Council Hears Testimony on 405, experiential credits and pro bono

Posted on February 7, 2014 by Mary A. Lynch

The past two days in frigid Chicago, members of the Council on Legal Education heard testimony from almost 20 speakers deeply interested in the  future of legal education and the education of future law students.  I was fortunate  to make it out of icy New Yorkto be able to attend yesterdays morning session.  I was impressed with the speakers’ deep knowledge of legal education and  their mastery of the intricacies of each of the multiple versions of proposed revisions.  Several speakers advocated strengthening the pro bono requirements of the standards.  Even more  argued in support of the proposal to require 15 credits of experiential courses.

The issue of whether students could receive academic credit for paid employment received serious attention.   DePaul Law Student Matthew Kerbis of the ABA’s Law Student Division requested that the Council change the standards to allow students to receive both credit and pay, while Professor Kate Kruse  of the Clinical Legal Education Association urged that the current rules properly acknowledge that paid employment and a properly structured academic experience involve different sets of goals, legal frameworks and expectations.  Judge Solomon Oliver, Chair of the Council,  asked about possible exploitation of  law students by employers.

SALT representative and University of Minnesota Professor Carol Chomsky,  American University’s Professor Ann Shalleck and Hamline’s Professor Kate Kruse, all tenured professors, each argued against the two alternatives to 405 now before the Council, which effectively eliminate tenure and security of position for future teachers.  They all agreed that the Council should support tenure and 405(c) security  of position so that legal educators may continue to exercise academic freedom,  to contribute educational perspectives to institutional governance, and to transform the outdated Langdellian model and integrate the professional development  of law students’ practical lawyering and reflective judgment into American Legal education. As American clinical faculty became more secure under tenure and 405 (c), they took risks in teaching, pioneering a pedagogy which has become a model nationally and internationally. However, for those without tenure, Kruse argued supported by a chart CLEA submitted, there is a demonstrable absence of meaningful participation.

The President of the Association for Legal Writing Directors, Anthony Niedwiecki argued in a similar vein  for the need to provide security of position and meaningful participation in governance to  legal writing professors.  In his testimony, Professor  Niedwiecki referred to a recent survey of legal writing faculty which ironically shows attacks on LRW professors at the very moment that the profession and accreditors are demanding law schools provide the multiple assessments and hands on skills development LRW professors do best.

In my experience, at my school, the warnings of Kruse, Shalleck, Chomsky and Niedwicki are not speculative. We are experiencing those attacks now.

For written comments (including my own) submitted to Standards Review see http://www.americanbar.org/content/dam/aba/administrative/legal_education_and_admissions_to_the_bar/council_reports_and_resolutions/20130906_notice_comment_chs_1_3_4_s203b_s603d.authcheckdam.pdf

Tune in later today for a report on the Standard Review Deliberations.

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Publishing “Building on Best Practices in Legal Education”

Posted on February 4, 2014 by dmaranville

Regular readers of this blog know that a team of editors, authors and readers are hard at work on a follow up volume to Roy Stuckey (and others), Best Practices in Legal Education (2007), published by the Clinical Legal Education Association (CLEA).

I’m delighted to announce that the new volume, Building on Best Practices, expected out in early to mid-2015, will be published by Lexis. As a service to the legal education community, Lexis will make the book available to all law teachers for free through their Electronic Library. In addition, they state that they will do a print run of the book and provide copies for free on request.

Along with author Cynthia Batt, my co-editors Lisa Bliss and Carrie Kaas will be presenting on the book at this Friday’s New York Law School Clinical Theory Workshop, as I listen in eagerly from Seattle. If you’ll be in the area, please join the discussion. Contact Steve Ellman of NYLS for more information.

