Occupied

Posted on November 11, 2014 by Jill Engle

Last week Jeffrey Toobin joined the growing chorus decrying the state of legal education in his article in the New Yorker entitled “The Legal One Percent”. One might expect this nationally renowned legal expert, CNN commentator and author of numerous books on legal issues, to write a thoughtful and inspiring piece on the changes facing legal education and the legal market in general. Instead, what Toobin gives us is an intellectually lazy finger-wagging at law schools, boldly asserting that our “system of professional education” is “directly contributing to inequality.”
This inequality, according to Toobin, is related solely to income. He notes that lawyers working “at the top of the pyramid” at white shoe firms like, for example, Cravath, Swaine, and Moore (his example, not mine) are earning “profits per partner in the multimillions.”
Toobin goes on to characterize “recent law school graduates” as those “at the bottom of the pyramid” and cites the Atlantic for the statistic that “­[m]ore than 180 of the 200 US law schools are unable to find jobs for more than 80% of their graduates.”
I have no quibble with Toobin’s data or his freedom to express his opinion about the state of legal education. I do find it ironic that he took the time to write what could have been a thoughtful piece on the subject in such a time of change, and then simply pointed out that law firm partners make more than young lawyers and that new lawyers are finding it hard to land jobs in the softest economy this nation has seen in a generation.
More troubling, though, is his assertion that law schools are “exploiting” their applicants; and his utter failure to address the massive dearth of access to legal assistance faced by this nation’s citizens–not its law graduates–at the “bottom of the pyramid.”
Finally, Toobin, makes the assertion that “[t]he vast middle of the legal academy—at the big state schools, for instance—is doing only a little better than the schools at the bottom.” He seems to be referring to debt load of graduates, but fails to contextualize the assertion at all. And what of the actual justice-serving work that we in Toobin’s so-called vast middle of the legal academy are engaged in? What of the successful petition to the Inter-American Commission on Human Rights by the University of Miami’s human rights clinic faculty and students on a domestic violence case, yielding a globally landmark decision on police practices in domestic violence cases? What of the MacArthur Foundation grant awarded to Professor Sarah Deer of William Mitchell College of Law to continue her legal work empowering tribal nations to protect their citizens from violence?
Perhaps Toobin’s article title includes the term One Percent because he focused on them, rather than the Occupiers.

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NEW YORK STATE BAR ASSOCIATION VIGOROUSLY OPPOSES PROPOSAL TO BRING UBE TO NY THIS JULY

Posted on November 3, 2014 by Mary A. Lynch

Less than a month ago, the New York State Courts circulated a proposal to change the New York State (NYS) Bar Exam by adopting the Uniform Bar Exam (UBE) along with a second, separately graded “New York Law Exam” segment consisting of 50 multiple-choice questions, tested for one hour on the second day of the exam.   The proposal would make the changes effective for all current graduating law students who face the bar exam in July 2015.    This past weekend, the New York State Bar Association House of Delegates unanimously opposed the proposed immediate changes,  sending a  message to the NYS Board of Law Examiners and to the New York Court of Appeals – do not bring the Uniform Bar Exam and a yet to be formulated or studied New York Exam to NYS in  July 2015.  Even more significantly, the House directed the State Bar President, based on an amendment from the floor,  to do everything possible to prevent immediate implementation of a new bar exam in New York.  

So, how did NYS get to the point where the Courts and the Bar are in such conflict over proposed changes to the bar exam?

For several years,  the NYS Legal Education and Admissions to the Bar Committee (LEAB)  (on which I have formerly served as an active member) has been studying how to improve the bar exam to make it fairer for all groups of test takers and more relevant to what graduates need to know, value and do in the early years of practice. See NYSBA Legal Education September2013Journal particularly page 31.  The Committee, through its chairs, has reached out to the NYS Board of Law Examiners and the Chief Justice about these matters without success.  The UBE was not one of the reform measures which LEAB proposed for further study or pilot projects.

