Measuring What Lawyers Do?

Posted on February 13, 2012 by Kevin Ramakrishna

Paul Lippe wrote an article on Legal Rebels about valuing a lawyer’s work entitled “What if Someone Could Measure What Lawyers Do?”

Here is a preview of the article:

Let’s begin by stipulating that within the mix of legal services, some are harder to measure than others. But even so, most legal services are far more measurable than most practitioners would recognize, and most attempts to measure quality, even if imperfect, will improve performance. The assertion that you can never reduce costs without hurting quality is clearly false, and undermines the credibility of the profession. Most of the sensible things that we can do to reduce costs will improve quality as well.

In other credence-good fields, such as medicine and academia, there have been systematic attempts over the last 30 years to begin to measure performance. Medicine is more advanced, and the model most of us know is the 73 year-old standard for Food and Drug Administration approval of the safety, efficacy and cost-effectiveness of drugs, based on the scientific method. For its part, academia has been as resistant to change as law, and the result has been the emergence of U.S. News rankings as a very flawed but pervasive way of comparing universities.

Give it a read and tell us what you think!

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The Future of Education: Lessons Learned from Video Games and Museum Exhibits

Posted on February 6, 2012 by Howard Katz

Here’s an interesting take on education from Don Norman. He is an academic in the field of cognitive science, design and usability engineering, and the author of several books, including The Design of Everyday Things. This address was to graduates of a School of Education and Social Policy, but includes some ideas that may provoke thought in law schools as well.

The Future of Education: Lessons Learned from Video Games and Museum Exhibits

Don Norman

COMMENCEMENT ADDRESS, NORTHWESTERN UNIVERSITY SCHOOL OF EDUCATION AND SOCIAL POLICY: June 2001

You chose a great year to graduate. Education is in the news The President of the United States is for it. The House & Senate just passed new education bills.

Education is hot in business as well. The rise of corporate universities is well established, with companies literally spending billions of dollars to educate their employees. Education is now a business, with multiple companies offering courses and degrees as a successful, profit-making business.

Of course, one of the problems when everyone is for something is that everyone has a different idea of what it is that they are for. Everyone who is for education seems to have a different idea of what to do, hence the challenge. The one thing everyone agrees upon is that our educational system is in trouble. Something has to be done to fix it. But what?

To me, anything that is truly worthwhile is something that is also a major challenge. If you were facing an easy task, why bother? So it’s a great year to be graduating, for anything truly worthwhile, anything that will make a difference, not just to you, but to many, is going to be hard. This is a great year, for there are great challenges ahead of you.

Education Throughout Life

We will solve the fundamental problems only through social policy, through organizational change, and through deep understanding of organizations and the people who comprise and are served by them. We need to change the way we think about education, and through that understanding, change the way we do it.

One erroneous notion is that education only takes place in the classroom, mostly through books and lectures. The basic recipe for education of a nation is very simple:

Take young children:

* Open up the tops of their heads
* Pour in all the information they are ever going to need to know to get along with life
* Continue as long as possible — for 12 to 20 years

Now let them loose upon society, to spend the next 60 – 80 years as productive citizens, never having to be educated again.

A very simple scheme, practiced by nations throughout the world. Simple, and simple-minded.

This standard practice is wrong for lots of reasons. It concentrates all the learning into one period, when the students are not interested, when they don’t care, when they are not ready. It assumes that what is learned today will be available when needed, many years later. And it ignores the powerful social impact of groups, social discussion, and cooperation.

Most of our lives is spent interacting with others. Most of our work is done jointly. In the workplace, we are encouraged to ask others for help. When we do not know the answer to something, we are free to ask for help, to form groups.

Indeed, one of the few places where solitary work is required is in the classroom.

Informal Learning

Informal learning, that’s what we call the learning that takes place out of school. I just spent a day at the Science Museum in London where the staff prided themselves on the social interaction among the museum goers. To me, the most fascinating exhibit was a simple quiz game.

People sat around a circular table, each seat having a button to push, and a dish-size disk they could spin. A computer projector was directly overhead, projecting an image on the table, displaying the game and, on top of each dish and button, whatever meaning it was meant to have at that moment.

So, not only was the technological wonderful — interacting with a computer without being stuck in front of a big screen, keyboard, and mouse, but the game was fascinating.

The table image explained some new technological concept, say the ability to embed chips in children, so that satellite systems could track them and parents would always know where their kids were. The fun began with the quiz: Is this a good idea? Should parents be allowed to do this? Would kids allow it?

You spun the plate to select the answer you wanted to give, then pushed the button. But the clever part was that everyone could see everyone else’s answer, so that the participants would start discussing the issues with one another, sometimes friends against friends, sometimes one group of strangers with another, sometimes parents with their children. (Footnote: Link to London Science Museum website.)

(My photograph of the game at the London Science Museum, taken June, 2001. Only 2 people playing [my photography got in the way]. Click hereor on the picture to see a larger image. The projector is above, pointing down at the table [and not visible in this picture]. The game has 8 playing positions: Note “turn” instructions centered over the rotating dish.)

So, here is a simple game, motivating, interesting. It imparts some real knowledge, and afterwards, the participants can discuss and debate it.