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Teaching the Millennials, Part 2: The Classroom is Alive

Posted on February 2, 2014 by Irene Scharf

My January 21 blog entry about how to best reach, and teach, the “miillennials” in law school, an issue raised in the fall 2013 article by Professors Benfer and Shanahan, highlighted several attributes of these students.  While noting that these students’ preferences are particularly well-suited to clinical education, I neglected to mention other aspects of the law school curriculum to which the students’ inclinations are well-suited.  Their orientation toward service, desire to contribute to the greater good, comfort with frequent and multiple forms of feedback, and enthusiasm for using real life opportunities for learning suggest that we can build into our curricula productive classroom engagements through a variety of experiential collaborations.   At UMass Law, we are taking advantage of these possibilities through a pilot course entitled “Community Research Project,” which satisfies our third semester Legal Skills requirement.  During the pilot semester this fall, Professor Shaun Spencer guided students to develop their lawyering skills and values in a real-world context.  Students in the class worked in teams to plan, organize, and complete a legal research and writing project involving constitutional, statutory, and empirical questions in support of an effort to amend the Massachusetts involuntary commitment statute.  Through this collaborative effort, students enhanced their skills in legal research, analysis, and writing; and developed skills in problem solving, interviewing, professionalism, and teamwork (they worked both on their own and in groups).  

Many of the suggestions made by Benfer and Shanahan can be tested in such collaborative projects. First, students’ experience in an ongoing process, requiring give-and-take with the “client” organization, can challenge their focus on short-term achievement (grades) rather than long-term success. They can experience critique of their work product not as destructive or insulting but as a way to help them become better lawyers by learning the importance of attentiveness to their clients’ needs.  They can experience the internet as just one of a number of tools to be used in their own law practices, learning over time that instant answers are often insufficient to help them develop the necessary lawyering skills of critical thinking.  

Courses such as the Community Research Project undoubtedly raise many issues for faculty, including how to choose the partner organizations, “who’s in charge?” — experiential learning/legal writing/skills directors/others, grading/assessment policies, students’ rights to object to subject-matter of projects, appropriate student preparation, use of journaling, and more.  Our faculty will be considering these issues soon as it decides whether to permanently incorporate this course into the curriculum.

For those interested in learning more about this project, Shaun and I will be discussing at a conference session, “Bringing Outside In: Social Justice Collaborations in the Legal Writing Curriculum,” this June 29 in Philadelphia during a one-day workshop on Social Justice Collaborations in the Legal Writing Curriculum, just before the start of the Legal Writing Institute Conference. 

 

  

 

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Metaphors for an Integrated Curriculum

Posted on January 26, 2014 by dmaranville

Between the Building on Best Practices book project and a new role this year as Chair of Curricular Innovation, I’m pondering what we mean by integrating our curriculum. I’ve been playing with potential metaphors. Permeable box? Didn’t resonate. Suitcase — still playing with that one. Garden — potential but maybe too complicated for everyday conversation.

One that seems to work for many people — my dean loves it! — is a cake metaphor. Two contrasting images this metaphor brings up:

Think of the curriculum as a layer cake:
— in the first year we teach vocabulary, basic concepts, legal analysis and argumentation
— in the second year add in some simulation based skills courses like interviewing and counseling, negotiations, trial advocacy.
— in the third year, add real experiences representing clients, or capstone courses bringing together a range of substantive material, skills and opportunities for professional formation.

Or view it as a marble cake: incorporate each of the different aspects of legal education throughout all three years of the curriculum — building the knowledge foundation, developing a professional identity, learning professional skills, acting in role, including real experiences with clients.

I’m a fan of the marble cake myself. (Or perhaps it’s almond cake with chunks of almond paste & toasted almonds –oh, the perils of blogging while hungry.) If we emphasize only 1 side of becoming a lawyer in the first year — the intellectual, analytical side — we lose, or skew, too many of our students.

I’ve argued for years that “early and often” for clinics and other real experiential opportunities is the best strategy to give students context for their learning to help them understand and remember, maintain their passion (or enthusiasm, if you prefer), and teach lawyering skills. Colleagues such as Russell Engler and Susan Brooks reach similar conclusions.

