New York Proposes “Experiential Learning Requirements” as Condition of Licensure: CLEA and NYS Bar Committee Respond

Readers of this blog and followers of the NCBE’s expansion remember  that this past Spring New York became the 16th state  to  adopt the Uniform Bar Examination (UBE), changing  its longstanding bar admission requirements.  Many voices opposed adoption including the New York State Bar Association (NYSBA) (see Committee on Legal Education and Admission to the Bar (CLEAB) report 10-29-2014  and vote of House of Delegates), the Clinical Legal Education Association (CLEA) and the Society for American Law Teachers (SALT).  Despite these and other  opposition voices, the proposal was adopted with the new changes going into effect for the July 2016 bar examination.

During discussion of the adoption of the UBE, the Court was encouraged  to include clinical or experiential  requirements for licensing so that lawyers admitted to the New York Bar would be ahead of the curve — a position I firmly support.   On the opposite coast, California had been engaged in a multi-year process examining licensure and profession readiness which resulted in a proposal requiring 15 credits of experiential learning before admission.  In response to the movement to incorporate experiential learning in bar admission,  the New York State Court of Appeals formed a Task Force on Experiential Learning and Admission to the Bar.  Just last month, that Taskforce requested comments on its proposal that

New York adopt a new mechanism for ensuring that all applicants for admission to the bar possess the requisite skills and are familiar with the professional values for effective, ethical and responsible practice. In light of New York’s diverse applicant pool, and in an effort to accommodate the varying educational backgrounds of applicants, the Task Force suggests five separate paths by which applicants for admission can demonstrate that they have satisfied the skills competency requirement.

The New York Law Journal examined the proposal in an article found here.   In addition, the Honorable Judge Jenny Rivera, chair of the Taskforce attended a meeting of NYSBA’s Committee on Legal Education and Admission to the Bar (CLEAB) to explain the proposal and answer questions.

It is heartening that the Court is concerned about and wants to  require the development of essential lawyering skills and professional values acquisition. However, without more, Pathway 1 of the current proposal will not actually ensure  that applicants to the bar experience the kind of skill development and value formation that the Taskforce desires.  Pathway 1, referencing new ABA standards,  requires schools to confirm that they have published  their “plan for incorporating into their curriculum the skills and professional values that,  in the school’s judgment,  are required for its graduates’ basic competence and ethical participation in the legal profession.” It also requires law schools to certify  that law graduate applicants for admission “have sufficient competency in those skills and sufficient familiarity with those values” which are publicly available on the law school’s website.  Although Judge Rivera believes that the certification process described in Pathway 1 can have some real bite, as pointed out in comments submitted by the Clinical Legal Education Association (11.9. 15 CLEA SUBMISSION ON EXPERIENTIAL REQUIREMENT ), Pathway 1 simply mirrors the experiential training requirements already mandated by the American Bar Association.     

New York’s  law school deans, not unexpectedly,  submitted comments supporting the “flexibility” of Pathway 1.  The  CLEAB report to the Experiential Taskforce expressed concern that without additional content to Pathway 1 “little will be accomplished” by the proposal.   And as one member of the NYS bar committee  argued, “what law school is going to admit that one of its graduates did not acquire the skills or  values promised on its website?”

In my opinion, the most important concern is whether applicants to the bar have ever represented or interacted with a client, or operated as a lawyer, in a live setting under guided, experienced supervision before admission.  In its comment to the Taskforce, CLEA urges that a “three- credit clinical training requirement” be added for all J. D. applicants to the New York Bar.  This makes sense.  Law school clinics and faculty-supervised externships are designed to create the very kind of skill development and value acquisition with which the Court is concerned.  And clinical faculty have developed the formative assessment tools to maximize skill and professional identity formation.

I am hopeful that, in its next iteration of the proposal, the Taskforce will heed CLEA and CLEAB’s comments and come back with recommendations that will ensure applicants for the bar are ready to engage in competent, ethical and professional representation of New York’s citizenry, corporations, and notforprofits.

 

 

 

 

Teaching Legal Reasoning More Efficiently?

Teaching the traditional analytical skills more efficiently and effectively could provide a much needed opening for broadening the range of skills taught to all law students. In the legal academy’s version of the “socratic method”, law teachers historically taught the analytical skills” implicitly”. They demonstrated legal reasoning by pushing students away from their raw intuitions of fairness and justice to articulate rules and exceptions, while attending carefully to the inevitable ambiguities of language.