Suddenly, and without notice to the NYSBA LEAB Committee,  co-chaired by  well-respected practitioner Eileen Millett and equally well-respected Touro Law Center Dean Patricia Salkin , the courts circulated and posted the following:

1) UNIFORM BAR EXAMINATION (UBE)
 POSTED OCTOBER 7, 2014

The New York State Board of Law Examiners has recommended to the New York Court of Appeals that the current bar examination be replaced with the Uniform Bar Examination (UBE). The Court of Appeals is considering adopting the UBE for the administration of the July 2015 bar exam. On October 6, 2014, the Court of Appeals issued a Request for Public Comment on the proposal. Submissions will be accepted until November 7, 2014. A copy of the Request for Public Comment is available by clicking this link:   New York Court of Appeals Request for Comment  http://www.nybarexam.org

The proposal and request for comment document asserts that  “The UBE is prepared by the National Conference of Bar Examiners (NCBE) and passage of the test would produce a portable score that can be used to gain admission in other states that accept the UBE, provided the applicant satisfies any other jurisdiction-specific admission requirements. As the UBE is accepted by more states,the portable score will facilitate lawyer mobility across state lines, resulting in expanded employment opportunities for lawyers throughout the nation and facilitating multi-state law practices.”

Given the surprise announcement from the Court on October 6, 2014 of a 30-day comment period (open until this Friday, Nov. 7th) , the LEAB and its co-chairs  had only a matter of weeks to research, discuss and prepare a report for the State Bar Association about the implications of the proposed changes. The LEAB report 10-29-2014 (2) argues that it is simply too soon to discuss the merits of the Uniform Bar Exam and its potential impact on test takers in New York because of the surprise nature of the announcement along with absence of any study or report discussing a need, a cost-benefit analysis, or a discussion of whether there could be disparate impacts on minority test-takers.  LEAB is concerned about potential increase in costs for test-takers, impact on barriers to entry to the profession in New York, and impact on the New York job market.  LEAB  discussions emphasized that the practicing bar has been pressuring law schools to meet the demands of a changing market place including, among other things, producing more “practice ready” lawyers that would presumably include a richer knowledge of New York Law.  Impacts on foreign lawyers and other important issues for consideration were also raised.

On this past weekend, co-chairs Millett and Salkin presented their findings to the NYSBA House of Delegates.  The presentation to the State Bar can be viewed here (Click on the Nov. 1 House of Delegates Meeting and then click on the Report of the Committee on Legal Education and Admission to the Bar)  Co-Chair Millett challenged the notion that the proposed reforms as outlined would actually result in  portability. Co-chair Salkin pointed out that the notion of “uniformity” seems misleading given that in NY many uniform rules are not used and that  current law school  courses focus on statutes different than those used by the UBE .   Significantly, three past presidents of the NYSBA testified against the proposed immediate changes including Steve Younger who emphasized the issues raised by New York’s special connection with international lawyers from around the globe admitted to practice  in New York State.  Many expressed concern for current students facing the July Bar, including Albany Law School Professor Michael Hutter who asked  “Why the Rush to Judgment?” Dean Patricia Salkin and Betty Lugo (President-elect of the Puerto Rican Bar Association founded in 1957) expressed particular concern that minority bar associations were not consulted, and that questions on the proposed brand new “New York Law Exam” component have never been tested on previous exams, a “best practice” for all standardized tests that are given as points of entry to higher education and the professions.

Why does this matter?

The contents, pass rates and disparate impacts of the bar exam matter tremendously .  This is our profession’s gatekeeping device.  It announces  what we value and what we do not value. It will be a make or break change for many law students starting in July who have prepared their course of study under different sets of expectations. For many schools and many students, bar exam subjects and testing methods determine their course curriculum rather than what they need to meet student learning outcomes or preparing for practice. This proposed change deserves further scrutiny and evaluation.  New Yorkers also deserve that the Court evaluate  the success of licensure practices which include clinical evaluation while in professional school as opposed to sole reliance on standardized testing.

See attached SALT Letter-NY Bar opposing the proposed changes.

My  Reaction to the Proposed Changes:

POTENTIAL ADVANTAGES:

  • Should proposed changes result in a decrease in the number of doctrinal subjects tested on the NY Bar exam that will be an advantageous change both for making the bar exam more relevant and for allowing law schools and students to craft better curricular choices to prepare them for the jobs and careers of today and tomorrow.  (see earlier BLOG post on this issue here.)

POTENTIAL DISADVANTAGES:

  • The process for adopting the proposed change is too hasty and is unfair to current third year students and to second year students who have already planned three semesters around the exam.
  • The proposed changes have not been studied appropriately. For example, no one knows if the new format, particularly the 50 question NYS multiple choice format,  will exacerbate the already disparate impact on graduates of color and/or if it will create a separate barrier for admission to those who will make great lawyers but not particularly good standardized test-takers given the speededness/speediness factor – 50 multiple choice in one hour will make or break you on the NY part!
  •  The proposed format fails to address the critical need for bar licensure to include evaluation of actual, supervised, and  limited practice of law while in law school or immediately thereafter.  As a gateway to a client-centered, civic profession, evaluation of the limited supervised practice of law could and should replace – at least some part – of the current standardized testing.

