The Best Practices for Legal Education Blog would like to extend a special thank you to the Clinical Legal Education Association (CLEA) for their dedication to this project.
Posted on January 5, 2022 by Melanie Daily, University of Kansas School of Law
By Robert Kuehn, Washington University School of Law
In 1980, one-third of law students and only 14% of all law teachers were female, and a mere 9% of students and 4% of faculty were identified as non-white. Today, law faculties are more diverse by gender and race/ethnicity. Yet, the demographics of faculty subgroups diverge widely and, importantly, faculty remain less diverse than their students.
Focusing principally on law clinic and field placement teachers (full time, excluding fellows), over two-thirds identified as female (cis or trans) in the latest 2019-20 Center for the Study of Applied Legal Education (CSALE) survey. The graph below reflects a trend of increasingly female clinical faculty beginning in the late 1980s/early 1990s and continuing through all five tri-annual CSALE surveys:[1]
Newer clinical teachers are even more predominantly female ─ 73% of those teaching three years or less are female. Within clinical teaching areas, those who primarily teach field placement courses are more predominantly female than those who primarily teach in a law clinic — 82% of field placement teachers are female compared to 65% of clinic teachers.
By comparison, 47% of all full-time law teachers were identified as female in 2020 law school ABA annual reports, an increase from 40% in 2011, 32.5% in 2000, and 24% in 1990. However, ABA results include the overwhelmingly female clinical and legal research and writing faculties. If clinical (67% female) and legal writing (70% female) faculty are removed from the 2020 ABA totals, women constitute fewer than 38% of full-time non-clinical/non-legal writing faculty, as illustrated below.[2] In contrast, 54% of J.D. students in 2020-21 were female, compared to 47% in 2010, 48% in 2000, 43% in 1990, and 34% in 1980.
Faculty have increased in racial and ethnic diversity since 1980. The percentages of full-time clinical teachers by race/ethnicity are shown in the table below. Surveys indicate steady, but slow, growth in the percentage of full-time non-white clinical teachers (excluding fellows) over the last four decades.
Clinical Faculty Race/Ethnicity
SALT 1980[3]
SALT 1986
AALS 1998[4]
CSALE 2007
CSALE 2010
CSALE 2013
CSALE 2016
CSALE 2019
White
95%
92%
87%
87%
86%
83%
80%
78%
Non-White
5%
8%
13%
12%
13%
15%
17%
18%
Other/2 or More Races
─
─
<1%
1%
1%
3%
3%
3%
Among newer clinical teachers of three years or less, the percentage of white teachers was slightly lower at 76%. Within clinical teaching, 77% of primarily law clinic instructors and 83% of primarily field placement teachers are white.
In the 2020 annual reports, 21% of full-time law faculty were identified by their schools as “minority,” an increase from approximately 17% in 2011, 14% in 2000, and 10% in 1990. The most recent ALWD/LWR survey identified 13% of legal research and writing faculty as non-white, multiracial or other, compared to 12% reported non-Caucasian in its 2010 survey.
Similar to gender, law school faculty are less racially/ethnically diverse than their students: 34% of students were identified in 2020 annual reports as minority, an increase from 24% in 2010, 21% in 2000, 14% in 1990, and 9% in 1980.
Available surveys and reports do not include recent information on the age of law faculty. There has been no change, however, over the five CSALE surveys since 2007 in the median number of years of prior practice by those teaching full time in a law clinic or field placement course, remaining approximately eight years. Excluding those hired into temporary fellow positions, similarly across CSALE surveys the median number of years of prior practice experience among newer faculty teaching three years or less in a law clinic or field placement course has been eight years.
In sum, while the diversity of law school faculty has been increasing over the past four decades, it still lags behind the gender and racial/ethnic diversity among students. And even though schools are hiring increasingly more female faculty, women continue to be disproportionately hired into traditionally lower status/lower paying clinical and legal writing positions.[5] There may be no easy fix to these issues, but the first step towards addressing them is to be aware of the numbers.