It uses high-technology, but intelligently. It doesn’t flaunt the technology — in fact, participants don’t think of it as technology, they think of it as fun, a quiz where they learn, that they enjoy, and that they recommend to their friends. Notice too that the procedure exploits social interaction. There you go: exams that teach, technology that is hidden, exploiting social interaction and discussion.

ESPN Zone

Look at another form of informal learning: Video games. The other day I visited the ESPN Zone on Ohio St. in Chicago. Now that’s an interesting place — I commend it to you. Filled with machines, filled with games, filled with people — of all ages. It’s all voluntary. In fact, people pay a lot of money to participate. Imagine — paying money to learn! They are engaged, intense, involved. They are performing, playing, competing. And most of all they are learning.

Children, we are told, have short attention spans, caused, of course, by the prevalence of games and TV and commercials in our society.

Nonsense.

Watch people at video games. You can’t tear them away. More importantly, they truly are exercising their minds. They problem-solve. They take notes, read books of hints and strategy. They save the game state, try out a new course of action, and if it doesn’t work, return to the saved game state. And they form social communities, sharing hints, tips, and methods. Many of you will understand, for you do it too.

Video games aren’t restricted to children. Today, the average age of a game player is pretty much the average age of the population, and women play almost as often as men. Different games, perhaps, but games nonetheless.

The only problem with games is that the skills are either for make-believe worlds, often violent, or for sports: skate boarding, skiing, tennis, baseball, football, motorcycling. Nothing wrong with sports, and as the games get better and better, controlled by real skateboards, motorcycles, and so on, they can be quite effective at teaching the skills required to do the real thing. The military uses games in real training, as does the aviation industry, except they don’t call them games, they call them “simulators.” One person’s simulator is another person’s game. The important point is that they teach: effectively, efficiently, and well. And students enjoy them.

“But,” you may be saying, “that’s all very well for simple things, or for sports, but what about for learning the really hard stuff, subjects that take time to master and that are more abstract, such as writing, literature, history, or math?” I believe the same principles apply to almost any topic. Obviously one game does not fit all people or all topics. But any time you get this amount of interest, this amount of sustained, concentrated attention, it is worthy of study. Actually, there already are a number of examples of games that help teach literature or arithmetic, city planning or evolution, history or geography. We need a lot more sustained research and development of these ideas (and note that development is always more expensive and, in some ways much more difficult, than research).

We, as a nation, don’t spend anywhere near the amount on education that we spend on games. And we don’t get the same kind of energy, of commitment, and of excitement that we find on the game field.

The Lessons from Science Museums and Computer Games

Museums and video arcades exploit similar themes: meaningful activities, learning that takes place invisibly, not as the objective, but naturally, effectively. Exploiting social interaction and discussion. Participants don’t think of themselves as interacting with technology, they think they are doing something interesting: discussing an interesting topic, playing basketball, riding a jet-ski, skateboarding. They exploit social interaction and cooperation. The result is high intense concentration, true learning, with people anxious to go back and do it again, paying for it out of their own money.

People learn many things, if only they care about the topic. People are hungry for learning, as long as it isn’t called education. Hence book groups, discussion groups, and clubs of all sorts.

The future of education is outside of education. It is in the everyday life. In business, in the world. In life long learning. But the principles can be applied inside of formal education as well. They require a change in thinking, to move toward problem-centered, meaningful activities in the classroom. To exploit people’s interests and subvert them to lead to natural, inspired learning activities. To exploit group interactions and social themes. To change teachers into guides and mentors. And to recognize that education should take place over a lifetime, not just in the formal classrooms of the first few decades of life.

You already know all that, right? That’s exactly what you have just been taught. The hard part is making it happen, and that’s where you will need all the skills you have learned: social change, social policy, human psychology, and human development. It is not going to be easy.

Wonderful! Nothing like important challenges to get you going, eh?

A GREAT YEAR TO GRADUATE

Change is never easy. It will take a long time. People are very slow to adopt change, especially in things they consider fundamental to their lives. Studies of the adoption of new technologies and procedures show them to take decades to be adopted, whether it be a new consumer technology, a new type of seed or fertilizer. Adopting new methods of education will be even more difficult, even slower to be adopted. But even educational systems change eventually.

One way that the personal computer got into the workplace — over the objections of the information technology groups in companies — was because people used computers in the classroom or at home, discovered how valuable they were, and then sneaked them into corporations.

Why not the same thing in education?

You are graduating from a very unique school. At first glance, it brings together a strange mix of disciplines: education, social policy, organizational change, human development, and several areas of applied psychology. It is a strange mix, but, in fact, it is exactly right, for these areas are all inextricably mixed in the real world of business, education, and everyday life. Real issues never exist in a vacuum. They live in the world of policy, of social practices, of organizations, and of people. If one is to make any progress at all in these matters, one must combine these very disciplines, plus perhaps even a few others, such as technology and business. It is no accident that your faculty have appointments in computer science and close ties to the business school.

The academic education is only the first step toward change: the further steps are up to you. You are the agents of change. You can indeed help make the world a better place, a more intelligent, social place.

It is not going to be easy. It is going to be hard work. And it will take time. It will be a challenge.