NEW YORK LAWYERS, LAW STUDENTS  AND LAW PROFESSORS ACT NOW!  Comments due by this Friday November 7th.

Address comments to:

UniformBarExam@nycourts.gov

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LegalED helps free classroom time for experiential learning

Posted on October 31, 2014 by Paula Schaefer

Regular readers of Best Practices for Legal Education Blog know about Michele Pistone’s LegalED. LegalED shares short videos of leading law professors discussing various topics. (Subject matter areas include administrative law, constitutional law, copyright, evidence, immigration law, legal ethics, trial advocacy, and more). Videos can be viewed by students outside of class, freeing up class time for hands-on, problem-based learning and assessment.

If you have not already joined LegalED, you can join now by filling out this short form.

An interview with Michele Pistone on flipping the law school classroom is currently featured in Scholastica Blog.

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So you want to be a law professor

Posted on October 28, 2014 by Paula Schaefer

So you want to be a law professor. If you do a quick Internet search (as I did today), you will likely find the following advice:

  • The most important factors in determining your success in the market for a law professor position are: (1) the law school you attended (top 5 is ideal; top 20 is workable; a school ranked below that will make your search difficult); (2) law review membership, (3) federal clerkship or clerkships; (3) having one or more published law review articles after graduation; (4) a couple of years of practice experience; and (5) excellent recommendations from law faculty.
  • Adjunct teaching experience is not helpful to your candidacy.
  • Generally, practice experience is not helpful to your candidacy.
  • If you want to be a clinician, practice experience is likely important and a record of publication is likely less important. In one article, a professor explained that in his time on appointments committees he found that most candidates who had extensive practice experience were more interested in teaching than scholarship. He suggested, “Such people often are better directed toward clinical work than regular tenure-track positions.”

In the new era of legal education, this seems like a faulty framework for law school hiring decisions. Maybe this is a non-issue. After all, with declining applications and enrollments, many law schools are not hiring.

But for schools that are hiring, isn’t it irresponsible to continue hiring based on the old criteria? Today’s law students expect to be prepared for practice. The old model – a single exam at the end of a semester of case law and the Socratic method – does not cut it. It never adequately prepared people for practice. But in the old days (when I went to the law school), we got our experiential learning after graduation.

Today, that hands-on learning needs to start in the law school classroom. Preparing students for practice means providing context. It means putting students in the role of lawyer so that they can begin to understand how lawyers use the law to help solve clients’ problems in practice. It means providing students feedback during the semester.

This can, and should, be part of legal education for all three years of law school. It need not be reserved for clinics and externships. This education is something that all law professors should be able to provide our students.

Who should law schools hire to train the next generation of lawyers? Does it make any sense that people (1) interested in teaching; (2) with practice experience; and/or (3) who did not attend a top law school should be viewed as less qualified for law professor positions? Why is a clinical teaching position not a “regular tenure-track position” at most law schools? Aren’t people with a passion for teaching and/or with significant practice experience just as capable as the “traditional” applicants to produce meaningful scholarship?

Some law schools have followed a different hiring model for many years and others are changing. I am sure there are others that believe there is a work-around. They will continue with business as usual, but lean heavily on clinicians in non-tenure track positions to provide the experiential learning students and employers demand. But maybe it’s time to start thinking about the advantages of a different approach.

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The “Dark Side” of Being a Lawyer

Posted on October 3, 2014 by Kelly Maloney

http://blogs.wsj.com/law/2014/09/15/law-students-need-to-hear-about-the-dark-side-of-being-a-lawyer-says-professor/

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Bibliography on Education Reform

Posted on September 29, 2014 by Patricia Salkin

Fall is here and in addition to the start of the academic semester, the NYSBA Committee on Legal Education and Admission to the Bar is in high gear.  So much has been written about changes in legal education in a short period of time, it can be difficult to keep track of the books, articles, columns, posts, etc. Thanks to Touro Law librarian Laura Ross, a working bibliography on legal education reform has now been posted to SSRN for all to access. http://ssrn.com/abstract=2500987 This is an ongoing work-in-progress, and Laura welcomes emails with suggestions for additions to the list.  Entries in the bibliography provide great starting points for discussion among faculty and law school constituents about the present but more important, the future, for individual law schools.  We hope you will use this to inform your teaching, scholarship and service to the school and community moving forward.  Those of us fortunate to be a part of the Academy have a wonderful opportunity at this moment in time to respond to a rapidly changing legal profession by making deliberate and informed reforms in the way we educate the next generation of lawyers.