Some law teachers suggest that the process of learning to “think like a lawyer” fundamentally requires time and practice and therefore cannot be significantly speeded up.

Yet the implicit approach has been repeatedly challenged by scholars seeking to teach legal reasoning more explicitly, by naming and explaining how it works.*  (An obsession with the goal of teaching legal reasoning more efficiently was a major thread in two phases of my own legal career when I taught first year civil procedure. I struggled both to teach skills more explicitly and to provide students with opportunities to practice them.)

A recent contribution to this quest by my colleague Jane Winn grows out of her experiment teaching common law legal reasoning to undergraduates. Students were randomly assigned to use either a well-regarded study aid, or Winn’s own materials. The materials were also leavened by her own and colleagues’ experiences teaching foreign LL.M. and J.D. students coming from legal systems growing out of the European continental legal tradition.

Winn’s effort, aimed at law students, is notable in three respects. First, at twenty-nine pages it fills an intermediate-length niche: longer than a typical class “handout’, but shorter than the various book length alternatives. Second, it covers case briefing, outlining and exam questions, demonstrating how the three are related. Third, it grew out of an attempt to test her teaching method empirically using random assignment to a control group. Both law students and legal educators should find it a useful contribution.

The 2015 ABA accreditation standards may provide a laboratory in which to test efforts such as Winn’s. Standard 302 now requires law schools to adopt learning outcomes that, under subsection (b), must include legal analysis and reading; Standard 314 requires law schools to provide students with both formative assessment (feedback) and summative assessments (final “grades”); under Standard 315 law schools must engage in “ongoing evaluation of the program of education, learning outcomes, and assessment methods”. At its best this combination of more intentionally articulated outcomes, feedback to students, and program evaluation could prompt law schools to evaluate the potential for greater efficiency and effectiveness in teaching legal reasoning. I remain hopeful that enough schools will approach this task rigorously and in good faith that at least some progress can be made.

*Winn’s illustrious predecessors include:

  • Leading Legal Realist Karl Llewelyn, whose The Bramble Bush: Classic Lectures on Law and Law School have been assigned to generations of law students;
  • University of Chicago Professor and President and U.S. Attorney General Edward H. Levi, author of An Introduction to Legal Reasoning, originally published in the University of Chicago Law Review and then in book form;
  • Critical Theorist and Harvard Professor Duncan Kennedy, who took the decidedly un-Harvard step of visiting at New England School of Law in his attempt to reach beyond elite students and sharpen his skill at teaching students about the “gaps, conflicts and ambiguities” that underlie the development of the common law. He shared his insights widely with former students moving into teaching careers. produced a short volume
  • My former colleagues Pierre Schlag and David Skover, who produced a short volume early in their careers that catalogued the Tactics of Legal Reasoning (1985).
  • Richard Michael Fischl and Jeremy Paul, Getting to Maybe: How to Excel on Law School Exams (1999)
  • Leading clinical teachers Albert J. Moore and David Binder, Demystifying The First Year of Law School: A Guide to the 1L Experience (2009)

In recent decades much of the heavy lifting in legal reasoning has devolved upon teachers of legal analysis, research and writing. Among the results is a burgeoning literature proposing variations on the syllogistic Issue-Rule-Analysis (or Application)-Conclusion approach to analyzing and writing about legal problems, as well as a variety of textbooks.

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Legal Education & Civility in the Legal Profession

A recurrent theme in current critiques of legal education is the need to develop lawyers with interpersonal, intrapersonal, and leadership knowledge, skills and values, as well as the traditional analytical skills and doctrinal knowledge. (A significant portion of Chapter 6, Teaching the Newly Essential Knowledge, Skills, and Values in a Changing World in the recent volume Building on Best Practices: Transforming Education in a Changing World (Lexis 2015) is devoted to the what and how of teaching such topics.)

Opportunities to reflect on this theme abounded in early October, when I had the privilege of attending the Civility Promise Continuing Legal Education seminar in Sovana, a small hill town in southern Tuscany, Italy. Sponsored by Seattle University Law School. and Robert’s Fund, the seminar brought together fifteen attorney participants from diverse practice backgrounds. They included a retired corporate attorney and managing partner of what is now a leading global law firm, a retired trial court judge, and lawyers with criminal or civil litigation, or transactional practices in both private and government settings.