So hurry up and start: the sooner you start, the sooner we will get there. And you can literally save the country, save the world.

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Assessment Tales: The Bluebooks That Stayed

Posted on January 17, 2012 by glesnerfinesb

It’s that time of year when we all have the grading of our last semester’s bluebooks well behind us and the last few students have come in to review their exams. So we have packed up the bluebooks to be archived and they are out of sight and out of mind.

But wait! In the world of assessment, the bluebooks come back! These papers and exams have a wealth of assessment information for us to mine if we only take the time to gather, reflect and use that information.

How can you use your bluebooks for efficient assessment and improvement of student learning?

Many faculty gather holistic impressions as they grade about the performance of the students overall and the areas of difficulty and strength. To improve on this reflective process, faculty can take a few more simple steps:

1. Improve your data collection.

Rather than gathering general impressions as we grade bluebooks, we can mine the bluebooks for some more concrete data. Examine the distribution of performance on individual questions or issues. Note that you need not gather every data point possible from the bluebooks. Often it is helpful to begin with two or three items to analyze. For example, what is the one thing that nearly every student did well on the exam? What were the one or two questions/issues/approaches that many students had problems on? What percentage of the students had these problems?

2. Analyze your data.

For issues students appear to have learned well, look again at your questions. How confident are you that the question truly tested the student understanding? In this respect, essay questions are often easier to evaluate than multiple choice questions, because you can see the students reasoning on the former, whereas consistently correct answers on the latter can be the result of distractors that are patently wrong. What materials and techniques did you use to prepare the students for that question? When during the semester did you teach those matters? If the student performance is improved from prior exam administrations, what, if anything, did you change that may have caused this improved learning?

For issues or questions on which a significant percentage of student performance was deficient, again, begin by reexamining the question, its placement in the examination and the time allocated for responses, to identify other possible reasons for poor performance that are less related to student learning and more related to exam conditions. Look for patterns in the student errors or misconceptions that can help you diagnose what learning conditions led to the student poor performance. What materials and methods did you use to teach this doctrine?

3. Plan for the next class

When students are performing well on a doctrine or concept, especially when that competent performance appears to have been the result of your prior efforts to target and improve learning activities for that material, you may be tempted to rest on your (and your students’) laurels. However, consider that any change to one part of a course can affect other parts and each class brings with it different experiences and preparation.

To improve student learning on areas that have presented difficulties for students, consider not only improving teaching materials or methods related to that area, but also incorporate more formative assessments during the term to help you and the students identify earlier and more clearly the learning deficiencies.

4. What my bluebooks told me this semester:

To illustrate this process of mining bluebooks for assessment, I will discuss this semester’s Professional Responsibility exam. From this semester’s bluebooks, I gathered a range of data on materials well understood and poorly understood. I will share three examples of data to illustrate the process of using bluebooks for an assessment process.

The doctrinal winner this year in terms of student performance was multijurisdictional practice of law. Is this because the students understood these aspects of the course better than others? Reviewing the exam, I noticed that the question testing this subject called for a fairly low level of mastery (basic issue spotting and knowledge of rule) without any sophisticated analysis required. This was a topic for which I had provided a number of practice problems to the students and I had tested the issue in a similar fashion on a prior year’s exam, which I had made available for student review. Moreover, it is a subject that, because my law school is located on a state line, with dramatically different variations on this rule, the students understood that this was a rule that would impact their immediate future, as they chose which state bar exam to take first. What I learned from this is the fairly unremarkable understanding that my law students can and will master at a knowledge-level those topics for which they know they will be tested and for which they also have a more personal motivation to learn well. I concluded that I would and could generalize these understandings to not only raise the bar on testing this doctrine, requiring a more sophisticated understanding, but also would look for other areas in which I could improve student motivation by identifying the specific need-to-know circumstances looming in their immediate future for other rules.

A second topic about which I have been tracking student learning performance for many semesters is the student understanding of the distinction between the evidentiary attorney-client privilege and the ethical duty of confidentiality (among other doctrine). When I first began tracking, as many as 30% of students were demonstrating fundamental confusion on this topic – using language of “privilege” when the subject was confidentiality (or vice versa) or confusing the exceptions to the ethical duty with the crime-fraud exception to privilege. I knew from speaking with other Professional Responsibility teachers that this is a common area of confusion for students. Over the course of several semesters, I worked to improve student learning in this area: including more problems in course materials, writing and assigning a CALI lesson on the subject, and explicitly telling the students that this is something that I am tracking and cheering them on to “make this the 100% mastery year.” The efforts are bearing fruit. This semester was the best yet – only four out of 72 students used the vocabulary of the two doctrines improperly and three of these applied the correct rule even though they were not using the correct terminology in doing so.

