meet the high expectations of their professors.  

Another LSSSE question asks students to report the extent to which their exams have challenged them to do their best work.  For this question a score of five or higher on a seven-point Likert-scale indicates significant challenge.[5] In 2019, over 90% of LSSSE respondents indicated they were being challenged by exams in class. 

Taken together, this LSSSE data indicate that teachers are demanding a lot of their students, meeting Stuckey’s first suggestion to have high expectations. Students are also working hard and producing their best work to meet the challenges their professors put before them.

Foster a Supportive Environment

Creating a positive and supportive learning environment is critical to student success.[6]  A key component to this is student-faculty interaction – the ways and frequency with which faculty connect and interact with students in and out of the classroom.  Law students report overwhelmingly positive relationships with faculty.  In 2019, over three-fourths (76%) of students reported strong positive relationships with faculty.[7] Furthermore, 91% believed their instructors care about their learning and success in law school and 82% considered at least one instructor a mentor whom they could approach for advice or guidance.

Thus, faculty are creating supportive environments in class and effectively conveying their support to students.[8]

Encourage Collaboration

Teamwork and collaboration also are critical to student learning and the development of important professional skills for effective lawyering.[9]  It is important for students to engage with both faculty and classmates. Though students report positive relationships with faculty, LSSSE data reveal that law students are not collaborating with faculty as often as they could. A majority of students work with faculty on activities other than coursework, although a full 46% never do so.  Even more troubling, almost a quarter (23%) of law students report never having conversations with faculty outside of class. 

Surprisingly, students work with peers at even lower rates than they collaborate with faculty.  Only a quarter (24%) of law students report frequently[10] working with students on projects during class. One-third (33%) frequently work with classmates outside of class, again showing room for improvement.

When considering best practices in legal education, there is much to learn from Stuckey’s suggestions. And faculty have learned! LSSSE data reveal that students are working hard to meet their professors’ high expectations. Faculty also are succeeding in fostering a supportive classroom environment, as measured by overwhelmingly positive student-faculty interactions. However, professors can do more to promote teamwork and collaboration both inside and outside of class and both with students and amongst students themselves.

[1] More information on LSSSE is available at: https://lssse.indiana.edu/.

[2] To participate in the LSSSE survey, please contact the authors of this post or visit: https://lssse.indiana.edu/register.

[3] For instance, LSSSE Reports have shared trends regarding Diversity & Exclusion, The Cost of Women’s Success, and the ways in which Relationships Matter. For more information on LSSSE Reports, see https://lssse.indiana.edu/annual-results.

[4] This frequency includes respondents choosing “Very often” or “Often”.  

[5] Response options for this question range from 1 (“Very little”) to  7 (“Very much”).

[6] Stuckey, R. T. (2007). Best practices for legal education: A vision and a road map. Clinical Legal Education Association. P.87; Chickering, A. W., & Gamson, Z. F. (1987). Seven principles for good practice in undergraduate education. AAHE bulletin, 3, 7.; Wawrose, Susan, A More Human Place: Using Core Counseling Skills to Transform Faculty-Student Relationships (May 1, 2019). 55 Willamette L. Rev. 133 (2018), Available at SSRN: https://ssrn.com/abstract=3088008 or http://dx.doi.org/10.2139/ssrn.3088008

[7] These strong positive relationships are represented by a score of five or higher on a seven-point Likert scale.

[8] Women of color faculty, who typically carry more of the student services load than their colleagues, should be recognized for this work as it has clear implications for student outcomes and institutional success. Meera E. Deo, Unequal Profession: Race and Gender in Legal Academia (2019).

[9] Hamilton, N. W. (2014). Empirical research on the core competencies needed to practice law: WHAT do clients, new lawyers, and legal employers tell us?. The Bar Examiner, September, 14-34; Hamilton, N. W. (2019). Fostering and Assessing Law Student Teamwork and Team Leadership Skills. Hofstra Law Review, Forthcoming.

[10] This frequency includes respondents choosing “Very often” or “Often”.

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AALS Panel Preview: Teaching Commercial Law in the 21

Posted on January 5, 2021 by davidafinger

Kara Bruce, Professor of Law, University of Toledo College of Law

This year’s AALS Annual Meeting features a number of dynamic panels for the commercial law crowd.  Offerings include an update from the joint Uniform Law Commission and American Law Institute task force on potential UCC amendments to address emerging technologies,[1] a heavy-hitting panel considering “the next post-crisis financial reform,”[2] and a works-in-progress series featuring the work of junior consumer law scholars. The Financial Institutions Section will also host an offsite virtual scholarship workshop on the afternoon of January 6.[3]

I am looking forward to a panel co-sponsored by the Sections on Commercial and Consumer Law, Teaching Methods, and Technology, Law, and Legal Education, titled Teaching Commercial Law in the 21st Century.[4]  Perhaps because commercial law subjects are so difficult for students to access, I have found that my commercial law colleagues are particularly thoughtful teachers, and I invariably pick up good ideas from my discussions with them.