Conceived by Paula Lustbader, teacher extraordinaire and emeritus professor of law at Seattle U. in collaboration with Italian artist Sergio Tamassia, the seminar was co-taught by two exceptionally skilled presenters: Tim Jaasko-Fisher, Senior Director of Curriculum and Programming for Robert’s Fund, formerly Assistant Attorney General and then Director of the University of Washington Law School Court Improvement Training Academy, and Craig Sims, Chief of the Criminal Division of the Seattle City Attorney’s Office.

The seminar identifies three pillars of civility: consciousness, community, and creativity. After fostering each pillar within the group in a brilliantly executed mix of didactic, reflective, and creativity-facilitating teaching methods, participants are challenged to take their learning into the profession.

Each participant was drawn to the seminar for their own personal reasons and several shared compelling experiences — the opposing counsel whose business model was the shake down, the ultimately unsuccessful malpractice suit based on the theory that an attorney approaching a case with a collaborative mindset violated her duty to her client, the former colleague who cracked under pressure and – the ultimate case of incivility — murdered his opposing counsel. And all bemoaned the all-too-common misconception that the adversary system is about behaving uncivilly, rather than developing and presenting the most compelling arguments on the merits.

Concerns over incivility have led some jurisdictions to adopt mandatory civility codes and help inspire the burgeoning mindfulness movement. Like the profession, many law schools are pursuing mindfulness for multiple reasons, including encouraging civility. Whether these efforts will be sufficient to effect widespread change in individual attorney behavior and the culture of the legal profession remains to be seen. But the Civility Promise seminar provided both incentive and tools for change. We can also hope that it will inspire similar efforts in legal education.

Unmasking Assumptions about Employment Outcomes and Legal Education

In an upcoming Wisconsin Law Review article, Robert Kuehn, Associate Dean for Clinical Education and Professor of Law at the Washington University Law School, presents a cogent, well-supported and thoughtful article describing the limitations of and lessons we can learn from the existing empirical analysis correlating student enrollment in clinical education and employment outcomes.  Kuehn’s article, entitled Measuring Legal Education’s Employment Outcomes is particularly powerful because it provides a thorough empirical rejection of the claim that clinical coursework might actually harm employment outcomes, as asserted by Professor Jason Yackee and which attracted some sound-bite attention earlier this year. In what is, perhaps,  an unexpected twist, Kuehn demonstrates that using Yackee’s statistical assumptions and methodology also would produce negative correlations for those students who participate on law journals or in moot court competitions.  Kuehn argues that one can’t draw any reliable conclusion from Yackee’s 2013 model, and perhaps not from any nationwide statistical model – as opposed to a particularized analysis of one school –  on the likely effect of clinical courses (or other activities like law journal or moot court) on employment, and surely not the negative effect Yackee posits. Kuehn points out that as to clinical coursework, the available evidence (through surveys) indicates that such experiences do aid some students in securing employment.

If you, like me, still become a bit nervous about how much you actually remember from undergraduate statistics courses, do not be alarmed by this post!  You will find Kuehn’s article accessible and a quick good read, even when he is using words like “regression analysis,” “granular data” and “variable choices.”   Here are the points made in Measuring Legal Education’s Employment Outcomes which I found most helpful:

  1. Kuehn’s reminder that when one confuses correlationwith causation one is bound to come up with a “misdiagnosis.” One problem with Yackee’s analysis is the lack of granular data to calculate the true employment rate for those who took a clinic (or who did not).  In fact, the data is so poor that “the results never account for more than half of the variability in employment across schools.”
  2. Kuehn’s explanation of the “confounding effect of prestige” and bar passage on employment outcomes.
  3. The problems of validity and reliability raised by analyses which employ information from ABA questionnaires, particularly those self-reports submitted prior to 2014.
  4. The fact that “13% of law schools” provide 80% of the school-funded jobs to law graduates. Not surprisingly, Kuehn found this factor biases many results if you examine nationwide statistics. And when Kuehn removes those jobs from the statistical analysis, Yackee’s correlation with clinical education falls apart even using his own assumptions and methodology.
  5. Yackee’s model yields completely different results if one uses the US News Lawyers/judges data versus academic peer data to control for the possible influence of perceived prestige.
  6. Application of Yackee’s model to “Law Journals” and “Skills Competition” and S. Newssub-groups also show no relationship to employment outcomes!
  7. In Yackee’s model, a better ranking is “strongly associated with improved employment outcomes.” However, Kuehn points out that a “closer examination of the relationship between rank and employment indicates that this positive association, although statistically significant when applied across the entire range of top 100 schools, does not hold true for schools ranked 51 through 100 (emphasis added).” 
  8. Kuehn’s documentation of employers who require, “strongly prefer” or identify law clinic experience as a positive factor in hiring such as The U.S. Department of Homeland, legal services and  legal aid offices, district attorney, public defender, fellowships and private law firms.
  9. Kuehn’s description of National Association of Law Placement (NALP) existing information: such as the  2011 survey of lawyers with non-profit and government offices;  the NALP survey of lawyers in firms of predominantly more than 100 attorneys; the NALP survey of public interest legal employers;  and the NALP 2013 presentation on the employment market reporting that ” law firms say they want new graduates to have ‘more experiential learning, client-based and simulation.”
  10. Kuehn provision of good information on other employer information such as the Lexis-Nexis WHITE PAPER: HIRING PARTNERS REVEAL NEW ATTORNEY READINESS FOR REAL WORLD PRACTICEProfessor Neil Hamilton’s employer survey to determine the relative importance of twenty-one different competencies in employer hiring decisions, and Professor Susan Wawrose’s legal employer focus groups which found employers prefer new hires with ” well developed professional or ‘soft skills” along with “strong fundamental practice skills.”

Professor Kuehn concludes by recommending that studies could best be done on a school-by-school basis by “surveying likely employers to find out what educational experiences of students are most valued.”  Professor Kuehn also recommends that schools could also “retrospectively look at various employment outcomes for graduates and any relationship” to students’ experiences while in school.

I agree with Professor Kuehn and am happy to report that  Albany Law School,  through its faculty Assessment committee and Admissions office,  is currently engaged in conducting employer focus groups and analyzing what best helps our students obtain employment in their desired career paths.  Until good data and information suggests otherwise, Professor Neil  Hamilton’s advice to law students,which Professor Kuehn quotes in his “must read” article, bears repeating:

In this challenging market for employment, a law student can differentiate herself from other graduates by demonstrating to legal employers that the student both understands the core competencies that legal employers and clients want and is implementing a plan to develop these competencies, including an ability to demonstrate that the student has experience with these competencies.

What’s going on in California? “TFARR- recommended” 15 credits of competency training

For those who did not closely follow the California State Bar debate on the requirement of 15 credits of competency training for bar admission (the work of the Task Force on Admissions Regulation Reform, or “TFARR”), I summarize the current status.  (Although I am currently co-prez of the Clinical Legal Education Association, known as CLEA, this post is not written with that hat on.)  This is my own thinking, albeit, informed by the excellent work of the CLEA Advocacy committee.

The TFARR process was two-staged, over a three year period, with opportunities for public comment throughout. CLEA  participated in that process and submitted five separate comments on the proposals that are available at http://www.cleaweb.org/advocacy under “Briefs and Other Advocacy” (documents 4-8).

In the end, TFARR recommended 15 credits of competency training which can be achieved in a variety of ways (in addition to how experiential credits can be earned under the new ABA regulations), and which include six credits of summer work. You can read the TFARR Phase II Final Report  at: http://www.calbar.ca.gov/AboutUs/PublicComment/Archives/2014PublicComment/201411.aspx

The process was complete in November, 2014, with final TFARR recommendations to the State Bar Board of Trustees (that responded to public comments) and unanimous adoption by the Board: http://board.calbar.ca.gov/Agenda.aspx?id=10891&tid=0&show=100008800&s=true#10013881 (agenda item 113). The TFARR Phase II FInal Report represents a compromise based on extensive input.

Lately, some confusion has arisen because of a letter posted to the AALS website authored by a non-standing committee of Deans.  The confusion arises because:

  1. Neither AALS nor this special Dean’s committee ever participated in the two stage TFARR process and so appear to be sort of “johnny come latelys, ” and
  2. The letter mistakenly focuses on an earlier draft of the final proposal failing to recognize the compromises already reached in the final proposal.