An area on which I had thought I was making progress in student learning turned out to be a continuing problem. Students commonly are confused by the rule governing an attorney’s right to withdraw from representation. I have made the same efforts on this doctrine as I have with the privilege v. confidentiality confusions: increasing problems, providing additional outside resources (again, I wrote a CALI lesson on the subject); and providing in-class quizzes to assess understandings while there was still time to improve learning. However, I was puzzled to see 13 of the students declare that an attorney may not withdraw from representation if it would harm the client. What could have been the source of this confusion? Searching through my course materials and lesson plans, I uncovered the problem. A powerpoint lecture on withdrawal from representation when the client fails to pay the attorney contained a page with a bulletpoint list of reasons that courts might deny an attorney permission to withdraw even though the rules would permit the withdrawal. One of the bullet points listed “degree of harm to the client” as a factor the court would consider. Obviously some students had transferred the powerpoint slide into their notes on the general withdrawal rule rather than recognize that these factors were connected only to the judicial discretion to deny an otherwise permissible withdrawal. Again, a well-worn lesson learned anew: as helpful as powerpoint slides can be for organizing discussions and providing visual cues for learning, students will study text of these slides as definitive statements of law rather thumbnails of larger discussions and understandings. Conclusion: no shortcut summary slides!

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The High Cost of Legal Education–alternative educational models

Posted on January 17, 2012 by Antoinette Sedillo Lopez

The Wall Street Journal published an op-ed entitled “First Thing We Do, Let’s Kill All the Law Schools,”  Their idea is to teach law in undergraduate school.  This is very much like the system in Mexico and many other countries. Interestingly, they suggest an apprenticeship to enhance the theoritical knowlege.  What do you think? 

 The link is here.

 By JOHN O. MCGINNIS

AND RUSSELL D. MANGAS

Over three years, tuition at a law school can exceed $150,000. Even this princely sum does not capture the full cost. During the time spent at these schools, most students could have earned substantial income. A recent analysis by Herwig Schlunk of Vanderbilt University suggests that for bright students with attractive career opportunities, the total cost of law school is closer to $275,000.

The high cost of graduate legal education limits the supply of lawyers and leads to higher legal fees. And higher fees place legal services out of the reach of middle-income families at a time when increasing complexity demands more access to these services. In short, the current system leaves citizens underserved and young lawyers indebted.

Some have argued that to reduce costs states should simply drop their educational requirements, policing lawyer quality through bar exams, if at all. But the requirement of a legal education can serve important public needs.

First, most citizens, particularly the less educated, do not know much about law and have difficulty evaluating the skill of individual lawyers. Some education in law makes it more likely that a lawyer will be competent. Second, educated lawyers provide a public good. In the United States, most important political questions become legal questions. Educated lawyers can supply a deeper social understanding that informs political policy-making.

 

Here is a straightforward solution: States should permit undergraduate colleges to offer majors in law that will entitle graduates to take the bar exam. If they want to add a practical requirement, states could also ask graduates to serve one-year apprenticeships before becoming eligible for admission to the bar.

An undergraduate legal degree could be readily designed. A student could devote half of his course work to the major, which would allow him to approximate two years of legal study. There is substantial agreement in the profession that two years are enough to understand the essentials of the law—both the basics of our ancient common law and the innovations of our modern world. A one-year apprenticeship after graduation would allow young lawyers to replace the superfluous third year of law school with practical training.

This option would reduce the law school tuition to zero. And the three years of students going without income would be replaced by a year of paid apprenticeship and two years earning a living as a lawyer.

The idea of learning law as an undergraduate discipline is hardly untested. Great Britain, for instance, educates lawyers in college, not graduate school. These college-educated lawyers appear to provide legal services on par with those of their American colleagues.

In addition to reducing the cost of training a lawyer, an undergraduate law degree could facilitate innovation in legal teaching. Because an undergraduate major would be situated within a college of arts and sciences, it would be easier to provide an interdisciplinary education, mixing elements of social science and humanities with legal doctrine.

Law demands fluency in many such disciplines. For instance, the merits of a mass torts case may turn on statistical inferences. Students could integrate relevant courses in statistics, economics and psychology into their undergraduate program rather than trying to catch up in law school. Thus, an undergraduate legal education has the potential to produce better rounded, more capable lawyers.

Of course, encouraging colleges to offer undergraduate legal education would not prohibit law schools from continuing to offer the current, three-year J.D. program. The maturity and career change that this graduate option would provide would continue to benefit some students.

Further, the undergraduate option would improve graduate education by forcing law schools to justify their cost by offering additional benefits. LLM programs—which result in a master’s degree—would also become more robust, as undergraduate-educated lawyers can earlier gain practical experience to better decide what specialty course to pursue.

Overall, by increasing competition, an undergraduate law degree would increase diversity and quality in legal education.

But the great benefit of the undergraduate option would be lowering the cost of legal education, thus increasing the supply of lawyers willing to charge lower fees. Lower fees mean broader access for middle- and lower-income Americans. Ultimately, law exists to serve the public.

Legal education needs to provide more diverse options to assure a more diverse bar and a better-served public.

Mr. McGinnis is a professor of law at Northwestern University and Mr.

Mangas is an attorney at Kirkland & Ellis in Chicago.

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The True Function of Education

Posted on January 16, 2012 by Mary A. Lynch

“The function of education is to teach one to think intensively and to think critically. Intelligence plus character – that is the goal of true education.” – Martin Luther King Jr.

Happy Martin Luther King Day!