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Consider Pre-testing

Posted on September 26, 2014 by andicurcio

The recently passed ABA accreditation standard 302 requires schools to report student learning outcomes. A learning outcome has been defined as something a student can do now that she could not do before [or that she can do better than she did before].

One classic way to measure learning is to give pre-tests. When the class begins, students are tested on  key aspects of learning the professor hopes the students will achieve  during the semester. Pre-test results can be compared to end-of-course results to see if, in fact, students’ learning improved. They also can be used by professors to help identify students’ strengths and weaknesses at the outset and to adjust our teaching accordingly. UNM Dean David Herring’s work on measuring cross-case reasoning is an excellent example of how professors can use pre/post tests to measure learning and improve teaching.  papers.ssrn.com/sol3/papers.cfm?abstract_id=2387855

While pre-tests may provide learning outcome information, the more intriguing aspect of pre-tests is that they may, themselves, be a learning tool. A recent NY Times article reports studies indicating that pre-tests actually improve final exam performance. http://www.nytimes.com/2014/09/07/magazine/why-flunking-exams-is-actually-a-good-thing.html?emc=eta1

The studies’ authors have multiple theories about why pre-tests improve learning. First, they hypothesize that pre-tests help students identify how they will have to think about and synthesize the material. Students begin the course with that information in hand and it shapes their studying.

Another theory is that we suffer from “fluency illusion” – we believe that we truly grasp the material because we have read and highlighted. A pre-test exposes weaknesses in both knowledge and application.

Additionally, there are biological explanations for why pre-tests improve student learning. The brain works via developing networks of associations. Pre-testing primes the brain to develop associations for the material in the pre-test so that when it is later covered in class, the brain can more easily link the new information to existing information.

In the studies presented in the NY Times article, the pre-tests were particularly helpful with multiple choice test performance, and a key to improved performance was providing students with the correct information shortly after they had taken the pre-tests

The value of pretests may depend upon the type of course and the skills and knowledge tested. Yet the idea has intriguing possibilities. Would a pre-test before we covered hearsay improve student learning of that difficult topic? Would a course pre-test on reading/interpreting statutes result in better student performance of this skill at the end of the semester? Would providing 1Ls with a mock exam and an annotated model answer shortly after they began law school improve overall first year exam performance?

Data from other disciplines suggests pre-testing primes students to learn the material and it provides teachers with data we can use to see if the learning occurred. The value of pre-tests in legal education is an idea that certainly merits further study.

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Albany Law Dean Penny Andrews sent this our way for posting:

Posted on September 14, 2014 by Kelly Maloney

http://chronicle.com/article/Lets-Ask-More-of-Our/148559/

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Unlearning as Learning Outcome

Posted on September 7, 2014 by glesnerb

As the newly revised ABA accreditation standards 301 and 302 now require law schools to clearly articulate and publish their learning outcomes for their students, so individual faculty members must do likewise. Yet it is not uncommon to see these learning outcomes statements that read like the table of contents of the textbook used to teach the course. To truly be effective in driving learning and teaching, learning outcomes must be targeted, concrete, measurable and active (not “learning about” but “learning how to”).

How do we most effectively choose and articulate these learning outcomes? In MAKING LEARNING WHOLE: HOW SEVEN PRINCIPLES OF TEACHING CAN TRANSFORM EDUCATION 83-89 (2010)., educational specialist David Perkins emphasizes that learning is most effective if learners “work on the hard parts.” Similarly, the UNDERSTANDING BY DESIGN framework, originally developed by Grant Wiggins and Jay McTighe, emphasizes beginning the search for course goals by looking for the “Big Idea” in the course. These are the ideas or themes that can be used throughout a legal career and that require a lot of work to master.

One of the most effective ways to uncover these “big ideas’ or ‘hard parts” is to focus first on unlearning outcomes – that is, preventing and addressing predictable misunderstandings in the course. Thus, for example, much of the first year of law school is devoted to “unlearning” the positivist philosophy of students who believe the law is resolutely determinate. These fundamental misunderstandings are persistent, difficult to overcome and block learning of new ideas. Students construct knowledge by building on prior understandings. If those prior understandings are incomplete or incorrect, new learning will be flawed as well. As summarized by NATIONAL RESEARCH COUNCIL, COMMITTEE ON DEVELOPMENTS IN THE SCIENCE OF LEARNING, HOW PEOPLE LEARN: BRAIN, MIND, EXPERIENCE, AND SCHOOL: EXPANDED EDITION 11 (2000), “teachers need to pay attention to the incomplete understandings, the false beliefs, and the naive renditions of concepts that learners bring with them to a given subject.”