Whichever approach to curriculum you prefer, does the cake metaphor help you in understanding our choices?

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The Task Force Speaks!

Posted on January 26, 2014 by Lauren McCormick

By: Margaret Martin Barry

I suspect that like many others in legal education, I turned to the final word from the Task Force on the Future of Legal Education with interest and hope.  After all, it has become the poster child for the growing crisis in higher education.  We recognize that there is high personal and public value in an educated populous.  That accounts for our investment in elementary and secondary education. However, unlike many of our Western counterparts, we limit our investment in higher education to loans, program-based grants and ever diminishing contributions to state schools.  What the report describes as the tension between the public and private value of legal education is not so much a tension between these two values as a lack of collective will to invest in our future through education.

This does not mean that higher education, including law schools, is off the hook with regard to  addressing costs.  There is evidence that law schools have gone to task in doing just this. However, it is unrealistic to look back to a day when law schools were less expensive and conclude failure if the earlier benchmark is illusive.  Higher education costs more today.  Similar to others in higher education, law students need and expect access to technology, high quality education that expands and refines their thinking and effectively prepares them for the work they hope to do, academic support, career support, and support for extracurricular activities that nourish their academic and professional development.  To produce this costs money.

Central to the production costs is having faculties that are dedicated to meeting educational needs, needs that are part of the public and private bundle of values the Task Force references.  While one may question the historic inflexibility of law school faculties in the face of critique of their educational priorities, I know I have, the inflexibility has been essentially born of a fundamental disagreement with regard to what constitutes high quality in legal education and priorities in maintaining that quality.

As the Task Force points out, the decibel level of criticism coupled with uncertainty about the market for legal services has induced a “climate receptive to change”.  Many law schools have engaged in cost cutting measures and curricular redesign.  Support for teaching is no longer limited to the broader support for scholarship, and the trajectory towards reduced teaching loads to support increased production of scholarship is halting, or at least being reconsidered.

Law schools and their faculties are also less certain that their task is sufficiently achieved if legal education is limited to the exercise of covering a body of doctrine and learning to think and write in a certain way.  Other skills that are part of the value a legal education should provide are making their way into the core goals for providing a quality legal education.  Slowly, the old dichotomy between what the 2007 Carnegie Report described as “knowledge” and the other competencies that a legal education suggests, which Carnegie referred to as “skills and values” is breaking down.  Yet the Task Force identifies dichotomy without recognizing its limited value or acknowledging its growing irrelevance:

“…[I]t is commonly stated that the basic purpose of law schools is to train lawyers, but there is no consensus about what this means.  It matters greatly whether, for example, one takes a view of lawyers as deliverers of technical services requiring a certain skill or expertise, or as persons who are broad-based problem solvers and societal leaders.”

Can one seriously deny that lawyers deliver technical services requiring not a certain skill but a range of them?   Are problem-solving and leadership skills somehow relegated to another strata that can be disaggregated from the professional role?  The Task Force goes on to correctly point out that a law school’s “views about purpose may not be reflected well in the curriculum”.  However, this is not because of such a narrow view of what lawyers do but a limited, though evolving, view about the extent of law school’s role in preparing them to do it.

To move law schools along the path of change, the Task Force speaks much about heterogeneity.  I certainly value diversity, but when it comes to what law schools should offer, there are considerations not specifically addressed by the Task Force that should be expressly understood before we get too far down the path.  Society, including the law student, has an interest in knowing that a graduate of a law school has a working foundation in the work that lawyers do.  We can discuss whether this expectation is realistic, whether indeed clinical legal education is the answer or post law apprenticeships are inevitable or legal education should train specialists instead of generalists, but legal education has for some time promised more than we produce.  Now that the cover provided by the law firms and agencies that provided post graduate training is eroding, the reality of the limitations of traditional legal education is more apparent.  Expansion of clinical offerings and outreach to the bar are manifestations of this recognition.