[2] The 2020 ABA annual reports identified 4,399 female and 4,986 male full-time faculty (5 reported as “other”). Removing 1,157 female clinical teachers (67% of the 1,727 full-time clinical faculty reported by the 95% of schools that participated in the CSALE survey) and 649 female legal research and writing teachers (70% of the 927 full-time LRW faculty at the 169 of 203 ABA schools that participated in the 2019-20 ALWD/LWI Legal Writing Survey) results in 2,593 full-time female non-clinical/non-legal writing faculty. Further removing 848 male faculty identified in the CSALE and ALWD/LWI surveys results in 38.5% full-time non-clinical/non-legal writing female faculty. If the missing 5% of schools in the CSALE survey and 17% in the ALWD/LWI survey are accounted for, 37% of 2020 full-time non-clinical/non-legal writing faculty were female.
[3] The 1980 and 1986 SALT surveys excluded faculty from minority-operated schools and, therefore, likely underrepresented non-white faculty.
[4] “AALS” percentages are from an AALS Clinical Section database reported in Jon C. Dubin, Faculty Diversity as a Clinical Legal Education Imperative, 51 Hastings L.J. 445, 448-49 (2000). [1] Robert R. Kuehn, The Disparate Treatment of Clinical Law Faculty (2021), https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3760756.
Law students may be accustomed to receiving feedback, but as lawyers, they will also be called on to give feedback. They may review a colleague’s brief or contract, adapt samples, help moot a case or supervise a summer or new associate, etc. Learning how to give feedback effectively can also help them develop their critical eye to assess and revise their own work. Giving feedback effectively is thus another skill worth teaching. [1]
In my classes, students have opportunities to exchange feedback with peers on written assignments through structured peer reviews and through moots and case rounds. More informally, they exchange feedback regularly with their partner as they work on their clients’ cases, and as we debrief together in team meetings.
To be sure we have a shared vocabulary and framework for giving feedback, I include in the beginning of the semester a lesson on giving feedback. It also sets a tone for receiving feedback. My stated objectives for the lesson are to (1) reflect on how they have received and given feedback in the past; (2) explore what it means to have a growth mindset; (3) learn a framework for giving effective feedback; and (4) practice using that framework.
I begin by having them answer polls about what goals or concerns they have had when giving feedback in the past and then how they like to receive feedback. Often, the polls reveal that most students want to help someone improve their work but are concerned they will hurt the receiver’s feelings—while they themselves prefer direct and honest (which students often frame to me as “harsh”) feedback. We discuss these tensions, and circle back to them throughout the class and the semester. We also explore and discuss the differences between direct and directive feedback, and I share how I usually give feedback (e.g., asking them questions to help them puzzle out what they need to do to make the product more effective or sometimes identifying the issue and modeling one but letting them find where they did it other times).
Figure 1: Sample Poll Question Assessing How Students Like to Receive Feedback
Discussing the polls segues to talking about what it means to have a growth mindset, because the polls usually demonstrate that the students’ best experiences in giving and receiving feedback were when they were open and ready to learn. I introduce (or re-introduce) Carol Dweck’s Mindset theory work, highlighting the differences between the fixed mindset (intelligence is static) and the growth mindset (intelligence is malleable). I emphasize how we all occupy both mindsets at different times, even though we may gravitate to one over the other. I emphasize, too, how we can learn to recognize when we are occupying a fixed mindset and then work to reorient ourselves to be in one of growth.[2] For example, as a 1L, I struggled to grasp Contract law. It would have been easy to give up and conclude that I was just not a Contracts person and write off the class (and my ability to understand it). That’s a fixed mindset. To succeed, I had to shift to a growth mindset. I had to shift to thinking that while I was not yet understanding Contracts, I was capable of understanding it and needed to put forth more time and effort to do so.