In her new book, Building a Better Teacher: How Teaching Works (and How to Teach It to Everyone) ( 2014), Elizabeth Green reviews the research concluding that effective teachers (as measured by student learning gains) are those who are able to identify the reasons that students misunderstand and help them to unlearn those misunderstandings.

Some of the most fundamental misconceptions that students bring to a subject from their own experience (or from bad course outlines passed around from prior semesters) must be discovered in the classroom. Brief classroom assessment devices such as “minute papers” or statements for the students to complete can easily generate a range of incorrect or incomplete understandings for any given topic.  The mission to discover student errors leads faculty to many of the best practices in teaching: regular interaction with students, frequent and meaningful feedback, and active learning strategies.

The power of an “unlearning” perspective on assessment improves student learning, but also quickly leads faculty to a deeper understanding of what assessment of student learning oucomes means.  Assessment is not an end-point, a box to be checked, reported and forgotten, but is an iterative process of discovery and experiment that drives students and faculty learning alike. Assessment tools (such as quizzes, socratic dialogue, essays, simulations, and reflections) might be used to unearth student misconceptions.  These misconceptions then become the basis for the learning outcomes around which one can build a course and assessments then can be used to determine the extent to which one is successfully dislodging misunderstanding and misconception and replace it with a solid framework mastery.

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Developing the habit of critiquing the law – or legal nihilism?

Posted on September 7, 2014 by Margaret Moore Jackson

We often ask students to consider the role of law and policy in shaping society and providing a means for solving problems. But what problems has the law ever solved?

Posing that question to students, what do they come up with? Certainly, the legal system provides a way for disputes between individual persons or entities to be resolved, one way or another. The rules of the system say that the dispute is over.

But what about overarching, systemic, societal problems? I’m thinking about residential segregation at the moment, and the resulting disparities in wealth accumulation, educational quality, and employment opportunity, just to name a few. Discriminatory housing policies were once implemented and enforced by law; then they were prohibited. Particularly where a good share of the responsibility for the development of a given problem can be directly traced to prior law, have legal reforms ever resulted in solving that problem? Is this a question that can be posed in some manner to students, as a means of developing the habit of critiquing and improving the law?

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Simulation Courses and Standard 303’s “Primarily Experiential” Requirement

Posted on September 2, 2014 by Margaret Moore Jackson

Many professors use simulation exercises in their teaching; not as many have ever taught a simulation course. What does it mean? What is required?

To meet Standard 303’s criteria under the new, six-credit experiential requirement, a simulation course must:

  • be primarily experiential in nature
  • integrate doctrine, theory, skills, and legal ethics
  • engage students in performance of one or more of the professional skills identified in Standard 302
  • develop the concepts underlying the professional skills being taught
  • provide multiple opportunities for performance and
  • provide opportunities for self-evaluation.

Additionally, under Standard 304, “[a] simulation course provides substantial experience not involving an actual client, that

(1) is reasonably similar to the experience of a lawyer advising or representing a client or engaging in other lawyering tasks in a set of facts and circumstances devised or adopted by a faculty member, and

(2) includes the following:

(i) direct supervision of the student’s performance by the faculty member;

(ii) opportunities for performance, feedback from a faculty member, and self- evaluation; and

(iii) a classroom instructional component.”

These two standards provide a relatively detailed list of requirements, but the very first item seems the least well defined. What does it mean for a course to be “primarily experiential in nature?” If a two-credit seminar course is enhanced with an additional hour of simulation activities, meeting all of the other listed requirements, is the resulting three-credit course “primarily experiential in nature?” All three credits?

Maybe the answer depends upon the degree to which the simulation is integrated into the teaching of doctrine. A course can ask students to think about the implications of doctrine from the perspective of the role they are assigned to play. If woven throughout the course, references to the simulation can enrich students’ understanding of the content, which they will then apply in the performance aspect of the course. Still, assuming the two credits of content are still being taught, is this course “primarily experiential in nature?” Or does this requirement mean simulation courses must be advanced-level options for students who have already completed a course introducing the content, such that the primarily experiential application of doctrine can take place? I don’t think that’s what it should mean.