This panel, like many good pedagogical exercises, arose from the consideration of educational outcomes.  Two of our panelists, John McGarvey and Bill Henning, are members of the American Law Institute and Uniform Law Commission’s Permanent Editorial Board, which addresses interpretive problems with the UCC and recommends amendments to the Code.  In that capacity, they have observed several recent appellate court decisions that have flubbed application of core commercial law concepts.  These high-profile cases have led them to question how law schools are preparing graduates in the area of commercial law.  And thus, the panel was born.  Carliss Chatman and I were invited to join what we hope will be an engaging Q&A-style conversation.

Given that no professor can cover the entirety of their chosen field in a survey-style course, our panelists will share what skills and competencies they prioritize in their courses.  We will share techniques for integrating developing technologies, racial justice, and practice skills into the commercial law curriculum.  We will also consider how administrative-level decision-making can support our goal of producing graduates with a baseline competency in commercial law.

Teaching commercial law in the best of times often involves dragging students though a dense thicket of statutory text.  These challenges are magnified during a pandemic, when our students (and perhaps we) may face loss, grief, financial instability, tension, and other hardships.  The panel will conclude by discussing strategies for teaching effectively through the COVID-19 crisis.

We hope that readers of the Best Practices Blog will join us for this panel and contribute to the discussion.  If there are topics you’d like the panelists to address, please reach out to me at kara.bruce@utoledo.edu.

[1] Section on Commercial and Consumer Law, Co-Sponsored by Financial Institutions and Consumer Financial Services: Commercial Law in the 21st Century, Tuesday, January 5, at 11:00 a.m. EST.  See Program for more details. 

[2] Section on Financial Institutions and Consumer Financial Services, Co-Sponsored by Commercial and Consumer Law: The Next Post-Crisis Financial Reform, Tuesday, January 5, at 1:15 p.m. EST.  See Program for more details. 

[3] The panel will take place via zoom from 1-5 p.m. EST on January 6.  Please contact Patricia McCoy for log-in details and additional information.

[4] Section on Commercial and Consumer Law, Co-Sponsored by Teaching Methods and Technology, Law and Legal Education: Teaching Commercial Law in the 21st Century, Tuesday, January 5, at 4:15 p.m. EST.  See Program for more details. 

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The Disparate Treatment of Clinical Law Faculty

Posted on January 4, 2021 by Melanie Daily, University of Kansas School of Law

By: Robert Kuehn, Washington University School of Law

In her recent presidential message, Abolish the Academic Caste System, the president of the American Association of Law Schools (AALS) called on law schools to address the caste system within law faculties by providing parity in security of positon and salary to non-tenure/tenure track faculty, such as the overwhelming majority of law clinic and externship instructors.[i] Data from the just completed Center for the Study of Applied Legal Education (CSALE) 2019-20 Survey of Applied Legal Education of  95% of law schools and 1,300 law clinic and externship instructors show widespread disparate treatment of clinical instructors (i.e., law clinic and externship instructors) and a lack of progress in providing parity between those who teach in law clinics and externships and those teaching doctrinal courses.[ii]

In 1998, 46% of clinical teachers were in tenure or tenure-track positions.[iii] Yet as the chart below indicates, the percentage of clinical faculty in tenure/tenure track positions, even when including lesser status clinical/programmatic tenure positions, has declined to just 29%, and decreased by more than 30% over just the last 12 years (temporary appointment clinical fellows excluded from all tables).


  Source: CSALE 2019-20 Survey of Applied Legal Education

Though there have been notable exceptions at a few schools, law clinic and externship hiring has disproportionately been for contract positions since the 2010 downturn in law school applications and accompanying financial challenges.

This increasing pattern of hiring non-tenure track clinical faculty can be seen below when comparing employment status to years of clinical teaching. Forty-six percent of clinical faculty teaching more than 12 years are in traditional or clinical/programmatic tenure or tenure-track positions. In contrast, only 23% of those hired within the last four-six years and just 16% of those hired in the last three years are in tenure/tenure-track positions. Although some clinical faculty hired into non-tenure-track positions may be permitted to move later into tenure-track positions, those limited instances cannot account for the increasingly lower status among more recently hired clinical instructors.