Figure 2: Slide with a summary of Carol Dweck’s mindset attributes.
One’s mindset is important for feedback—both receiving and giving. When a person is occupying a fixed mindset when receiving feedback, she is entering the exchange with the goal of receiving validation and approval. She will be more resistant to criticism, no matter how constructive. Similarly, when giving feedback, a person occupying a fixed mindset may offer feedback aimed more at demonstrating how smart he is or with performing if in front of other people than responding to the goals of the person seeking the feedback. Alternatively, someone giving feedback while occupying a fixed mindset may not think he has anything of value to add and thus not offer much in the exchange. Getting into a growth mindset—for both the receiver and giver of feedback—and seeing the exchange as an opportunity for both to learn and improve is essential for sharing feedback effectively. If both the giver and the receiver are occupying a growth mindset when exchanging feedback, they will learn and draw inspiration from each other and propel each other to higher levels of achievement.
In addition to having a growth mindset, I advise the students that when giving feedback, they should focus on the skills or product not on the person, personality, or identity. And their feedback should be constructive; meaning, it should be based on observations not opinions, be concrete and achievable, and limited. The giver of feedback should not overwhelm the receiver with tons of pieces of things to correct and should always include at least one thing that should be preserved because it is already effective.
I then share the following framework for giving feedback, complete with the (possibly silly) mnemonic: IDEASS.
Figure 3: IDEASS Framework
The first objective when someone is asked to give feedback to another is to identify the priorities or goals of the person seeking the feedback. What would the receiver most like to get out of the peer review, moot, or rounds? What feedback would be most helpful? How do they prefer to receive feedback? Are there particular questions the receiver has that they are seeking answers to? When is the product due and how much time do they have to revise? These questions help set expectations to guide the exchange.
The student then needs to diagnose the issues. This may be difficult; it’s also crucial because it focuses the feedback and helps to train the analytical skills and critical eye of both the giver and the receiver. To diagnose the issues, the giver of feedback needs to understand and articulate what the underlying norms or rules of the skill or product are. For example, if giving feedback on headings in a brief, the underlying rule for effective headings might be that they should be framed as conclusions that blend law and fact allowing the writer’s arguments to appear as an exoskeleton of the brief. For a direct exam, the underlying rule might be that the questions should be open-ended rather than leading. These underlying issues or rules might mirror what the receiver of feedback identified as their priorities. They might have asked for help making their direct exam more open-ended, for instance. If the underlying norms or rules for the product are not clear, the giver of feedback should askthe person seeking feedback what they intended or how they chose to do what they did, then the giver can share observations about the product or skill.
The student giving feedback should share one or two effectiveaspects and then one or two areas of focus for improvement. Often “feedback” seems only to encompass the latter but sharing what worked well or what was effectively done helps the giver know what to keep or what to replicate going forward. Both feedback about effective aspects and those that could be improved or more effective should be shared as what the giver observed.
Sharing observations, not opinions, helps both receiver and giver to continue to occupy a growth mindset and to maintain the goal that both are learning through the exchange. The giver should focus on what they noticed about the skill or product and reflect or even replay what the person seeking the feedback said or did. For example, if the student seeking feedback on a direct exam asked a leading question, the student giving the feedback might note: “you asked your client: ‘Were you trying to leave your partner when you went to stay at your grandmother’s?’ That is a leading question.”
After reflecting what she noticed, the student giving the feedback can then suggest next steps or solutions. How might someone do it differently next time? The student may also model a solution. She might, for example, say: “Instead, you could ask: ‘Why did you go to stay at your grandmother’s?’” Alternatively, the student giving the feedback might ask the student who did the direct exam to arrive at a solution by saying something like: “How might you ask an open-ended question to get the same point?” At this phase, if possible, the person seeking the feedback could try again or revise the product, incorporating the feedback.
Putting it all together, a student’s feedback on the direct exam hypothetical may look like this:
You wanted me to assess your direct exam.
