Fostering Student Success: Part I Challenges Posed by Changing Times and Changing Culture

The opinions expressed within this article are the personal opinions of the author.

By Sara J. Berman, Director of Academic and Bar Success Programs at the AccessLex Institute’s Center for Legal Education Excellence; SSRN author page https://ssrn.com/author=2846291

Law school culture is shifting; the days of the hundred percent final exam are giving way to a culture that emphasizes routine midterms, quizzes, polling, and other formative assessment.  This is in part because of ABA requirements under Standard 314[1] and in part because of the now ample evidence that wise feedback helps law students succeed.[2], [3], [4]  

The shift toward integration of more thoughtful feedback into the curriculum dovetails with a movement of many of today’s leading legal educators to encourage growth mindsets.[5] But voices urging adoption of such positive mindsets ring hollow when set into a greater legal education backdrop that still too often fosters a fixed mindset.  Students who “get it” right away are handsomely rewarded, with the most prestigious jobs,[6] law review, and other opportunities. Those who persevere and overcome struggles are barely acknowledged or, more often, stigmatized because of their early low performance –some never regaining full confidence, even if they later dramatically improve. 

Empirical studies confirm that 1L GPA often correlates with bar passage.[7] Acknowledging high performers is appropriate, even laudable; but should we continue to perpetuate a zero-sum environment where initially-lower performers are not encouraged to improve in consistent and meaningful ways? Are we even aware of the extent to which our system expressly and impliedly communicates to certain students that they are “fated” to fail?  Let’s become collectively more aware and pilot studies to determine whether different faculty and institutional responses to 1L grades might alter what appears to be a “failure trajectory” for lower-performing students. Let’s find ways to truly encourage grit, rather than just giving it lip service all the while rewarding only those who catch on most quickly.  Let’s create a system that “normalizes struggle,” as Professor Christopher argues,[8] and celebrates learning from early mistakes. 

Much learning occurs after 1L. We must study how much more learning might take place if we rewarded, valued, and encouraged law students who engage in continuous improvement and, by graduation, become far more skilled, experienced, and knowledgeable than their first-year grades would indicate. This is not to suggest an “A for effort” or “everyone gets a trophy.” Rather, this is a call for pilot programs and careful study of how initially-lower-performing law students would fare (on the bar exam and in practice) if given true and un-stigmatized opportunities to improve, and be rewarded for improving, during law school.  Such opportunities may come in the form of the suggestions noted in Part II of this post, and by seeding the law school curriculum with formative assessment and thoughtful feedback.

Employers will surely still find ways to determine which graduates are the best fits for which jobs. In the meantime, we are wasting precious resources trying to get lower-performing students to thrive in cultures that do not encourage them to do the extra work required to outperform their early indicators.  Let’s at least study how bar passage (not to mention, job satisfaction and dedicated commitment to using the rule of law to make the world a better place) might improve if law school culture stressed deep, slow, and steady learning, and truly rewarded persistence, resilience, and continuous improvement.

Part II of this post explores some of the many possibilities for “simple” changes that might help advance the ongoing culture shift toward a true growth mindset.  Stay tuned!


[1] Section of Legal Educ. and Admissions to the Bar, Am. Bar Ass’n, ABA Standards and Rules of Procedure for Approval of Law Schools § 314 (2019),https://www.americanbar.org/content/dam/aba/publications/misc/legal_education/Standards/2017-2018ABAStandardsforApprovalofLawSchools/2017_2018_standards_chapter3.authcheckdam.pdf.

[2] Paula J. Manning, Understanding the Impact of Inadequate Feedback: A Means to Reduce Law Student Psychological Distress, Increase Motivation, and Improve Learning Outcomes, 43 Cumb. L. Rev. 225 (2012).

[3] Daniel Schwarcz & Dion Farganis, The Impact of Individualized Feedback on Law Student Performance, 67 J. Legal Educ. 139 (2017).

[4] Carol Springer Sargent & Andrea A. Curcio, Empirical Evidence That Formative Assessments Improve Final Exams, 61 J. Legal Educ. 379, 405 (2012).