I understand that there are efforts underway to correct the confusion which makes me happy since the Deans’ letter is signed by two people whom I have long admired in a variety of contexts.

Other blogs are already exploring the 15 credit  proposal and its interesting and creative approach. For example,   “Kudos to California”  What do our readers think?

Gender and Lawyers’ Worklives

As we think about how to improve legal education, it’s always helpful to understand  our students, their careers, and what they value.   UW Law reference librarian Mary Whisner shared this item, that I missed when it initially came out:

Harvard Study: Women Lawyers Work More Than Men,

Bloomberg BNA Big Law Business, May 12, 2015

Harvard Law School’s Center on the Legal Profession released the results of a widespread survey of its graduates which suggests women work more hours on average than men, among other potentially myth-busting findings.

Through a survey of HLS graduates from the classes of 1975, 1985, 1995 and 2000 and other research, it provides a detailed portrait of the gender gap within the legal profession, including all the ways women have advanced or failed to advance.

. . .

https://bol.bna.com/harvard-study-women-lawyers-work-more-than-men/

The study also finds the women graduates satisfied  with the substance of their work, but dissatisfied with their compensation, while the reverse is true for men.

The full study (86 pp.) is David B. Wilkins et al., The Women and Men of Harvard Law School: Preliminary Results from the HLS Career Study (2015).

Would these findings about Harvard Law grads would hold true for lawyers generally.  If so, are there any implications for legal education?

Here’s one speculation:  Perhaps men experience more cultural push towards financial security and success in the form of work in Big Law. They might also experience less cultural encouragement toward emotional self-awareness, introspection about purpose in life,  and a service orientation. If so, the result might be that more men focus on external motivations and pursue the Big Law path,  even when it’s a bad fit with their interests, skills and values. They then find themselves less satisfied with the substance of their work. (And, given gender myths about women’s lesser commitment to the workforce, the men might be able to meet expectations with fewer hours.)  If so, legal education would be well advised to improve efforts to help students develop their professional identify, focusing both  on developing students understanding of lawyers work in different settings, and on students’ own talents, interests and values.

Another speculation:  Perhaps women tend to be less confident about the quality of their work and log more hours as a result.  Legal education could help them appreciate their own talents and skill level.

Other thoughts?

Building on Best Practices now available as eBook

Are you trying to:

  • Develop a meaningful law school mission statement?
  • Understand new accreditation requirements, learning goals, and outcomes assessment?
  •  Expand your experiential offerings?  Decide whether to use modules or courses?  An on-site clinic, an externship, or community partnership?
  •  Teach ALL of your students in the most effective ways, using a full range of teaching methods?
  • Add to your curriculum more of the professional identity, leadership, intercultural, inter-professional and other knowledge, skills, and values sought by 21st century legal employers?
  • Lead thoughtfully in the face of the challenges facing legal education today?

These and other topics are addressed in Building on Best Practices:  Transforming Legal Education in a Changing World,  now available in ebook format from LexisNexis at no charge.

The print version is not yet out.  LEXIS-NEXIS is taking advance orders for $50, plus shipping.  BUT we understand that they will make one copy available to every US legal educator for free upon on request.  Details on this and international availability still to come.

Thanks, and congratulations, to book project sponsor Clinical Legal Education Association (CLEA), the more than fifty legal educators who participated as authors, and the countless others who assisted as readers and in numerous other ways.

And, a huge shout-out to my wonderful and talented co-editors, Lisa Radke Bliss, Carrie Wilkes Kaas, and Antoinette Sedillo Lopez.

Building on Best Practices for Legal Education Manuscript Submitted to Publisher

Four editors,  59 authors, 92 readers, three copy editors, librarians from two schools, a secretary, miscellaneous consultants, three student assistants for bluebooking, and one for setting up perrmacc links.*

Many people, occasionally in multiple roles, were needed to produce the manuscript sent to Lexis last Monday for the forthcoming book Deborah Maranville, Lisa Radtke Bliss, Carolyn Wilkes Kaas, and Antoinette Sedillo López (eds.),  Building on Best Practices:  Transforming Legal Education in a Changing World. (Lexis 2015).  A monster project — but, as I assured a friend, no, not a manuscript about monsters and not monstrously unpleasant to produce – just big, ambitious, and sometimes exhausting for the editors and authors.  A big thank you to all who participated!