Source: CSALE 2019-20 Survey of Applied Legal Education

Non-tenure status has consequences for clinical faculty, beyond the limited participation in faculty governance and lower prestige that generally come with appointments other than traditional tenure. The table below compares the salaries the over 70% of law clinic and externship faculty not tenured/tenure track with the salaries reported by doctrinal faculty at the same schools. These clinical faculty are paid, on average, $30,000 per year less than their doctrinal colleagues at similar points in their careers. Even when salaries of clinical faculty with traditional or clinical tenure/tenure track are included in the calculations, clinical faculty on average make over $20,000 less than their doctrinal colleagues.

Sources: CSALE 2019-20 Survey of Applied Legal Education; 2018-19 SALT Salary Survey

The disparate treatment of clinical faculty in tenure appointments is most pronounced at schools ranked higher in the U.S. News annual law school rankings. Among schools with at least half of their clinical faculty in tenure/tenure-track positions, only one school ranked in the top 25 primarily appoints clinical faculty to traditional tenure-track positions, yet over 36% of the 50 lowest ranked schools provide this status to their clinical faculty.

Source: CSALE 2019-20 Survey of Applied Legal Education

Some law school clinical education programs even treat types of clinical instructors differently, providing less security of position and salary to those who teach in externships. CSALE survey data show that externship instructors are less likely to have traditional or clinical tenure/tenure track when compared to their law clinic peers (25% vs. 38%) and are almost 15 times more likely to be primarily in an administrative position with only occasional teaching responsibilities and sometimes little training in externship pedagogy.

Source: CSALE 2019-20 Survey of Applied Legal Education

Salaries of externship instructors also are considerably lower, with median annual salaries, on average, $20,000 less per year than those of law clinic instructors:

Source: CSALE 2019-20 Survey of Applied Legal Education

The latest CSALE survey shows that in spite of occasional stories about a school adopting tenure for its clinical faculty, the AALS president is right ─ the academy remains highly caste-like in its disparate treatment of clinical faculty, especially at higher ranked schools and even within clinical education programs at some schools. Indeed, if anything, progress toward parity appears to be slipping as an increasing percentage of new teaching positions in law clinics and externships are without the security of position and salary of doctrinal faculty.

The AALS has moved lately towards an Executive Committee comprised entirely of deans and former deans. If the members of the Executive Committee support their president’s call to end the caste system, they could act to do so at their own schools and call upon their fellow deans across the country to do the same.

[i] Darby Dickerson, Abolish the Academic Caste System, AALS News (Fall 2020), at https://www.aals.org/about/publications/newsletters/aals-news-fall-2020/presidents-message-abolish-the-academic-caste-system/.

[ii] Center for the Study of Applied Legal Education (CSALE), 2019-20 Survey of Applied Legal Education (2020), at https://www.csale.org/#results.

[iii] Richard K. Neumann Jr., Women in Legal Education: What the Statistics Show, 50 J. Legal Educ. 313, 328 (2000).

[iv] 2018-19 SALT Salary Survey, SALT EQUALIZER (Nov. 2019), at https://www.saltlaw.org/wp-content/uploads/2015/03/SALT-salary-survey-2019-final-draft.pdf.

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Welcome, 2021! – and a Round-Up of Pedagogy Sessions at this week’s AALS Annual Meeting

Posted on January 4, 2021 by Melanie Daily, University of Kansas School of Law

Dear readers, authors, commenters, and friends far and wide:

Happy New Year!

We look forward to another year of exciting and thought-provoking discussion with you through the Best Practices for Legal Education blog. 

We begin 2021 with the AALS annual meeting, being held virtually, that you can access here. 

The conference will include some fantastic programs to help us share skills and techniques in this tumultuous teaching environment. We’ve compiled a round-up of the sessions best suited for those interested in deepening our grasp of pedagogy across a wide range of subject areas. Please feel free to comment below on what you’re learning as the conference progresses!

Tues. Jan. 5

4:15-5:30pm: Section on Civil Rights, Co-Sponsored by Criminal Justice: Teaching About Civil Rights During Incarceration

4:15-5:30pm: Section on Commercial and Consumer Law, Co-Sponsored by Teaching Methods and Technology, Law, and Legal Education: Teaching Commercial Law in the 21st Century

4:15-5:30pm: Section on Professional Responsibility: Bright Ideas and Best Practices for Online Teaching in Professional Responsibility Courses

Weds. Jan. 6

11am-12:15pm: Section on Pro Bono & Public Service Opportunities, Co-Sponsored by Clinical Legal Education, Leadership, and Poverty Law: Calling Out and Leaning In to Racial and Class Inequities in Experiential Learning Opportunities

2:45-4:00pm: Section on Global Engagement, Co-Sponsored by Teaching Methods, Technology and Law and Legal Education: Virtual Mobility: Innovating and Promoting Global Legal Education in Times of Crisis