[5] The concept of a growth mindset was developed by psychologist Carol Dweck and popularized in her book, Mindset: The New Psychology of Success (2006); see also Sarah J. Adams-Schoen, Of Old Dogs and New Tricks—Can Law Schools Really Fix Students’ Fixed Mindsets?, 19 Legal Writing: J. Legal Writing Inst. 3, 48 (2014); Kaci Bishop, Framing Failure in the Legal Classroom: Techniques for Encouraging Growth and Resilience, 70 Ark. L. Rev. 959, 1006 (2018); Eduardo Briceño & Dawn Young, A Growth Mindset for Law School Success Before the Bar Blog (September 12, 2017); Olympia Duhart, Growing Grit in the LRW Classroom: Practices that Promote Passion and Perseverance (2019) (on file with the author).

[6] See Roger C. Cramton, The Current State of the Law Curriculum, 32 J. Legal Educ. 321, 335 (1982) (arguing that “[f]irst-year grades control the distribution of goodies: honors, law review, job placement, and, because of the importance placed on these matters by the law school culture, even the student’s sense of personal worth.”)

[7] Amy Farley et al., Law Student Success and Supports: Examining Bar Passage and Factors That Contribute to Student Performance (2018) (on file with the author).

[8] Catherine Martin Christopher’s recent article, Normalizing Struggle, Ark. L. Rev. (forthcoming 2019) provides many possibilities for precisely these different sorts of responses and actions.

The Baby Has Finally Been Birthed!

Comprehensive revisions passed

The ABA House of Delegates passed the comprehensve revisions with “minimal  fuss” according to the ABA Journal linked  above.  One area, however, garnered  significant attention and also resulted in  an odd, though perhaps meaningless ,  procedural move.  The House voted  to send back to the Section on Legal Education for further consideration the comment to standard 305 which prohibits payment to students for credit-based courses.

What does this mean? Law schools which have not already done so must start identifying, articulating publicly and assessing student learning out outcomes, providing every student six  credits of clinic or clinic-like experiential courses and requiring students to take two credit hours worth of professional responsibility coursework.

Well, it’s a start……

Law School Hybrid

December 18, 2013
By: Carl Straumsheim

William Mitchell College of Law has received approval from the American Bar Association to launch a part-time J.D. program that blends face-to-face instruction with online courses. Although the hybrid program marks the first of its kind, experts are split on whether it marks an experiment or a turning point for how legal education is delivered in the U.S.

The four-year part-time program, meant for students whose location or work commitments prevent them for pursuing a legal education full-time, will mix recorded lectures and quizzes with video conferences and online discussion forums when it launches in January 2015. Students will also be required to complete externships and attend weeklong on-campus simulations at the end of each semester to practice their legal skills. Mitchell’s Board of Trustees approved the program Tuesday night.

“Our message is that this is not an online J.D. degree,” said Eric S. Janus, president and dean of the college. “This is a J.D. degree that has very substantial and rigorous face-to-face components that I think are going to be designed in a unique way to help people become more prepared to practice law.”

Online education and accreditation from the American Bar Association rarely mix. Although fully online law programs exist without ABA approval, institutions that seek accreditation need to tailor their programs to a set of standards that have been in effect since 2002. The program itself needs to consist of at least 83 credits — Mitchell’s hybrid program clears that hurdle exactly — but no more than 12 can be granted from pure distance education. Of the remaining credits, one-third of the coursework can also be completed remotely. As an added twist, programs can offer only four credits of distance learning per semester.

Barry Currier, managing director of the ABA’s legal education section, said the four-credits-per-semester rule may have discouraged law schools from experimenting with hybrid programs. He also pointed out that few law schools seem to be aware of or interested in developing programs that take advantage of those regulations.

“Maybe they think their students won’t like it?” said Currier, previously dean of the online Concord Law School of Kaplan University, which after clashing with the ABA decided not to seek its approval. “Maybe they think employers won’t be interested in students that went to a school that was one-third blended?”

For many law schools, the requirements regulating distance education have been been viewed as “insurmountable,” said Simon Canick, associate dean of information resources at Mitchell. “I think a lot of law schools also use the existing ABA standards as a reason to not push the envelope,” he added.