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New Requirements for Bar Exam Stress Clinical Education

Posted on January 14, 2012 by Mary A. Lynch

In a press release issued on January 12th, 2012, the New York State Board of Law Examiners announced

[T]he amendment of the Court’s educational requirements for U.S.-educated graduates of ABA-accredited law schools to sit for the New York State bar examination. After consulting with law school administrators and representatives of the State bar and reviewing the current American Bar Association Standards for Approval of Law Schools (ABA Standards), the State Board of Law Examiners proposed changes to the rules which have been approved by the Court of Appeals.

The rule changes can be viewed here.

Among the changes for the 2012-2013 school year are:

  • Increase in maximum clinical hours, field placement and externships from 20 to 30
  • Increase in number of hours required to graduate from 80 to 83
  • Requiring professional responsibility

The New York Law Journal published a story on the new rules today featuring a quote from Connie Mayer, the Interim President and Dean at Albany Law School. In the article she supported the changes, but she would have gone further stating: “‘My view is there should be some requirement that a law student should meet with an actual client,’ she said. ‘I don’t know how you graduate from law school and never actually see a potential client.'”

The changes were made partially in response to the report from the New York State Bar Association Task Force on the Future of the Legal Profession. The Task Force has been discussed before on Best Practices. The view of the Task Force has been that students need to have practice at dealing with clients and learning practical skills so that they know how to handle complex client problems and have exposure to the ethical dilemmas that arise every day in law.

While this movement is in the right direction, the fact is New York’s rules were more restrictive than almost all other states on how it “counted” clinical courses. The real issue for New York as identified by the NYSBA Taskforce is the nature and content of its Bar Exam. The current structure of the NYS Bar Examination not only affects the cost and content of legal education at NY law schools but also has a discriminatory effect on the success of diverse law graduates. The NYSBA Committee on Legal Education and Admission to the Bar is currently reviewing proposals to offer alternatives or modifications to the current exam. Stay tuned to see what happens. That would be change to crow about!

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Unaccredited Law School Sues ABA

Posted on January 3, 2012 by Irene Scharf

The following article, Unaccredited Law School Sparks Debate With Lawsuit Against Bar Association by Katherine Mangan, comes to us from the Chronicle of Higher Education.

The argument is that the ABA and accredited schools are using their market dominance to prevent new schools from gaining accreditation. Here is an excerpt:

A Tennessee law school’s lawsuit against the American Bar Association has sparked considerable discussion in legal-education circles about the ABA’s gatekeeper role in approving new schools.

Lincoln Memorial University’s Duncan School of Law filed its complaint against the ABA in federal court on December 22, just days after learning that the association’s accrediting arm had denied its bid for provisional accreditation.

Duncan, which opened in 2009 with the goal of helping students and potential clients in Appalachia, contends that the ABA is unfairly limiting competition by excluding new schools that want to offer a relatively affordable option for underrepresented students.

But others, including some Congressional critics, say the ABA hasn’t been tough enough in enforcing its standards, allowing too many new schools to open at a time when students’ job prospects are shrinking.

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Does the Practice of Counseling Students out of Clinic make a Statement about the place of Clinical Education in the Academy?

Posted on December 31, 2011 by Irene Scharf

I think it does.

In my experience, it is unusual for a professor or dean to encourage a student to forego taking or to drop a so-called stand up or doctrinal class, particularly if it’s required. The opposite situation prevails in clinics, which presently are rarely required; in these classes, the pressure to maintain in clinic a student having grave difficulties is substantially reduced for both student and teacher. That clinics are rarely required means, of course, that they are largely relegated to “elective” status and thereby on a lower hierarchical plane than other, required doctrinal courses. This fact conspires to permit us, professors teaching these clinical courses, to fall prey to viewing them as “less-than” the classes taught along the Langdellian model.

What might be the implications of this observation? At least it would seem that we clinical professors could try to appreciate the significance of what we do and of what we’re imparting in our students. This appreciation will encourage us to encourage our students not to give up if and when “the going gets tough” in the course of handling difficult cases and challenging clients. In addition, this observation can serve as another call, heard frequently these days if not at law faculty meetings at least in the mainstream press, that clinical education be part of the required law school curriculum.

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To Counsel or Not to Counsel Students OUT of Clinics?

Posted on December 28, 2011 by Irene Scharf
In our quest to offer and provide as many students as possible the opportunity to participate in clinics while in law school, the notion that a clinical experience is not  appropriate for certain students is not likely to be a popular one. Nonetheless, I imagine I’m not the only clinical professor who has faced this possibility with one or more students.  Under what circumstances should a clinician suggest to a student that the clinical setting may not be the best expenditure of a student’s effort at a particular point in time?  And in these situations, may there be ways in which a student can successfully be maintained in the clinic by reimagining his/her role in it?  Finally, is there something unique about clinics that should enable clinic faculty to even consider such a suggestion?  Or is the notion that it may occasionally be appropriate to counsel students out of participating in a clinic just another indicator that clinical legal education remains marginalized, given that it’s the rare associate dean who  sanctions students to abandon key “doctrinal” classes?

The likelihood of the issue arising increases greatly in a full-year clinic, and in one that accepts second year students, which I teach.  In a one semester clinic, work is usually winding down before it would become clear that a student might need to reconsider the experience. Some second year students have not yet assimilated enough of the ‘zeitgeist’ of lawyering to be able to see the whole picture or theory of a case.