Your questions have a good rhythm and build upon each other in a way that allows your client’s story to come out persuasively.
Some of your questions were not yet open-ended. For example, at one point, you asked your client: ‘Were you trying to leave your partner when you went to stay at your grandmother’s?” That is a leading question. Instead, you could ask: “Why did you go to stay at your grandmother’s?”
Beyond sharing IDEASS with their peer, I encourage students to also use growth language[3] in giving feedback—such as the words: yet, and, and opportunity—and to express gratitude by thanking each other for the time, feedback, and opportunity to help. Then, to finish the lesson, I have my students practice using the framework with a simulation. I share a video of a simulated client interview (e.g., one from the Legal Interviewing and Language Access Film Project, created by Lindsay M. Harris and Laila L. Hlass, which as one of the participants in the lightning session at the AALS Clinical Conference in the spring of 2021 noted is the gift that keeps on giving!) and have the students share their feedback to the student interviews in the video. The students thus get to practice using this IDEASS framework for feedback in a low-stakes way. We can then revisit this shared vocabulary and framework as needed throughout the semester when they are called upon to give feedback to a peer—and continue to build this skill along with many others.
[1] This blog post summarizes the lightning session at the AALS Clinical Conference 2021 by the same name.
As a human rights advocate focused on gendered violence work, about seven years ago I began employing the term “negotiating trauma” (while developing a class of the same name for UC Berkeley School of Law) in order to encourage fellow lawyers to consider, recognize and better prioritize the many emotional interplays in our everyday work.
This new article focuses on trauma & the classroom. I propose adopting “a combination of simple strategies… that better acknowledge trauma (whether or not the professor chooses to use that term, and whether or not the class is a small seminar or large lecture) is to everyone’s advantage in today’s law school.” Like with other negotiations, we could apply a zero-sum approach to the various players’ emotions involved in legal teaching or choose to instead engage the complexity to generate better, perhaps deeper, and eventually more valuable learning and lawyering.
The Abstract:
HOW DO YOU NEGOTIATE TRAUMA AND EMOTIONS IN YOUR CLASSROOM? Posing this open-ended question to law professors not only begets more questions, but also often elicits a reflexive retort: law professors dare not present themselves as mental health experts and law schools have mental health resources for students having difficulties. The difficulty of this approach is that in 2021, most law students are no longer willing to accept that their legal education must suppress emotions, including trauma. For classrooms where professors may be less comfortable with emotional discussions, they may find themselves challenged and perhaps even feel obstructed from teaching their subject matter with the freedom and expertise it deserves. Are we simply dealing with an overly sensitive generation? Or are we being pushed to make overdue changes that will improve legal teaching, legal education, and eventually the profession?
In their new article, Assessing the Experiential (R)evolution, 65 Villanova Law Review 713 (2020), Allison Korn and Laila Hlass describe the ways in which experiential education is experimental education. Faced with the 2014 ABA regulation mandating that all students earn at least six credits toward graduation in experiential courses, clinical education has been responding experimentally to the need to do more experientially, offering more courses in more forms to more students. At the same time, many law schools have been doing more with less, as the need for experiential growth has been accompanied by the diminished availability of resources.
We can add to the complexities of this picture our burgeoning crises in global health, democratic governance, lethal racism, economic inequality, planetary survival, and other dangerous and pressing social problems that are implicated in the kind of work that clinical education undertakes. Involving students in urgent and weighty matters of law and justice has long animated the clinical movement. Have the ABA’s regulatory moves facilitated or impeded these aims in any way? How is clinical education faring at this challenging moment?
Korn & Hlass seek to address questions like these empirically, reporting in their article the findings of a 2018 survey they conducted to gather information about how experiential programs have changed in response to the ABA’s six-credit mandate. The authors find that our experiential experiments have yielded an array of curricular innovations, especially though not exclusively in upper-level courses. Their article also confirms the trend in most law schools to name a dean or director of experiential education, presumably to help design and oversee the experiential curriculum and to manage expanding experiential programs.