Approaching simulation courses from design principles instead, several authors ask us to think carefully about the goals of our simulation courses and the ways in which we assess student performance. See, e.g., Roy Stuckey, Teaching with Purpose: Defining and Achieving Desired Outcomes in Clinical Law Courses, 13 Clinical L. Rev. 807 (2007); Paul S. Ferber, Adult Learning Theory and Simulations – Designing Simulations to Educate Lawyers, 9 Clinical L. Rev. 417 (2002); Jay M. Feinman, Simulations: An Introduction, 45 J. Legal Educ. 469 (1995). The Carnegie Report says, “Doctrinal teaching goes on informally as students engage the simulated cases, so that assignments used to teach practical lawyering skills also reinforce their learning of legal analysis.” Stuckey, supra at 823, citing Carnegie at 226-27. But surely doctrinal teaching can also take place more formally in a simulation course, provided it is integrated with the simulated role that makes the course primarily experiential.

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Ready to Learn, Beyond the Black Letter of the Law | By: Ray Brescia

Posted on August 28, 2014 by Kelly Maloney

In his recent op-ed for the National Law Journal, Ray Brescia discusses the need for upper-level classes in law school that afford students a chance to learn the art of the legal profession, and not just the tools of the trade.  Read: As School Year Begins, Think Outside the Tort.

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Top Ten Things Law Professors Can Do This Year to Learn About EdTech

Posted on August 28, 2014 by Michele Pistone

Let’s face it, the role that technology can play in the practice of law is becoming more evident – with predictive coding, eDiscovery, and companies like LexMachina that use legal analytics to, among other things, predict the outcome of patent litigation.  But many in the legal academy still cannot conceive of how technology can change legal education.  If you are in that camp or know others who are, let me suggest that we do not dismiss the potential for change in legal education without knowing more about the emerging field of edtech and the forces behind it.  Want to learn more?  Here are ten things you can do this year that might change your thinking about the role of technology in the future of legal education.  The suggestions come from my article, which has other suggestions as well.

1.  Catch up on some important reading.  Read David Thomson, Law School 2.0: Legal Education for the Digital Age (2009).  Also, read the work of Bill Henderson, including A Blueprint for Change, 40 Pepperdine L. Rev. 461 (2013) and Andrew P. Morriss & William D. Henderson, Measuring Outcomes: Post-Graduation Measures of Success in the U.S. News & World Report Law School Rankings, 83 Indiana L. J. 791 (2008). Read David Barnhizer’s article, Redesigning the American Law School, 2010 Mich. St. L. Rev. 249 (2010). 

2.  Read, too, assessments about how technology has impacted and will continue to impact higher education generally, works such as Disrupting College: How Disruptive Innovation Can Deliver Quality and Affordability to Postsecondary Education, and The Department of Education’s Meta-Analysis and Review of Online Learning Studies. 

3.  Learn about the millennial generation who are “born digital” and how their more networked and connected lives affect the way they approach learning.  A great book on this topic is by John Palfrey and Urs Gasser of Harvard Law’s Beckman Center on Internet and Society, Born Digital: Understanding the First Generation of Digital Natives (2008).  Think about the implications of the fact that between 2000 and 2002, the largest group of first time internet users were between two and five years old, placing the oldest members of this group in college now – and in law school soon.  Begin to understand how the emerging “participatory culture” is changing what one needs to learn to be fully prepared to function in the twenty-first century.  You can do this by reading Henry Jenkins, Confronting the Challenges of Participatory Culture: Media Education for the 21st Century (MacArthur Foundation). 

4.  Begin to explore the potential for law schools to employ teaching methods that use technology to a greatly enhanced degree.  For example, read about flipping the classroom, a teaching methodology that blends online lectures (which students view at their own pace as homework) with in-class instruction, as it is used in K-12 education, Jonathan Bergmann & Aaron Sams, Flip Your Classroom: Reach Every Student in Every Class Every Day (ISTE/ASCD, 2012), or watch these videos on flipped learning in legal education.  By migrating lectures to the web, flipped learning can free face-to-face classtime for active learning, including Socratic dialogues, drafting exercises, simulations and role plays.  

5.  Investigate innovations in adaptive learning, a technique using computer software first to assess what a student knows and then to adapt the content taught to the knowledge level of the student, thus providing a more personalized learning experience for each individual.  Computer-based adaptive learning is already being used by the Kaplan test preparation company for college students planning to take the LSAT and GMAT; by Khan Academy for younger students; and by many companies, such as Knewton, for a wide range of users.  