4:15-5:30pm: Section on Criminal Justice: Beyond 2020: Decarceral, Anti-Racist and Non-Traditional Teaching

Thurs. Jan 7

2:45-4:00pm: AALS Discussion Group: How the Pandemic Made Me a Better Teacher – Lessons Learned and Plans for Change

4:15-5:30pm: Section of Family and Juvenile Law: Family Law – Creative and Experiential Teaching Tips

Fri. Jan. 8

2:45-4:00pm: Section on New Law Professors: Spreading the Word – Law Professors as Teachers, Scholars, and Legal Influencers

4:15-5:30pm: Section on Teaching Methods: Best Practices for Creating and Administering Mid-Term Exams

4:15-5:30pm: Section on Women in Legal Education, Co-sponsored by Clinical Legal Education, Legal Writing Reasoning, and Research and Teaching Methods: Gender, Power, and Pedagogy in the Pandemic

Friday, Jan. 8 2:45-4:00

Sat. Jan. 9

2:45-4pm: Section on Balance in Legal Education, Clinical Legal Education, and Leadership Joint Pedagogy: Teaching Leadership Skills in a Time of Crisis

As you consider your own teaching and writing, please consider posting your original content with us.  You can learn more about the purpose and history of the best practices blog here.

With best wishes for a great 2021,

Melanie and Davida

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Looking At Ourselves–How Can Reduce Barriers to Entry in the Legal Profession?

Posted on December 21, 2020 by davidafinger

Jennifer S. Bard, Visiting Professor of Law, University of Florida Levin College of Law

Over a series of past posts, I have looked at how law school could be adapted so that it does not disadvantage students who come not already knowing how to play the law school game. As we have known for a long time, some groups of students experience more initial success than others in law school–and these differences are magnified by the effect first semester grades can have on lifelong implications in terms of employment opportunities. Most law students catch on quickly after the first semester, but their self-esteem may have already been severely damaged in what Sara Berman has called “a zero-sum environment where initially-lower performers are not encouraged to improve in consistent and meaningful ways”.

But taking a step back from equalizing the experience of students already in law schools, it may be time to think about who isn’t there–and why. What aspects of legal education, such as the cost and program structure, create barriers to entry?  And how do these barriers to entry worsen an ever growing justice gap in the United States where only a small percentage of people who would benefit from legal representation have access to a lawyer?

The primary barriers are the cost of legal education and how it is structured.. The challenge we face is that there are barriers at every stage of the process, from high school graduation  to college entry and beyond.  Homelessness, substance use, mental health can all be factors in making  higher education inaccessible. Also, we know of the barriers students with disabilities face when they get to law school (or college), but we don’t know how many people who chose not to attend might have done so if they could do so from a more accessible location.  And of course, many scholars have pointed out that systemic racism is itself a formidable barrier in gaining admission to law school. 

We can’t as legal educators end the systemic racism and economic inequalities that block many people from even being eligible to attend law school.  Nor can we always reconfigure our aging infrastructure. But we can take responsibility for what we charge students to attend and how we structure the conditions for completion.

The first step to lowering the barriers within our own control is to recognize them. We need to re-evaluate the very structure of legal education–which can be most easily seen by reviewing the standards that both govern and reflect current practice. My intent is not to criticize the existing ABA standards or those who drafted and uphold them nor to suggest that they be rescinded, and legal education deregulated.   But rather to recognize the consequences and costs of these practices so we can better evaluate their value.  Below is a list of some obvious suspects–I’m sure everyone can generate more.

*Restrictions on Distance Education

With few exceptions, approved law schools cannot confer a degree on a student who does not earn two-thirds of their credits in face to face instruction. This continues to put law school out-of-step with nearly every other degree-granting program in the United States and to both the cost and physical demands of attending law school.

*Expensive Eligibility Requirements:

B.A. Required

Next on the list, we need to consider the cost in time and money of requiring that students earn a B.A. before enrolling in law school.  Lawyers in Europe, South America, Africa, Asia, Australia, New Zealand are all practicing laws at the highest possible levels without seven years of post-secondary specialty training.

 *Length of Degree and Time Limit on Completion

Not only must students complete a B.A., but they must also accumulate 87 credits within 84 months of enrollment.  This of course adds cost in the form of tuition, but it also requires an even greater expenditure of time away from family and limit on the ability to earn a living.

Each of these requirements, indeed each of the Standards which govern legal education, were developed with the best intentions, but if the pandemic has taught us anything, it’s that just because we haven’t done something before doesn’t mean we can’t or shouldn’t find a way to do it now.

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