The latter finding builds on those analyzed in Barry, Dinerstein, Goldfarb, Maisel, and Morton, Exploring the Meaning of Experiential Deaning, 67 Journal of Legal Education 660 (2018). In this article, my co-authors and I observed that despite a rapid increase in the creation of experiential administrator positions, and the assignment of various tasks to their holders, law schools had not fully conceptualized the nature of the position. Consequently, the meaning of experiential deaning was in the process of invention and negotiation in each dean’s school. In other words, these roles were experiments.
Experiments, of course, are designed to be evaluated. Applying a clinical method of learning, Korn & Hlass urge that we develop processes for evaluating recent experiments in experiential education, so that we can extract the lessons inherent in our experiences with administering, teaching, and reforming it. Which changes are working well and worth retaining? Which should be revisited? Are institutional goals guiding these decisions? To the extent that experiential administrators are steering these changes, how have institutional goals informed their work? Are law schools further developing and defining these administrative positions? Are these positions evolving in a sustainable way? What conditions best support their sustainability?
The authors, experiential administrators in their respective institutions, have sought to learn from their own experiences in these administrative positions, to ask pertinent questions, suggest possible answers, and frame an assessment project that would guide them, and all experiential educators, in moving forward as knowledgeably and effectively as we can from where we stand now. A rigorous assessment project of the sort that they helpfully propose in this article would inform our choices about the future of experiential education.
Having seen over many years how experiential learning can enliven, deepen, and transform legal education, I strongly value the expressive quality of the ABA’s regulatory directives to provide that kind of educational engagement to all law students. I can envision rich curricular possibilities that these directives might support. But my underlying fear has been that general law school administrators, especially those lacking awareness of the insight-cultivating aims of clinical pedagogy, would seek bare bones fulfillment of the mandate, finding the most limited and low cost ways to offer all students six experiential credits and shortchanging the educational opportunity that the mandate might represent. Has that happened? Korn & Hlass have begun to elicit the sort of information we need and to frame the kind of assessment process that we can use to better understand what the ABA’s regulatory efforts have wrought.
In gathering and analyzing experiential education’s experimental data, Korn & Hlass have taken an important first step toward a process of conscious assessment and collective deliberation that hold promise of improving our experiential programs and of identifying meaningful, inclusive, and sustainable practices for the next stage of development in experiential education. The experiential education community would be well-served by joining them in this important and productive endeavor.
But taking a step back from equalizing the experience of students already in law schools, it may be time to think about who isn’t there–and why. What aspects of legal education, such as the cost and program structure, create barriers to entry? And how do these barriers to entry worsen an ever growing justice gap in the United States where only a small percentage of people who would benefit from legal representation have access to a lawyer?
We can’t as legal educators end the systemic racism and economic inequalities that block many people from even being eligible to attend law school. Nor can we always reconfigure our aging infrastructure. But we can take responsibility for what we charge students to attend and how we structure the conditions for completion.
The first step to lowering the barriers within our own control is to recognize them. We need to re-evaluate the very structure of legal education–which can be most easily seen by reviewing the standards that both govern and reflect current practice. My intent is not to criticize the existing ABA standards or those who drafted and uphold them nor to suggest that they be rescinded, and legal education deregulated. But rather to recognize the consequences and costs of these practices so we can better evaluate their value. Below is a list of some obvious suspects–I’m sure everyone can generate more.
*Restrictions on Distance Education
With few exceptions, approved law schools cannot confer a degree on a student who does not earn two-thirds of their credits in face to face instruction. This continues to put law school out-of-step with nearly every other degree-granting program in the United States and to both the cost and physical demands of attending law school.