Connected to its assessment of the financial burden of law school, the Task Force speaks of the need for more limited training that would allow for greater service to those who cannot afford the debt laden lawyer.  It referenced the Limited License Legal Technician provisions that Washington State has been rolling out.  Limited licensing may well be inevitable for a variety of reasons, though without specific funding for the services they would provide, it may not do much more than what lawyers offering unbundled services and pro bono legal services are currently seeking to do for those unable to otherwise afford legal service.

The Task Force proposes several new entities within the ABA to address cost, debt burden and assessment and improvement of legal education.  It does not discuss where these entities should fit in relation to the existing Section of Legal Education and Admissions to the Bar.   However, it does goes on to list a number of Accreditation Standards and Interpretations of Standards that the Council of that section should “eliminate or substantially moderate”.   I believe it is fair to say that several have been under significant reevaluation for the past several years.  What I found of concern from a Task Force that took a year to produce its report is the fact that it listed the Standards and Interpretations without connecting their existence or elimination to goals for the quality of legal education, or even directly to cost reduction.

For example, while one might argue that the current detail in interpretations 402-1 and 402-2 are byzantine and not directly related to ratios in a given classroom, is it enough to say that a law school must have “a sufficient number of full-time faculty to fulfill the requirements of the Standards and meet the goals of its educational program”, which is what would be left if the interpretations are eliminated (something that is currently proposed by the Sections Standards Review Committee, by the way)?  Once we identify full-time faculty as a basis for developing a student faculty ratio, what do we do about administrators and those full-time teachers that a law school might not identify as faculty?  What benchmark do we have for enforcing this indicator of quality?  If we are responding to concerns about costs, should classes of 300 students be acceptable because it is cheaper and arguably meets educational goals that can be identified?

Similarly, if we throw out Standard 405, and 206(c) and 603, what are we saying about leadership in law schools?  Why, at the core, does higher education value security of position?  It has long been understood that such security attracts those who value legal education and want to dedicate themselves to the teaching, scholarship and service that is expected to maintain and improve law schools that have, for all the flaws identified and assessment in progress, managed to provide significant educational value.  The idea that tenure is dragging law schools down ignores not only the dedication of many law professors, but their ability to speak to the educational mission they serve instead of being ignored or dismissed by administrators who may be more focused on a bottom line than balancing the equally significant institutional purpose.

The report also spends time discussing generally the need for greater ability to innovate, suggesting that the ABA Standards inhibit heterogeneity.   While I agree that the variance process should be made more transparent and that successful innovations should lead to appropriate regulatory modifications, it is worth reminding ourselves that not that many schools have innovated within what is currently consistent with and arguably encouraged by the existing Standards, much less sought variances to go beyond them.  It may well be that far more than underscoring differences, we first need to be more certain than we are about what constitutes a sound legal education, at any institution.   The end result may not be as homogenous as the Task Force fears, but it should provide greater assurance of reliable preparation for the profession.

All this said, I am grateful to the Task Force for undertaking this project.  I know it reflects a lot of work over and above busy schedules.  Given the membership and some of the input entertained – indeed, given the waves of criticism that legal education is facing coupled with uncertainty about legal service market, I dared to hope for something more than additional committees, cursory comments on accreditation standards that have already been the source of significant discussion, and a call for law schools to reduce costs and other steps the vast majority are already undertaking.  Maybe the message is that there is nothing new to add, we will continue to mull it all over, propelled relentlessly by evolving markets and minimal public commitment to the value of higher education.