6.  Consider the impact that gaming can have on education.  Follow the work of Jeannette Eicks (Vermont) and Stephanie Kimbro (Stanford), both of whom are working on projects that involve gaming and law.  Read James Gee, What Video Games Have to Teach Us About Learning and Literacy (2003); James Gee, Good Video Games and Good Learning, at http://dmlcentral.net/sites/dmlcentral/files/resource_files/GoodVideoGamesLearning.pdf.  Educational games are available for a variety of topics, including civics, see http://www.icivics.org/ (a game-based website started for former Supreme Court Justice, Sandra Day O’Connor); climate change, see http://www.bbc.co.uk/sn/hottopics/climatechange/climate_challenge/; national conflicts, see http://www.peacemakergame.com/game.php; and even algebra, see http://www.dragonboxapp.com.

7.  Monitor the impact that recent decisions by law schools to develop online programs for non-JD degrees has on programs at other schools, such as the decision by graduate tax law programs at, among others, Alabama, Georgetown, NYU, Villanova, and Boston University to offer their programs online. Read Distance Learning in Legal Education:  A Summary of Delivery Models, Regulatory issues and Recommended Practices. Attend a meeting of the Distance Learning in Legal Education Working Group, organized by Vermont Law School professors Rebecca Purdom and Oliver Goodenough.  The group meets three times a year, once in the fall (which is in a few weeks at William Mitchell School of Law), once during the AALS Annual Meeting, and a third time in the spring.  

8.  Monitor the effectiveness and reaction of law graduates who take online bar preparation courses such as Themis. 

9.  Explore some of the new apps being developed for iPads and Androids to teach legal concepts.  Law Stack is an Apple app for legal research loaded with various federal statutes.  Law School Dojo, by Stanford Law’s Margaret Hagan, is an app with quizzes on legal concepts for a range of subject matters, including contracts, torts, civil procedure and international law.

10.  Register for and attend the 2015 AALS Clinical Conference, May 4-7 in beautiful Rancho Mirage, CA.  The theme of the conference is the “New Normal.” One of the three tracks for the conference is devoted to the future in the “new normal,” both for the practice of law and for legal education. As to law practice, we hope to address how professors can understand the rapid and profound technological change that could well remake law practice and how those changes can advance our work for social justice. We want to explore how changes in service delivery and structure of law practices can and should impact our teaching. And we hope to address how professors can better use technological advances and insights from learning sciences in their teaching. 

The internet, the driver of all the changes and developments noted above, is a technology and a tool that, for the reach and extent of its often disruptive and its often liberating effects, can be compared only with the printing press.  When writing of Gutenberg’s invention, Elizabeth Eisenstein, a careful and meticulous historian of immense reputation, wrote (favorably quoting Renaissance scholar Myron Gilmore) in her two-volume magnum opus, The Printing Press as an Agent of Change, that “’[i]t opened new horizons in education and in the communication of ideas. Its effects were sooner or later felt in every department of human activity.’” As I explain in my recent article, I strongly believe that “[s]o too it is, or sooner or later shall be, with the internet.”

Are there things I am missing?  Add them in the comments below.

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What price is right? Law School Education and Paul Campos

Posted on August 27, 2014 by genevabrown

What is a poor law student to do?  Paul Campos has yet again set his sights on what he considers is the bain of legal education- for-profit law schools.  Campos details how how a Chicago-based private equity firm got into the business of law schools.  Summit Partners created InfiLaw and began to become legal educators by first purchasing Florida Coastal Law School and later adding Phoenix School of Law and Charlotte School of Law.  The results while good for Summit Partners who receive their profits upfront according to Campos, left the InfiLaw graduates the big losers in long run.  Campos noted that the average Infilaw graduate accumulated over $200,000 in debt while only 36% of the Class of 2013 had actual legal employment.   This follows an overall trend in higher education where undergraduates and graduate students alike are funding their education with high-interest private loans that will take a life-long career of work to discharge.  I pose a question that Prof. Bill Whitford taught me in my Contracts class at the University of WIsconsin more than a few years ago.  What if the high costs of a legal education is not unconscionable as Campos suggests but the price a population of specialized students are willing to pay to gain access to a legal education that still has some social capital?

I am not a free market guru who will chant the mantra of law students paying for what the market determines is a valuable education.  But there is a grain of truth in arguing that students who would not be accepted at traditional law schools are being given an opportunity to have a traditional law school experience.  I do not know the statistics for the Infilaw students but I have a hunch that many of these students are first generation attorneys who come from modest working class or disadvantaged backgrounds. They are willing to take a chance on themselves and make a life-time investment that may not pay off in the long run.  The forecast is not good for Infilaw students.  Will they pass the bar on the first attempt?  Will they acquire a level of employment or income that will erase their debts?  Paul Campos says no and statistics will back up his claims.  But do we shut out a group of over-achievers because only a small number will gain what legal scholars would deem success?