To receive approval for its hybrid program, Mitchell submitted a variance request that exempts the program from the requirements — under certain conditions. The college must enroll no more than 96 students per year, assess the program on an annual basis and report its findings to the ABA. The college also had to waive its right to confidentiality to help other law schools learn from its experiences.

“I see this as a first step for the ABA to be welcoming of innovation,” Janus said.

Variance requests represent another untapped opportunity for law schools to experiment with new forms of legal education, Currier said. “The ABA has not gone around and said ‘Oh please, please, please submit a variance request,’ ” he said. “It is not the case that there are dozens of requests for variances about distance learning that have been turned down. Maybe the perception is they would have been turned down.”

If the experiments prove successful, however, they could guide the ABA to revise its own standards, Currier said.

The approval of the hybrid J.D. program can also be seen as the ABA responding to those who have called for law school reform — a group that includes President Obama, a graduate of Harvard Law School. The ABA last year launched a Task Force on the Future of Legal Education, which concluded the organization’s own policies was stymieing innovation.

“The current procedures under which schools can seek to vary from ABA Standards in order to pursue experiments are narrow and confidential,” the task force reported in September.

Mitchell submitted its variance request in July, and Canick said the college benefited from the timing of the task force’s report.

“I think the ABA faces some significant pressure externally to innovate and allow innovation,” Canick said. “Here comes this proposal that’s really good. I think they were eager to show they were going to embrace innovation.”

Mitchell, an independent law school located on one block in the residential Summit Hill neighborhood of St. Paul, Minn., may not seem like a hotbed of legal education reform. Like many law schools, the college has seen its enrollment shrink over the past few years. About 240 students enrolled this fall, down from about 260 the year before and about 300 two years ago.

“We’re doing fine, comparatively speaking,” Janus said. “I do think that part of the message is that law schools have to add value, and the programs they offer need to be meaningful and accessible to the people who want to study law. This is not a response to declining enrollment.”

The online option instead represents a third track and a nod to the college’s history, Janus said. Mitchell was founded in 1900 as St. Paul College of Law, a night school catering to the same type of students who would consider an online education. The college added a full-time option in the ’70s.

Aside from the mode of delivery, the three tracks are fairly similar. Applicants for the hybrid program won’t see more lenient admissions requirements or tuition savings, for example. “We understand that the blended learning is not for everybody, but it will meet — we think — the needs of a group of people,” Janus said.

The law school has for years offered about a dozen blended and online courses, and plans for a fully hybrid J.D. program have been in the works since 2009. Currier said the the decision to approve the request was a result of the strength of Mitchell’s application, not external pressure.

“What the council saw was that this was a school that has a long history of part-time legal education and a long history of serving students who are a little more nontraditional in terms of age and working experience than many law schools,” Currier said. “I think it’s safe to say something like this has never been approved before.”

Read more: http://www.insidehighered.com/news/2013/12/18/american-bar-association-approves-experimental-hybrid-jd-program#ixzz2nryuK8wt
Inside Higher Ed

A Rise in Alternative Careers Is Changing Legal Education

By Jill Backer Contact All Articles
New York Law Journal
October 28, 2013

In April of this year, Kaplan Test Prep did a survey of 200 pre-law students. Fifty percent of those students stated that they do not intend to use their future law degree in a traditional legal field. If this statistic extrapolates out to the larger law student population, we have a generation of law students of which only half will ever be practicing lawyers. So if half of law students do not intend on ever practicing law in a traditional way at a traditional firm—what is their intention? The answer is as varied and individualized as our law student population. The answer is also forcing a revitalization of legal education and at no time has legal education ever been accused of changing too quickly.

I often hear the term “alternative legal careers” being thrown around but I am not sure that this has ever been readily defined. Does it mean people who have not passed the bar? Or those in compliance positions, entry-level solo practitioners, or even legal educators? Or those who don’t work at a law firm? The answer to these questions and other questions is yes.