What are some indicators that might suggest to a clinical professor undertake such a delicate conversation?  The most important I’ve come across is a student’s noted and ongoing inability to grasp the relevance of key legal principles to a client’s case. It’s usually not an inability to conduct factual research.  I’ve noticed a problem assimilating the disparate parts of the case into its whole. But in many of these cases, there may be ways of salvaging the situation and maintaining the student in the program. I’ve had success when I’ve refocused the student’s case responsibilities towards more fact-finding.  This serves both the case and the student’s need to be productive and gain confidence.

In a subsequent post I’ll discuss whether the notion of counseling students to withdraw from clinics suggests that clinics remain a marginalized department in law schools and whether  clinicians should resist pressure to advise students to do this.

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Best Practices Goes International

Posted on December 20, 2011 by Robert Dinerstein

It is only a few days before Christmas–and, as I write this, the first night of Channukah–but my thoughts turn not  to the holidays but rather to Best Practices.  As David Segal continues to write his maddening articles in the NYT on legal education–the most recent, this past Sunday, on how ABA accreditation causes law schools to be overly costly and cookie-cutter in form and content–it is well to recall the basic underpinnings of the CLEA Best Practices book, and its focus on thoughtful curricular planning and learning outcomes.  Excessive student debt, less-than-full transparency in law school statistics and practices,  and a failure to focus on preparing students to practice law are valid criticisms, and Segal is right to make them, but we all know there is more to legal education than the narrow consumerist focus that Segal (who also writes the consumer complaint-oriented The Haggler column in the Times’s Sunday Business Section ) brings to bear.

I will have more to say about those specific questions in a subsequent post, but for now I wanted to mention that Best Practices has spread its wings and reached China.  There is a now an authorized Chinese version of the book (alas, I can’t attest from personal knowledge to the accuracy of the translation, as my Mandarin consists of only a few words) that has been produced in conjunction with some ongoing workshops on clinical education in China in which US law professors from University of Pacific-McGeorge School of Law and American University Washington College of Law have been involved for the last 4-5 years.  In its current focus, Brian Landsberg and Dorothy Landsberg (director of clinical programs) at McGeorge are spearheading an effort by Chinese legal educators to develop a version of Best Practices that will work in the Chinese legal (and legal educational) context.  I went with Brian and Dorothy to Beijing in September to assist the group with organizing the project, and Brian and Dorothy will be returning there in January to provide feedback on the draft chapters. (Frank Bloch has been working with the group on a related project, and my colleague Elliott Milstein has been deeply involved with the China project from the beginning; other McGeorge, WCL and other faculty have been involved as well.)

As others who have done international clinical work can attest, the translation, literally and figuratively, of clinical concepts  (including those in Best Practices) to other legal systems can be quite challenging.  During the first workshop in 2006, for example, several of our Chinese colleagues resisted our efforts to articulate a client-centered approach to lawyering, stating that such an approach could not work in China.  When we pressed our colleagues on this point, they said that in China if the lawyer deferred to the client (as they understood client-centeredness to require) clients would importune their lawyers to engage in illegal actions.  We had not emphasized in our discussion of the concept of client-centeredness that it assumed that the client’s means and ends were legal and legitimate within the system. Absent that qualification, our colleagues heard our discussion of the concept as promoting lawlessnesss (ironic in a program sponsored by the US AID Rule of Law Project).  With the clarification, our colleagues thought that such an approach could work, though, as we all agreed, the nature of the counseling relationship and the choices actually available to clients and lawyers might well look different from how they would look in the U.S.

We had other moments of language and cultural miscommunication.  For example, it took us some time to realize that our use of the term “advocacy”–meant to convey trial-related skills of direct and cross-examination, among other things–was confusing to our Chinese colleagues since the term was translated as “criminal defense.”  Because we came to know our colleagues well–the first three years of the project consisted of three-week workshops in China, and some of the first group of attendees became co-teachers in our subsequent trainings–we were able to figure out which concepts traveled well and which did not.  The result, we hope, will be the development of a distinctively Chinese form of clinical legal education whose value, we hope, will stand the test of time.

In the workshop this fall, we did come upon one other language/conceptual roadblock, which is relevant to Best Practices. The Chinese group was concerned about use of the term “Best Practices.”  Our Chinese colleagues thought that if they entitled their book “Best Practices” it would create problems for them, because the implication would be that if anyone did not adopt their approach they would by definition be doing something that was less than the best.  The implied criticism of others would be too sharp, in their eyes, and would inevitably lead to hurt feelings and perhaps more.

 

Note that this criticism was not the same as that which my AU colleague Ira Robbins had leveled against CLEA’s Best Practices project (to which Roy Stuckey responded in a colloquy published in the Clinical Law Review)–that we were wrong to call our book Best Practices because we could not prove the practices we advocated were the best, as opposed to, say, good or recommended practices.  Indeed, the Chinese critique presumed that use of Best Practices did in fact mean that they would be saying that they were proposing what was best, and that others would react negatively to this assertion.