The book is a follow up to CLEA’s Best Practices for Legal Education, the 2007 volume by Roy Stuckey and others that inspired this blog.  Like Best Practices, this book will be distributed for free to legal educators.  Lexis has promised to make it available in electronic format through their e-book library and to provide print copies on request.  Look for it in four to six months — if all goes smoothly perhaps in time for the AALS Clinical Legal Education Conference in early May.

The coverage of Building on Best Practices is wide-ranging.  To quote from the Introduction, “[t]his volume builds on the call to link mission and outcomes; emphasizing the themes of integrating theory, doctrine and practice, developing the broader spectrum of skills needed by lawyers in the twenty-first century, and taking up the question how best to shift law school cultures to facilitate change.”

Advance praise for the book has included:

  • “[M]ilestone in legal education . . . that legal educators will rely on as much as . . . on the first Best Practices book.”  (Patty Roberts, William & Mary)
  • “Educational for folks who don’t know much about experiential education and insightful for those who do. . . .Really something to be proud of . . . an invaluable resource to schools as they go to work on implementing the ABA’s new requirements for learning outcomes and assessment. . .The perfect product coming out at the perfect time.” (Kate Kruse, Hamline)

Once again, CLEA deserves kudos for its support of an important scholarly project on legal education.  And the Georgia State University, University of New Mexico, Quinnipiac University, and University of Washington Law Schools deserve a big round of thanks for supporting the co-editors in this project.

https://perma.cc/ provides an archive for those annoying website links that quickly become outdated.

Monsters in the Closet: My Fears about Curricular Reform

When the Carnegie Foundation for the Advancement of Teaching had the good sense to publish its report, Educating Lawyers: Preparation for the Profession of Law (William Sullivan, Anne Colby, Judith Wegner, Lloyd Bond, Lee Shulman, 2007) on the heels of Best Practices for Legal Education (Roy Stuckey and Others, 2007), I was among those rejoicing. The two volumes speak volumes about legal education, and the academy was taking notice. Two great leaps forward for legal education! Now I find myself in a hubbub of workshopping and consulting with hundreds of others engaged in renovations, innovations, and reforms. Can the tipping point be far behind? Isn’t this a dream come true?

But as the initial euphoria wears off, I discover a few anxieties interfering with the dream.

Monsters in the Closet.
All changes and new beginnings carry risks, and the risks I see in the future of legal education take on the forms of familiar monsters. I’ve dubbed them Discoverers, Crusaders, and Regressives.

Discoverers. This doesn’t sound in monsterness, but here’s how I think of it: In lots of gatherings where curricular change is discussed, I hear things that suggest that experiential education is something that has just appeared out of the mists. At one gathering, for example, Harvard’s first-year Problem Solving Workshop – a three-week course in which classes of 80 students work through seven fact patterns – was presented as a “radical” innovation, a “revolution” in law school pedagogy. (See HLS website at law.Harvard.edu/news/spotlight/classroom/problem_solving.html) When I first heard about this “radical innovation,” I thought it was a good joke. But nobody was laughing. This is when the monster first appeared. I heard echoes of western Europeans boasting that they had “discovered” the American continents. And I know from my studies of history that if they claim it, they will try to tame it to their own purposes. That fear is worthy of a monster’s appearance.

Crusaders. No doubt I’m getting too political here, I’m dabbling in hyperbole. But there is a certain kind of enthusiast that scares me. Someone lights upon field placements as a valuable teaching method, which it surely is, but then quickly decides that it is THE valuable teaching method, and oh, by the way, it just happens to be a cheap substitute for in-house clinics. Or a mandatory first-year or third-year course with an experiential component is somebody’s idea of a one-size-fits-all educational unit that will satisfy ABA Standards (assuming the Standards continue to exist), and other initiatives or existing programs are abandoned. Or in a rush to give every student a meaningful experience, community needs and interests are brushed aside with the introduction of a massive service learning requirement that burdens the community and gives back little or nothing. Call me paranoid, but I can see that Crusader monster coming at me.