*Expensive Eligibility Requirements:
B.A. Required
Next on the list, we need to consider the cost in time and money of requiring that students earn a B.A. before enrolling in law school. Lawyers in Europe, South America, Africa, Asia, Australia, New Zealand are all practicing laws at the highest possible levels without seven years of post-secondary specialty training.
*Length of Degree and Time Limit on Completion
Not only must students complete a B.A., but they must also accumulate 87 credits within 84 months of enrollment. This of course adds cost in the form of tuition, but it also requires an even greater expenditure of time away from family and limit on the ability to earn a living.
Each of these requirements, indeed each of the Standards which govern legal education, were developed with the best intentions, but if the pandemic has taught us anything, it’s that just because we haven’t done something before doesn’t mean we can’t or shouldn’t find a way to do it now.
In my lasttwo blog posts, I wrote about how law school’s structure unfairly benefits students who come in knowing how the game is played and those with the resources to play it under the best possible conditions. I’ve also linked legal education to the systemic bias of the legal profession.
Our current situation, a still spreading deadly pandemic that has so far claimed over 250,000 lives in the U.S., has intensified those inequalities for everyone. The evidence is already coming in of how the Pandemic is harming first-generation students.
But it has also provided a clearer window into what was always apparent to student services professionals but not so much to faculty–how much harder the law school experience is for students who come to it with fewer resources of every kind.
For example, online learning is only as good as the environment in which students learn and we are already seeing effects on students with the least resources. In normal times, all of our students have near 24/7 access to quiet, safe, comfortable places to study, engage in co-curricular activities, meet with faculty, and even take exams. Places without pets, younger siblings, or household chores. They have lightning fast internet, large monitors, bulk printers, and IT support for when things go wrong.
But of course a lot of what’s going isn’t visible in a 50 minute Zoom session. On campus, students have access to food either directly, by attending events, or can sometimes be signed up for university meal plans. But in a world where by some estimates, pre-pandemic as many as half of all U.S. college students experience food insecurity hunger is an increasing peril as is homelessness. The end of the moratorium on evictions means that as many as 8 million people will lose their homes over the next four months.
And then there’s the virus itself. As we all know (and have known for a long time), it very much does infect young adults–and it can hit them hard. All the factors that contribute to racial bias in health care are magnified by those that put Black, Indigenous, Latino communities at greater risk of infection and, once infected, at greater risk of dying. In addition, the harm caused by the uncertainty, fear, and loss triggered by living in pandemic conditions. These are only magnified by our law students who have faced trauma as bar examiners are caught flat footed and many of the pathways to employment, such as in-person summer placements, were disrupted.
Layered on top of economic disparities issues of systemic racism, sexism, and homophobia, these economic disparities mean that students come into law school with very different levels of debt. Which itself is affected by racial disparities. These factors are magnified in law students who come to us after four years of borrowing money for college. (The best information on law school debt is at Accesslex).
The Pandemic will end, and law students will once again have full access to law school facilities. But this glimpse into the real differences in backgrounds and resources should be a starting place for us to look at the law school experience, the gateway to the legal profession.
If any good can come from the experience of being so much closer to our students’ day to day lives, it should be an increased urgency to think about how we can make law school more inclusive.
In my next post, I will be more specific starting with a proposal reduce the cost of a law degree by moving a year of course work to the undergraduate level. Doing that would reduce the barriers to entry in the legal profession that saddle lawyers with debt and deprive most individuals in need of legal help from those best trained to assist them.
Long before law school we are taught that, as is engraved in the Supreme Court’s edifice, we are all entitled to “equal justice under law.” It is one of the fundamental ideals of the American legal system. And yet, it so often remains just that: an ideal to which we aspire but at which we have yet to arrive.
More than falling short of a collective goal, however, our nation’s history is replete with examples of racial injustice written into and undergirded by law: federally sanctioned redlining, internment of Japanese Americans, the failure to prosecute or convict police officers for killing Black people at rates three times their white counterparts. These more modern examples stem directly from the “manifest destiny” of our country’s founding and the early establishment of property law principles built on the commodification of Black bodies and seeking to justify taking land from indigenous peoples.