Indeed, before we arrived in Beijing in September we had thought there might be some concern with the term Best Practices, and had proposed the term “Effective Practices”  as one that might be less controversial.  That approach seemed to resonate with our Chinese colleagues in September, though it remains to be seen what title the group will adopt for the final product.   It could be argued that “Effective Practices” implies that those who do not adopt the suggested approach are promulgating Ineffective Practices, which would be just as much of a an apparent dismissal as not using what some thought was the best approach. But I suppose that since the book is not entitled “The Most Effective” practices, the term “Effective Practices” may seem to suggest a wider range of potentially acceptable approaches.

 

Of course, the term Best Practices as we use it in the CLEA book, and as many in the US have used it in different contexts (especially in social sciences or in regulatory environments) doesn’t really mean “best” in the sense of provably better than everything else.  (I disagree with Prof. Robbins’s assumption to the contrary.) Rather, the term is meant to suggest something like “here is our best thinking, at this time, about the particular matter.”  It is more than what might be minimally required, and, indeed, it is not required at all, but rather exists as a source of information and guidance that people may find useful and therefore may choose to adopt for their own purposes.

In the final analysis, the linguistic vagaries of the term Best Practices are less interesting than the recognition that thoughtful legal educators in China, and perhaps elsewhere around the world, may come to realize the value of the concepts articulated in the CLEA Best Practices book.  If the book generates dialogue and self-conscious examination of our pedagogical goals, it will have gone a long way toward achieving the goals that many of us have had for this project.

 

–Bob Dinerstein

December 20, 2011

 

 

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Connecting the Dots in Legal Education

Posted on December 15, 2011 by Mary A. Lynch

The New York Times has a new opinion on educating law students, this time from Stanley Fish from Yale.  His opinion focuses on the art of law and states that the study of legal scholarship in his course gives students an understanding of what is at stake in a legal proceeding, and provides a basic understanding of the “game”.  Once the game is understood, a practitioner can then learn the tactics outside the school over the course of a career.  One important quote from his opinion reads:

That is, law is more than an aggregation of discrete tactics and procedures; it is an enterprise informed by a vision of how the state can and cannot employ the legalized violence of which it is the sole proprietor. That vision will come into view in the wake of a set of inquiries. What obligations do citizens owe one another? How far can the state go in enforcing those obligations? What restrictions on what the state can do to (and for) its citizens should be in place? How do legal cultures differ with respect to these issues?

I agree with Professor Fish. Theorizing about the practice of law and the jurisprudence of law is important to a full understanding of what it means to be a lawyer.  In order for students to understand “the game,” however, requires students to connect the theory to the practice. That is exactly what reflective clinical experiences during  law school should do and are doing.

Clinics were not started to help student learn the tricks of corporate law, or make partners more profitable.  Making students “client ready” – a favorite term of Albany’s Interim Dean Connie Mayer – can involve making them think about John Locke’s theory of the “social contract” or about Dickensian notions of the “worthy poor”. 

It has never been “either/or,”  For a time, theory and doctrine was so privileged in legal education that acquiring excellence in the profession was trivialized instead of appreciated. By bringing legal education back in balance, we will not abandon the kind of engaging, reflective thinking which good teachers, good clinical experiences and Stanley Fish offers. 

As Tiny Tim reminded us, “God Bless us Everyone!”

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Harvard Law’s Curricular Reform: 3 Years In

Posted on December 8, 2011 by Howard Katz

This was recently posted on PrawfsBlog by Glen Cohen.

Several years ago, under the stewardship of then-dean Kagan and then-professor-now-dean Minow, Harvard Law School made a significant change to its first year curriculum. Different portions were phased in at different times, but this will be the third full year of it all being in place, so I thought it would be a good opportunity to discuss the reforms. Unlike the Langdellian Socratic method that was also started at Harvard, I have seen less copying of our reforms. That may be that others do not think it a good idea, but I suspect it is more to do with the fact that this was a resource intensive change (adding an additional 21 professors needed to teach 1Ls) that was implemented at a moment where most schools are facing economic woes.

Here is the reform in a nutshell:

The typical Harvard 1st year courses (Civ Pro, Contracts, Torts, Property, Criminal Law) were all dropped from 5 credit hours a week to 4 credit hours.  An additional 4-credit class entitled “Legislation and Regulation,” which largely combines a course in legislation/statutory interpretation with parts of administrative law was added.  In addition, a 4-credit international/comparative law elective was required and added to the first year curriculum. Students choose from a menu of seven classes for 1Ls with foci such as private international, public international law, international humanitarian law, an comparative law (China, for example).  Last, and most recently, we moved our finals into the fall and now give the 1Ls a winter (or J-) term class called “Problem Solving Workshop,” which is taught intensively over 13 week days. Each day the students are given a problem, and in small groups have a day or two to solve it and submit work product as a group. While some of the problems are focused on litigation, others are things like dealing with public relations and media, negotiating, and other skills. The next day the students re-assemble, debrief and consider how different groups dealt with the problem, and start a new problem. The course is pass/fail. Once in the middle of the class and once at the end the students meet with practicing lawyers to test their proposed solutions against the practical realities as the lawyers see it.

Students also take a regular elective in the spring.

Here is my internal sense of how these have been received, but one reason why I want to post about it is to get feedback from those of you in the world out there who have seen our students under the new curriculum and their performance.