Regressives. Here’s something else in the talk I hear. I hear the benefits of Carnegie and Best Practices and Clinic in general referred to solely in terms of practical experience and skills. It’s not that I denigrate those things, but several generations of clinical, legal writing, and experiential teachers have advanced pedagogy and theory far beyond skills education and practical experience. The reach of experiential education goes much further. It involves the integration of knowledge with action and responsibility, an integration that comes about as a result of highly sophisticated teaching. (I hope others will offer more articulate explanations of this dynamic.) Practice skills is a beginning, certainly a focus that merits ongoing attention and development, and perhaps even the center of experiential education; but I hope we aren’t entering an era that ignores the many concentric circles of knowledge and experience that surround that center and have been developing for a very long time now. We aren’t really going to start entirely from scratch, are we? That fear is what has me waking from nightmares screaming “It’s not new!” and “It’s not simple!” and “Hey, there are experts in the house!”

In my calmer moments, there is still the dream that the hour of change has come, and that the change will bring something closer to the collective vision of legal education cultivated by these several generations of experiential faculty than the Monsters in the Closet portend. When I am rational enough to listen, my advice to myself is to throw in the DICE. DICE here is an acronym (a pedagogical trick). The initials stand for these buzzwords: Diversity; Intentionality; Competencies; and Engagement.

D.I.C.E.
D: Diversity. We could say that clinic (or, more broadly, experiential education) is a genre, with many subgenres that include: in-house clinic; field placement; policy clinic; hybrid clinic; legal methods, legal writing, simulation. This list is not definitive, and probably can’t be, since, as the genre experts tell us (yes, there are genre experts), genre is a fluid concept, historically and culturally situated. Still, it may be useful to identify elements of these courses and programs in order to organize and classify them into malleable categories with at least temporary boundaries. I offer a few thoughts about how to break down the variables that help define experiences at different schools. This is not meant to be prescriptive, just simple observations about what elements are present and more or less dominant in different programs.

Basically, I believe we are looking to provide a full menu for our students. The exact make-up of the menu is dependent on, among other things, the interests of faculty, faculty and student competencies, and student interests. Among the overall goals of experiential programs are experience-based learning; applied learning or contextualization; use of independent judgment; complex problem solving; and the integration of skills, values, and knowledge domains. With that in mind, some factors in course or program development might include:

Pedagogical Focus:
Doctrine
Skills
Professionalism (Lawyer’s Role and Professional Responsibility)
Policy/ Legal Process/ Systemic Analysis

Methodologies:
Role Play / Simulation
Research and Writing
Vicarious Lawyering
Mentoring Relationships
Small Group Work
Guided Reflection
Guided Discussion
Actual Practice

Complexity Factors:
How much teaching is done “in the moment”
Dealing with real consequences
Dealing with real relationships
Degree of Collaboration
Interdisciplinary coordination
Multiple fields of practice
Multiple problem-solving strategies and fora
Community or public engagement
Number and diversity of clients and issues
Ongoing nature of problems or issues

Additional Factors:
Level of predictability/ control over outcomes & consequences/ risk factors
Extent to which course direction is correctible
Extent to which faculty exercise selectivity in various factors
Contact with and decision-making responsibility with respect to clients
Level of faculty supervision, as well as of supervision in general
Extent to which social justice is a focus

Should faculties pick and choose among these elements, identify and rank the values inherent in them, and determine the likely outcomes or consequences of different configurations, they may begin to hone in on the types of experiential offerings that will work best at their respective institutions.

I: All this leads to the second buzzword: Intentionality. We may aspire to curricular wholeness, but intentionality recognizes the fact that we can’t do it all; we have to make choices. Choices ought to be thoughtful, and not based solely on the economies of the moment. If we want to keep the Crusaders at bay, we have to beware of the risk of presumed interchangeability: these subgenres are not virtually identical, to be reduced to some essentialist idea of practice experience. Four hours of trial advocacy isn’t the equivalent o f four hours of a housing clinic; externing in a prosecutor’s office doesn’t expose students to the same learning that preparing testimony for a legislative hearing on a criminal justice initiative does. ne isn’t necessarily better than another, but choosing one model over the other entails loss. In clinical methodological terms, we have to articulate goals, think consequences, clarify values, then make hard choices. Wholeness, moreover, isn’t necessarily linear. A lot of planning has to go into sequencing and coordination.