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Law Firm Partners: Seeing the Future

Posted on January 26, 2014 by Irene Scharf

In “A Lawyer and Partner, and Also Bankrupt,” James B. Stewart of the New York Times [http://www.nytimes.com/2014/01/25/business/partner-in-a-prestigious-law-firm-and-bankrupt.html?_r=0 ] yesterday contextualized the plight, even for large-firm lawyers, of the constraining forces in the legal profession, while linking the fall-off in law school applications to this “widespread malaise.”   Stewart highlights the story of Gregory M. Owens, a 55 year-old successful Wall Street lawyer and former partner at Dewey, Ballantine, Bushby, Palmer & Wood, and after a merger, Dewey & Leoeuf.  Mr. Owens, who still works at a “eminent global law firm,” White & Case, has just filed for bankruptcy after being demoted to a nonequity “service” partner.  Service partners neither share the risks nor rewards of the law practices and generally do not have their own clients; thus, their salaries are held to levels far beneath those of equity partners.  When Mr. Owens declared bankruptcy, his listed annual salary $375,000 a year and, while clearly more than that earned by most, it is not sufficient to satisfy his New York City-based expenses, which include upwards of $10,000/month in child support and alimony, $7,500/month rent, and all the rest.

The recent growth of the service or nonequity partner (by the end of 2012, 84% of the largest 200 law firms maintained service partners, up 20% since 2000) is no doubt troubling for aspiring large-firm lawyers.  It signals that these firms are having trouble maintaining the high salaries of the lawyers already in their firms.  The service partners are the most vulnerable of all, as they are often not the rainmakers, and “not economically viable,” according to an expert in law firm management.  Scott Westfahl, professor of practice and director of executive education at Harvard Law School, suggests that, in order to protect their job security, these law firm employees must develop a “deep expertise that’s hard to find” elsewhere.   Professor Westfahl warns that, even with this additional expertise, “[t]here’s no job security”  —   even full equity partners are under growing pressure by clients who are demanding more accountability, resulting in more and more partners being “de-equitized.”

One suggestion offered by an equity partner interviewed for this article for those in practice today: periodically reinvent yourself and be prepared to work “more hours than rainmakers” to justify maintaining high salaries.

Given this current picture of the large law firm, what other suggestions might be gained from Mr. Owens’ story, for those of us involved in legal education as either professors or potential law students?  Perhaps we all might realize that “following the money” may not necessarily make for a successful career.  Maybe if law professors structured their curricula to support new lawyers who “follow the people” — both individuals and small business people in our communities who need but cannot afford legal assistance — these new lawyers would see that they could build satisfying lives in the law, ones that, while not necessarily supporting staggering material wealth, would nonetheless support interesting and appreciative clients, constructive and supportive relations with colleagues, gratifying intellectual challenges, a decent way of life, and constructive participation in our society.

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Teaching the Millennials

Posted on January 21, 2014 by Irene Scharf

Just appearing in the Fall 2013 edition of the Clinical Law Review is an astute and riveting article by Emily Benfer and Colleen Shanahan, “Educating the Invincibles:  Strategies for Teaching the Millennial Generation in Law School” that should give us all pause, especially those of us now teaching our second and third generation of law student.

After describing specific types of nurturing that this generation experienced during their formative years, the article provides detailed and specific strategies for teaching these students, who were born between 1981 and 1999. It is assumed that, because of the particular formative experiences these students experienced as children, they have distinct needs, as learners, than did those of other generations, and that, if we want to “reach” them most effectively, we need to understand first who they are, so that we will be able tailor our teaching to them, in both the traditional and clinical types of classrooms.

The authors see these students as “confident and optimistic,” “service and cause-oriented and want to contribute to the greater good.”  Yet they are also described as pressured, impatient, sheltered, and privileged. Because they have been told they are special, they can seem to have a sense of entitlement.  Their assumption that short-term achievement equals long-term success causes them to focus on grades and not on the processes by which their grades are achieved.  They do not expect failure, so are often surprised when their performance does not result in high praise.  Again, because they were taught that they are “winners” simply for participating, they are accustomed to receiving awards for just that. They can become uncomfortable with criticism and  “aggressive and even caustic when criticized.”