Despite the many overt examples, historical and current, of the ways in which race shapes our legal system, law faculty are often race-avoidant in teaching would-be lawyers. Race may be relegated to a “law and” discussion in upper-level seminars or covered only in reviewing seminal cases like Brown v. Board of Education. But its influence cannot be limited to one course or doctrinal area. Racial bias informs definitions of reasonableness and credible threat, shapes our views of what constitutes intentional infliction of emotional distress, and influences criminal sentencing and civil recovery. Stated or not, the influence of systemic racism pervades the law school curriculum because it permeates the entirety of the American legal system.
When race is absent from class discussions, that silence sends the message that the law is neutral and operates equally for all, when that is not the lived experience for so many. When we fail to incorporate issues of race and racism as foundational in core law school courses, we impede the professional development of future lawyers, who graduate without grappling with difficult but essential questions of how the law can operate to subordinate on the basis of race (and gender, class, age, sexual orientation, gender identification, religion, and ability – and the important intersections of those identities). Our silence about how race informs law and its application does real damage to students and can be particularly alienating – and intellectually violent – for students of color.
To encourage increased engagement with the ways in which race and racism undergird the American legal system, the Center for Access to Justice at Georgia State University College of Law compiled a Racial Justice Resource List. The non-exhaustive list, which will be updated as suggestions come in, is intended for law faculty teaching core (1L) courses who want to include assignments, readings, and discussion on issues of race. The list includes books, book chapters, law review articles, and multi-media for use in teaching how race influences law across the required curriculum. Where possible, the titles are linked to open-access sources. The resource list also provides suggested language regarding classroom expectations and learning objectives and considerations for how to amplify voices and stories that may not have been central in 1L syllabi.
Incorporating race into class assignments or discussions will likely lead to difficult, and even uncomfortable, conversations. Legal academia reflects the inequality otherwise manifest in the legal system: very few tenured law professors are Black. For white faculty, talking about race may run directly counter to the color blindness once expressly taught as virtuous. Leading a discussion, in a public setting, on a topic that has not been part of one’s scholarly expertise – and may not even feel a part of one’s personal experience – may lead to uncomfortable moments. But the work of antiracism requires that we give ourselves and our students the space to have brave and respectful discussions, to ask questions that will increase awareness of bias and how it manifests in the law.
Antiracism ought to inform every facet of legal education – hiring, promotion and tenure, admission, graduation – and it ought to be a through-line in the core law school curriculum. When it isn’t, we risk graduating lawyers who do not understand the origins of the law or its potential impact on clients, we perpetuate systems of inequality as if they were inevitable and deserving of maintenance, and we do a disservice to our students and to the profession, all the while undermining the commitment to equality we so proudly etched in stone.
On behalf of Andrew Henderson, PhD Candidate, ANU College of Law, The Australian National University
Developing a relationship with students in an online setting is a challenge. There are the problems with technology (‘You’re muted!’) and the usual interruptions (‘I’ll come and watch Paw Patrol in a minute’). But all those usual tricks we use as law teachers to ‘read the room’, especially at the start of the semester, don’t quite work.
One of the ways I have often got out ahead of student satisfaction in face-to-face classes was to have an explicit conversation about expectations. But not just the standard, finger-wagging ‘you will do the reading’ diatribe. I ask students specifically about their expectations of me.
I was an elementary school teacher. I often wondered why, when I moved to law school, law teachers didn’t do the same thing. Especially when they’re subject to a much more explicit student evaluation process.
But, by the time the comments appear, it’s generally too late to do anything about a lot of them. Assessment tasks were locked in with the faculty board months or even years ahead. And lectures are ‘done and dusted’.