C: When making choices, one of the factors has to be Competencies. I am not speaking of the competencies we want our students to leave with; I am speaking of the competencies that faculty bring to teaching in the experiential forum. I’d venture to guess that in most schools, there are a lot of people who know a little about experiential pedagogy, but that few schools have large numbers of expert, experienced experiential teachers. This presents a good many challenges. There are those who know something, but don’t know they know it; those who think they know a lot but are mistaken; those who have no interest in knowing; those who would be interested if only they had the time or a safe way to learn; those who know a lot but whose knowledge isn’t noticed because of status hierarchies or time or geography; those who know everything about law teaching and can say without a doubt that experiential competency is not in the mix of “everything” there is to know. How to approach this? The evaluation experts have given us some tools. For example, we can chart rubrics for our own competencies the way we are being taught to chart students’ progress.

I can offer a sample of competency rubrics in Experiential Pedogogy (EP) (it’s based on an instrument developed for a Community-Engaged Scholars Project at the University of Minnesota; most of the credit goes to my colleagues in this project, Bill Doherty, Gail Dubrow, Cathy Jordan, and Tai Mendenhall ).

 Competency Level in Experiential Pedagogy (EP)   Knowledge/Theory      Practice/Skills     Integration of Theory            and Practice
               
             0                        
Has minimal knowledge in experiential pedagogy Has no ability in essential practice skills Has no understanding of relationship between theory and practice.
1
Basic
Familiarity
Has some familiarity with experiential pedagogy Has had exposure to and has observed skill sets or competencies successfully used in practice; has had some opportunity to practice skills; has interest in or exposure to skills utilized in context. Can recognize conceptually applications of integrated knowledge and theory in context; can identify basic principles of EP in their application.
2
Working
Application
Is able to integrate and articulate diverse elements of EP knowledge/theory Effectively utilizes skill sets; consciously employs theoretical frameworks, models and methods of EP in practice or teaching. Can effectively apply theory to factual or practice context; is able to work with others in developing methodologies for teaching.
3  
Critical Analysis
Has done critical analysis of and reflection on work of others using EP principles in the analysis. Has done critical analysis of processes, methods, or systems, including  proposals for change, through grant writing, political action, community education or similar initiatives.      Has done critical analysis of systems, policies, or institutions crossing academic and practice lines.
               4    Communication Has demonstrated ability to synthesize and engage in creative analysis by putting EP work into communicable form; has record of scholarly production in appropriate media or publications; has knowledge of and has successfully applied EP benchmarks, outcomes, and assessments. Has a record of successful experimentation in methodologies; is recognized for leadership in some circles of practice or teaching; is able to share and transfer skills and enhance capacity, through, e.g., teaching, faculty/ professional development, community building. Has engaged in successful collaborations across disciplines or fields of practice; works effectively to translate EP theory and methods into actions that have significant policy implications; is able to effectively describe the scholarly components of   the work.
             5

Demonstrated
Influence

Can show demonstrable influence in professional spheres; is able to help those engaged in EP to thrive in an academic environment.              Can demonstrate impact on processes, methods or systems; successfully uses understanding of methods processes, and systems through service in spheres of influence such as RPT committees, board memberships, standards development groups.   Has been instrumental in effectuating systemic change or transforming practice paradigms; provides beneficial support to students, junior faculty and/or others engaged in establishing and developing EP courses or projects.

I’m not sure it can be reproduced here in a readable form, but I can say that it places experiential pedagogy (EP) competencies in three categories: Knowledge/Theory; Practice/Skills; and Integration of Theory and Practice. Each category is then broken down into competencies at five different levels: 1, Basic Familiarity; 2, Working Application; 3, Critical Analysis; 4, Communication; and 5 Demonstrated Influence. I am happy to share the chart with anyone who is interested. Development of and discussion around a competency chart like this could yield significant results. Ok, good luck with that.

E: Finally, we might be able to control the monsters in the closet by acts of Engagement. We need to talk, openly, honestly, often. The most successful innovations follow patterns of communication, leadership, conflict resolution. To give credit where credit is due, the Harvard 1L workshops do engage tenured, non-clinical faculty; if they have been having conversations across the teaching hierarchy, hats off to them. There are many schools taking those first steps, many of which involve boundary crossings. We all benefit if these beginnings lead to bigger structural shifts. It’s never easy and it takes time, but that’s what it will certainly take to keep the monsters away. Best Practices and the Carnegie report were great leaps forward. But it’s worth remembering that winning a battle isn’t winning a war. And winning a war is just the beginning of many battles to come.

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