Further, according to Benfer and Shanahan, being inseparable from the internet, these students are able to take in massive amounts of information simultaneously and consider themselves to be efficient multi-taskers.  Yet, because they are accustomed to instantaneous answers that do not require deliberation or examination, they may not have developed the tools to extract the depth of information necessary to develop critical thinking.

The types of learning environments preferred by Millennialists are made-to-order for clinical professors.  According to the authors, these students thrive in learning environments that are self-directed, interactive, collaborative, team-based, and hands-on; and that employ frequent and multiple forms of feedback, multi-media, and stress simulations and real life opportunities for learning.

On the other hand, because of their common experiences with teamwork, the authors caution that these students may be uncomfortable working independently, perhaps due to the higher risk of personal failure.

Especially if you’re engaged in clinical teaching, do you recognize any of these traits in your recent students?  Have they chafed at independent work?  Been so over-confident that they have prepared insufficiently for court or other case responsibilities?  Pushed back at any meaningful critique?  Seem to feel they are entitled to that “A,” regardless of the difficulties they had with their class and/or case responsibilities?  Expected results to come not from hours of work but from an initial impression gained while reading a couple of pages?   If so, you will both enjoy and find helpful “Educating the Invincibles.”

Filed under: Best Practices and Clinics, Uncategorized | 3 Comments »

Legal Education Challenges in U.S. and Japan

Posted on January 10, 2014 by dmaranville

A belated tip of the hat to Chuck Weisselberg and his colleagues at Berkeley, and Wasada for sponsoring a fascinating conference on December 16 & 17 bringing together U.S. and Japanese legal educators to discuss the challenges facing clinical education in both countries.

A key takeaway (paraphrasing Weisellberg, I hope accurately): By contrast to our colleagues in Japan, we in the U.S. are fortunate to have the experience of decades of clinical education, a large cohort of capable clinical educators and much more support in key sectors of legal education and the bar.

The movement toward professional education in Japan a decade ago was predicated on admitting significantly more graduates to the bar and other changes that have not materialized, resulting in grave structural challenges for the future of professional legal education in Japan.

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After the J.D. Update at AALS

Posted on January 10, 2014 by dmaranville

Another positive note:   One of the AALS Annual Meeting Hot Topic/Bridge Program sessions – After the JD: A Look at the Evolving Careers of Lawyers Who Entered Practice in 2000  discussed the new (3rd?) round of results from the American Bar Foundation’s important longitudinal study.   I was only able to pop in for a few minutes, but was heartened to hear that the overall news is encouraging, including for graduates of lower tier law school on both employment and salary fronts, despite significant concerns around the progress of minority lawyers. Even Bill Henderson said something like “Gee, maybe things really aren’t so bleak.” Chime in with details if you were able to attend the entire program!

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Ellmann Responds to Brian Leiter

Posted on January 7, 2014 by Mary A. Lynch

Ellmann Responds to Brian Leiter

 

 

Brian Leiter has asked for coments on Steve Ellman’s thoughtful analysis of the ABA proposal to require 15 credits of experiential learning.    Brian is against,  Steve is for!

 

 

 

 

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Building on Best Practices in Legal Education

Posted on January 6, 2014 by dmaranville

On a more cheery note:

Regular reader of this blog know that a follow-up volume to Best Practices in Legal Education is underway.  That volume, due out in 2015, is titled Building on Best Practices.  It’s a big, collaborative effort with 4 co-editors (I’m one, along with Antoinette Sedillo Lopez, Lisa Bliss, and Carrie Kaas) and over 30 authors, supported by almost as many readers of sections or chapters.

We held informal workshop sessions on five excellent section drafts during the AALS conference — 1 via Skype due to the weather.   Discussion was lively, intense, and productive as participants struggled with the challenge of distinguishing among good, better and best practices.  And being reminded that sometimes just having a practice is a best practice!