Click here for the rest of the article.

Filed under: Best Practices & Curriculum, Best Practices for Institutional Effectiveness, Best Practices, Outcomes & Assessment Techniques, First Year Law School Innovations, Related Blogs | Comments Off on Harvard Law’s Curricular Reform: 3 Years In

New Article: Alternative Justifications for Academic Support II: How ‘Academic Support Across the Curriculum’ Helps Meet the Goals of the Carnegie Report and Best Practices

Posted on December 6, 2011 by Kevin Ramakrishna

Professor Louis N. Schulz, Jr. from New England Law School recently posted an article entitled Alternative Justifications for Academic Support II: How ‘Academic Support Across the Curriculum’ Helps Meet the Goals of the Carnegie Report and Best Practices, Capital University Law Review, Vol. 40, 2011. Here is the abstract:

In the wake of two momentous critiques of legal education, popularly known as the “Carnegie Report” and “Best Practices,” law schools are reconsidering certain basic assumptions about how we educate future lawyers. Even the most forward-thinking reformers, however, struggle with the details of how to implement many of the recommendations of those reports. Providing more formative assessment, for instance, is a laudable objective but one that has serious ramifications in terms of resource expenditures. This article seeks to provide a remedy for many of these struggles: “Academic Support Across the Curriculum.” This piece argues that the reconceptualization of an under-leveraged asset in many law schools, Academic Support Programs (ASPs), can help provide crucial improvements in legal education. By examining the reforms urged by the Carnegie Report and Best Practices, and by detailing the methods of certain exemplary ASPs throughout the country, this piece analyzes how ASPs just might be the answer to many tough questions.

Give it a read and tell us what you think!

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Innovations in the First Year: Outcomes, Assessments and Collaboration, Oh My!

Posted on November 30, 2011 by Carolyn Grose

In December 2010, the faculty of William Mitchell College of Law approved a pilot curriculum for one section of the first-year class to run in 2011-2012.  The Deans also created a Pilot Assessment Committee, whose task would be to monitor and evaluate implementation of the pilot curriculum.  I am the chair of that committee.

The goals of the first-year pilot section were the following: (i) to define outcomes for each first-year course and for the first-year curriculum as a whole; (ii) to introduce students to a range of critical doctrinal foundations, including transactional, statutory, constitutional, and administrative law; (iii) to integrate core skills, doctrine, and professionalism in each first-year course; (iv) to achieve greater coordination among the doctrinal courses; (v) to achieve greater coordination and integration between the doctrinal courses and the first year research and writing course; (vi) to foster better communication and collaboration among first-year professors; (vii) to enhance communication with students regarding course goals and expected competencies at the end of the first year; and (viii) to concentrate course hours for each class to allow for more intensive, sustained study of each doctrinal area.

The Pilot curriculum has the following course structure for full-time students:
Fall Semester

1. The Common Law Process 4 credits
2. Civil Dispute Resolution 4 credits
3. Statutory Interpretation: Criminal Law 3 credits
4. Writing/Representation: Advice & Persuasion 3 credit

Spring Semester

1. Transactional Law: Contracts 4 credits
2. Jurisprudential and Comparative Analysis: Property 4 credits
3. Advanced Legal Reasoning: Liberties 3 credits
4. Writing/Representation: Advice & Persuasion 3 credit

All faculty teaching in this section has engaged in collaboration to develop “core” objectives for all first-year classes: each class combines “skills” and “doctrinal” objectives. In addition, faculty have collaborated to develop varied and multiple formative assessments; and a common vocabulary to help students in the section realize the connections between different classes. The section faculty has worked hard to emphasize professionalism in the first year.

Members of the Pilot Assessment committee have met with and gathered information from students, faculty, administrators, and staff about the new curriculum.  Based on information we have gathered over the course of the first semester and plan to gather over the first four weeks of the second semester, as well as our understanding of adult learning theory both in law schools, and in other graduate areas, we believe the following:

  1. The emphasis on statutory interpretation helps student learning in all courses;
  2. The introduction of alternative dispute resolution in the first-year better frames the students’ legal education;
  3. Students learn best by the combination of exposure to skills and doctrine in each class. 
  4. The common framework and vocabulary for all classes increases transference of student learning among first year courses, and into upper level courses and experiences

In other words, the pilot curriculum seems to be on track to achieve many, if not all of the goals of the program.

Concerns remain about doctrinal coverage and academic freedom should the pilot curriculum be implemented across the entire first year, so no formal decision has been made yet about how to proceed with this project.  There is a great deal of enthusiasm and momentum, however, and we look forward to seeing the project through and continuing to explore its implementation on a larger scale.

Stay tuned . . .

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New York Times Editorial: Legal Education Reform

Posted on November 26, 2011 by Kevin Ramakrishna

This was brought to my attention by Professor Irene Scharf, a frequent author on this blog.

The New York Times has an editorial yesterday on Legal Education Reform. It also appears in the paper on page A16. Here is a piece:

Addressing these issues requires changing legal education and how the profession sees its responsibility to serve the public interest as well as clients. Some schools are moving in promising directions. The majority are still stuck in an outdated instructional and business model.

Give it a read and tell us what you think!

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