In my contracts class those many, many years ago, Prof. Whitford explained that there is a population that businesses are willing to take a chance on who have no credit or bad credit and who are willing to take on high interest rates to obtain merchandise.  There is a good chance that this poor-credit/no-credit population would default on credit and be unable continue payments.  The businesses knew and took the chance but built in the loss upfront with high-interest rates.  The buyers knew they were paying far beyond the value of the merchandise just to be able to obtain the merchandise.  Were the merchants unconscionable Prof. Whitford asked?  In a consumer culture that is awash with the  creation and cultivation of desire and consumption, how could anyone resist?  Even those with poor or no credit.   Didn’t we risk becoming paternalistic in determing who deserved what?  Prof. Whitford posed provocative questions to my first year class.

I am not a proponent of for-profit law schools.  I am the product of the  Chicago Public School and the public university systems.  I obtained a quality, low cost education that no longer exists.  Campos’ article is a condemnation of the for-profit law school system that seeks to prey on a certain population.  I agree.  But we have no alternative.  States are seeking to strip affirmative action programs from the law school admissions process.  The University of Texas Law School buttresses for annual attacks on it’s admissions process.  First generation law students, economically disadvantaged law students and law students of color have no viable alternatives.  If these students are willing to take on the debt, derision and scorn of being a product of a low-tiered, for-profit system, I will not discourage them.  They attend with full knowledge but want to become attorneys no matter what the costs.  This is not a free market economist argument of caveat emptor but a lawyer who has loved the practice and teaching of law for over 20 years and does not wish to see it closed to those who desire the same experiences-no matter the costs

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Legal Education and Professional Identity

Posted on August 18, 2014 by Steven Friedland

I participated in a discussion group about teaching the formation of professional identity at the Southeastern Association of Law Schools (SEALS) conference in early August, led by Professors Ben Madison of Regent University School of Law and David Thomson of the University of Denver Sturm College of Law.  It was clear there was lots of passion in the room to engage students in the formation of professional identity directly and throughout law school.  The real question was how to do it.  There were some very good ideas of how to do it within the parameters of traditional classes, such as Professional Ethics, and how to do it outside of classes by affecting the culture of a school and its environments.

One of the main problems in this area, it seems to me, is that the notion of ‘professionalism’ is often a foreign concept to students; after all, until someone becomes a lawyer, how will they understand what this means?  This is where learning science comes into play, specifically experiential education, the kind advocated by David Kolb in his famous experiential learning cycle way back in 1984.  Kolb suggested that experience should be used as a learning tool in stages. An experience serves as the first stage, and is then followed by reflection, abstraction and theorization, and finally, the transfer of knowledge to new problems or questions.

This learning cycle fits into real life quite well.  If one is learning to drive, for example, then it is important to progress from the classroom to the passenger seat to the driver’s seat.  Of course, the ‘driver’s seat’ need not be attached to a two thousand pounds of nuts, bolts and engine, but can at first be behind the wheel of a simulator.  Simulation and exercises in legal education also can serve as a platform for the formation of professional identity.  For example, a simulated oral argument about a case could involve two teams of students asked to argue different positions.  This division into groups requires collaborative work and presents an opportunity to explore how professionals participate and communicate on teams.

Students also could be given non-legal exercises that raise professional identity issues.  If students were walking home from school one night and see a $20 bill sticking out of an ATM machine with no one else around, would they take it?  Why or why not?  Does it matter whether the students were now working in a courthouse where the ATM is located or working as a lawyer for the bank that owns the ATM?

From a different perspective, what if the students were mountain climbing in the Andes Mountains and were roped up with the person closest to them in the entire world at 20,000 feet. In this hypo, the person roped to the student slips and falls off of the mountain.  The only way the student can save him or herself is to cut the rope, leading to a long fall for person #2.  Would the student cut the rope?  This question raises professional ethics of a different kind — what is the mountain climber code in this situation?  Also, what factors would the student consider in making such a decision? (A somewhat similar situation actually occurred in real life with two mountain climbers high in the Andes.  The mountain climber on the mountain cut the rope and the other climber, dangling below, fell, but survived.  I would have loved to have eavesdropped on their conversation at the bottom of the mountain. See Touching the Void (2003), based on a 1988 book by Joe Simpson of the same name.)

All told, the formation of professional identity can help students connect with and maintain the values that might have landed them in law school in the first place.  And it could weave into the understanding of law the importance of the lawyer’s role within the system – and how service to others might require a different application of values than service to oneself.

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