A huge shout out to the authors:

Benjamin Madison and Natt Gant (Fostering professional identity)

Paula Shaefer (Incorporating professionalism in doctrinal courses )

Eliza Vorenberg, Eden Harrington,  Betsy Kane, Trish Keady, Sue Shechter, David Udall, and Gloria Valencia-Weber (The role of pro bono )

Barbara Glesner-Fines (Assessment of students)

Marty Katz and Ken Margolis (Administrative Issues & Incentives)

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The Role of Tenure: The Virginia Experience

Posted on January 6, 2014 by dmaranville

The AALS Presidential Workshop on Tomorrow’s Law Schools included a session on effective participation in faculty governance.  Much of the discussion centered around the summer 2012 kerfluffle in which the governing board of the Univ. of Virginia abruptly ousted University President Teresa Sullivan — and then rehired her after the faculty protested en masse.  Prof. George Cohen (chair of the faculty senate at the time, I gathered, having missed the introductions) acknowledged the importance of tenure in giving the university’s faculty the courage to speak up. He noted that lacking tenure the university’s administrators felt unable to do so.  I was struck by the importance of tenure to the privileged faculty at an elite university in such a situation.  Reinforces the impact of the stories from less privileged and more vulnerable faculty relayed in yesterday’s post by Mary Lynch from testimony presented on proposed changes to accreditation standard.

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Ideas on Improving and Reforming the Profession

Posted on January 6, 2014 by Margaret Moore Jackson

 

Class discussion of the incredible unmet need for legal representation in this country can be furthered by yesterday’s article by Adam Liptak, Need-Blind Justice. In it, he outlines two ongoing efforts to move beyond mere critique of the legal representation guaranteed to indigent criminal defendants: in Washington, federal judicial supervision of what appointed defense lawyers must do to meet a minimum standard of client representation; in Texas, a “voucher” system that gives criminal defendants a choice of lawyer.

Radical? Workable? I guess we’ll have to see as things progress, but it is exciting to hear about actions, even if experimental, that could move beyond the standard tautology – that the unmet legal needs of lower- and middle-income persons are impossible to solve because there isn’t enough money.

Could the second initiative perhaps fuel a similar experiment in vouchers for the provision of civil legal services?

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Quite Moving but Frightening Testimony at AALS Conference

Posted on January 5, 2014 by Mary A. Lynch

I write from the Hilton Hotel in New York City where the American Association of Law School annual conference has just ended.   The most memorable and riveting session I attended was the ABA panel presentation on proposed revisions to accreditation standards,   I knew full well that this would be an intense session and blogged about the dangers of these proposed revisions earlier in the year  here. .  The proposed revisions will change dramatically what I consider an essential facet of legal education:   the ability to acknowledge, discuss, debate, theorize,and write about  issues that are unpopular.  It will also prevent law faculty from teaching about and working with students representing clients on issues which are unpopular.   I knew this discussion would be intense but I was not prepared for  the stories of our brave peers in the academy which reinforced for me the fundamental importance of academic freedom supported by tenure or security of position.