There is a lot of chatter about the definition and assessment of the jobs law students obtain after graduation. Back in 2011, the ABA, in conjunction with NALP, came up with the category of “J.D. advantage” to describe jobs that specifically do not require bar passage but do utilize skills learned in law school. The employers might have preferred candidates with a J.D. (or even required a J.D.), and the job is one in which the J.D. provided a demonstrable advantage to obtaining and/or performing the job. Interest in these jobs skyrocketed as the market fell, with more and more students seeking the J.D.-preferred positions when there were many less traditional positions available. In fact, in 2011, one in every seven jobs taken by new law graduates fell into the J.D. advantage category. (NALP Bulletin, May 2013).

In my opinion, the category and even the term “J.D. advantage” is a bunch of rubbish. Graduates in J.D. advantage jobs are sometimes every bit of lawyers as their brethren at firms and other traditional jobs. Today, lots of associate work and especially first-year associate work can rarely be achieved only by a barred attorney. I believe the legal community and its governing body the ABA are finally just coming to the recognition of what we already know—the J.D. is an agile and flexible tool that can be utilized in many forums.

Let’s face it, the opportunities on the traditional path for new law graduates are shrinking. Therefore, all professional opportunities can and should be defined under “working” and not put under some other nomenclature of J.D. advantage. There are few professional pursuits that would not value the analytical thinking and knowledge of the law and ethics that law school offers. This new category describing any deviation from the traditional path is not required and seems to paint in broad strokes a picture of these jobs as “lesser.” Jobs outside law firm associate positions are in no way less, and in some cases can offer much more.

Here in Brooklyn, there is a hub of a new technology age guided by entrepreneurial spirit and innovation. If a new graduate were to join a start-up business at a local incubator, is that a J.D.-preferred job? After all, while the graduate may not be doing legal work day-to-day, you can be sure that their legal education will be of huge use and influence in the new venture. In fact, you can bet that contracts and other issues involving the law would find their way to the law graduate’s desk rather than another employee. How do we say this is not a law job but a J.D. advantage, or perhaps because the employer did not specify—not even J.D. advantage.

Compliance is another area where the J.D. advantage term is overused. As recently as 10 years ago compliance positions were considered quasi-legal jobs. However, as regulation became more intricate, more and more J.D.s were hired into these roles at all levels. Today, most new hires in the compliance world are J.D.s. In fact, this is a huge and lucrative area of growth for the law profession. However, under the ABA rules, these are J.D. advantage jobs rather than legal jobs.

So here is what we know—there are fewer jobs in traditional legal roles for entry-level attorneys. New graduates are seeking out different opportunities due to fewer traditional positions and a real desire to practice/work in non-traditional forums. The ABA has decided to define any job without a traditional title—associate, staff attorney, assistant D.A., etc.—as something other than a lawyer. So where do we go from here? We need to change legal education and the ABA to fit the new reality.

Law schools have already begun a huge era of revitalization of legal education—some might say an overhaul. Some of these changes are meant to streamline legal education, others to provide more practical training. However, there is another factor that is changing law school: teaching to and preparing the ever-growing population of graduates that do not wish to practice in a traditional forum. Brooklyn Law School teaches a business boot camp and has a clinic that incubates new businesses in all facets, not just legal. There are other law schools that have language classes and compliance courses that are not rooted in the law.

These types of endeavors will help entering law students navigate the business world while utilizing their legal education. This string of classes shows a new multidisciplinary approach in legal education. The more well-rounded student is coveted by traditional and alternative employers alike. The old yard-stick used to measure future success was academic prowess. That is slowly changing as employers of all ilks realize that they need to incorporate softer skills and business skills as well as legal skills to keep their organizations afloat. Being a knowledgeable and ethical attorney is no longer enough to satisfy today’s legal market.

We are facing a turning point in the legal market. Law students are not focused on the same goals as a generation ago, as evidenced by the Kaplan survey cited at the beginning of this article. They are seeking out a new type of legal career that is not rooted in the traditional ways and definitions of law practice. The institutions of the legal market need to accept and understand that one way of using a law degree is no less than another. Law schools have to prepare these students as well as they do those engaged in the more traditional practices. Thankfully, law schools seem to be rising to that challenge.

Jill Backer is associate director for employer relations at Brooklyn Law School.

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