One professor who self-identified as a female American who is Muslim reported  that she received death threats at work for appearing at a Department of Justice panel on National Security and Muslim issues.   She noted that without tenure and academic freedom, she would be at risk for firing for doing no more than accurately describing the national security legal issues.  She also eloquently explained that as a young, female professor of Muslim religious and cultural identity, she was vulnerable for receiving student pushback and bias for her assuming the position of power and authority over students.  Without academic freedom secured by tenure,  she would fear student bias in evaluations or impressions which could threaten her job security because of her Muslim identity.   A white woman who  taught at a religious school in the deep south,  movingly described her experiences. Without academic freedom supported by tenure, she found that  just raising legitimate legal issues and cases regarding property, same sex marriage, second amendment law, domestic violence or other issues could put her at risk of losing her job.  Had she not been supported by a tenure system which requires “cause” not popularity as measured by teaching evaluations or other factors, her personal and financial incentive would encourage her to avoid  teaching  important legal questions  for fear of back”pushback” .  Professor Terry Smith of Depaul College of Law presented remarks on behalf of the minority law professors section whose members attended in great numbers.  I share with you  his statement here (ABA Statement 1 4 13 ) Another member of the minority law professors section, Professor Anthony Farley,  cautioned that these issues are not “speculative” and spoke about ongoing attacks on academic  freedom, faculty governance, tenure and security of position at a particular school.  Other faculty members discussed how its hard to teach constitutional law in this country without mentioning race but that faculty who do not have security of position will find it difficult because when race is mentioned in a classroom, faculty inevitably suffer in teaching evaluations by students who are uncomfortable talking about race.

Professor Kate Kruse, past president of the Clinical Legal Education Section  noted that for many clinicians academic freedom has only been made real by the current ABA  standard 405 (c) and the  proposed revisions make no attempt to provide a “safe harbor” for the majority of clinicians and legal writing professors who also need to enjoy academic freedom.  There was some discussion by panelists and audience members about an earlier proposal which would have eliminated the hierarchical status types among faculty and questions about why that proposal was never presented for notice and comment.  See earlier blog discussion of the proposals. Past President of the AALS Clinical Section and Fordham Law’s Professor Elizabeth Cooper noted how tenured clinicians are  often asked by untenured  clinical colleagues to make points at public meetings that they are unable to make for fear of impact on their continued employment.

Members of the panel thanked those who testified for good reminders about the negative and practical consequences of these revisions. The Chair of the Council on Legal Education, attended and wanted the audience members to know that he had listened carefully to the concerns.  Past President of the AALS, Professor Leo Martinez and panel members urged  all interested parties to submit written  comments about this controversial proposed revisions on the ABA website found here.

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Thoughts on Reading Mary’s Post about Declining Law School Enrollments

Posted on January 4, 2014 by Nancy Cook

 

Recently, Mary Lynch posted excerpts from ABA commentary on the decline of law school applications. A serious problem in academia, fueled by, it appears from the evidence reviewed by the ABA, a shocking downturn in the number of jobs for lawyers. Even before the economic downturn, of course, there were warnings about the glut of law school graduates, especially in large urban areas.

There are equally stunning – no, far more dramatic – numbers coming out of other corners. The numbers to which I refer are those illuminating the extent to which there are unmet legal needs in this country. Certainly, there is a crisis in legal representation for low income people; estimates out of many states suggest about 80% of the legal assistance needs of the poor go unmet. The demand in domestic cases, family court, immigration matters, housing court, consumer cases, and criminal matters, just to name a few areas, far exceeds the response. Nor is it just the poor whose need for services remains unmet. Middle classers caught up in employment disputes, getting divorces, trying to set up and manage small businesses, faced with consumer problems, unclear about how to handle insurance, taxes, wills, and loans, often are unable to access lawyers at an affordable rate.

 

And still the picture is not complete.  Many of the studies of unmet legal needs focus on “litigants,” thus limiting the roles of lawyers to negotiators and courtroom advocates. But in all manner of contexts – in management systems, nonprofits, agencies, schools and churches and hospitals, in the media, on boards and in centers – wherever problems are simmering and problem-solving is called for, there is likely to be a benefit from service by a legally-trained mind.

 

These are not separate, disconnected issues, are they? The benefits of legal education are many, the need for lawyers is great. We know the law schools and the ABA have a responsibility for leadership in correcting the imbalances of too much need, too few “jobs,” too few applicants, too much tuition, too many agendas, too disjointed a vision. Our concern for our own livelihoods in academia dovetails with the concerns of ordinary people about negotiating laws and legal terrain. Maybe 2014 will bring some epiphanies on how to problem-solve these things together.

 

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