Getting that feedback earlier on would, of course, have been valuable. And in an online environment, grabbing some of those expectations can be even more useful given that both students and teachers are doing something new. Some of the comments might even explain why law students were really engaged. They might also explain why they performed poorly or didn’t participate. It might have had nothing to do with you at all! But it will also tell you about things that you might have been able to do, or stop doing if you had known earlier.
But how can you do this in an online environment where no one really wants to sit in a Zoom room for more than an hour? And how can it be done to preserve a degree of sincerity and openness, especially in a first meeting?
Maybe one of the simplest ways is to use a shared document or even create a Google form with some simple questions. The settings for Google forms can be adjusted so that the respondent doesn’t have to enter their email. Responses are helpfully collected anonymously in a single Google Sheet that can be reproduced and published.
While the process of collecting expectations in the classroom was valuable, I have actually found that collecting them through an online tool even more useful. Students would appear to be happy to express themselves more freely and openly. They will often talk about their expectations and where they believe they need help with aspects of the content or skills development.
For example, students have asked for specific things to be covered in more detail because they aren’t sure they understand them. Some have asked for specific advice about particular skills, like essay writing. Some have even expressed their concerns about being called on but also suggested how I can help them manage that anxiety so that they can actively participate.
Overall, it has meant that I have been able to adapt my teaching and the content to respond specifically to students’ interests and needs. Put another way, students have been actively engaged in the development of the course.
Setting out expectations at the start of the semester can be a valuable process. From a selfish perspective, it can give an early ‘heads up’ things that can be addressed before student evaluation time. But, the more valuable outcome has been that my teaching overall has improved. Using these online tools has meant that expectations are captured accurately, clearly communicated and expressed in a way that has further enhanced my teaching.
Like many law professors, I found myself a few months ago teaching regularly from a laptop in my home. With little prior online teaching, I was intimidated. Relying on expert help at our school and in the legal education community, on lots of practice using the platforms available, and on the generosity of my students (who kindly took time to do pre-class sessions), I muddled through the semester.
When I learned we were likely to be teaching online again in some capacity, I decided to take advantage of the available resources to help understand the similarities and differences between face-to-face classes and online classes. I was delighted to find among these resources an article by one of my favorite educators, Gerald Hess. His article that explored many of the questions on my mind. See Gerald F. Hess, Symposium: The State and Future of Legal Education: Blended Courses in Law School: The Best of Online and Face-to-Face Learning?, 45 McGeorge L. Rev. 51 (2013). (Note on a separate resource: coauthored with Michael Hunter Schwartz and Sophie Sparrow, Professor Hess’s book Teaching Law by Design [Carolina Academic Press 2009] has helped me more than any other single source in designing and teaching my courses. It should be mandatory reading for all new law professors.)
Professor Hess’s article cites credible authority that online teaching fosters students’ development of self-directed learning.[1] My colleague, Natt Gantt, and I have been working with St. Thomas Law School’s Holloran Center to provide tools with which law teachers can both adopt development of self-directed learning and use the materials on the Holloran Center website to achieve and measure that learning outcome.[2] We had not, however, focused on the strengths of online teaching as a means of achieving self-directedness. Perhaps it should have been obvious to me that, if a student knows that she will be expected to actively participate in the online class, she will take more ownership of her learning. I had to see the online format in action to begin appreciating its benefits.
Professor Hess’s article references not only interviews of teachers and students but also empirical evidence that evaluates how effectively face-to-face, online, and blended (combining face-to-face with online) instruction achieves learning outcomes. The findings offer support for online as a more effective means of achieving learning objectives than traditional face-to-face classes. However, Professor Hess cautions against exaggerating these findings because most of the empirical research did not involve on law schools (but did include graduate courses). When one compares the ability to achieve learning outcomes through face-to-face versus online teaching, however, this evidence suggests that we keep an open mind. When comparing face-to-face teaching with blended teaching, moreover, the results show “stronger learning outcomes than did face-to-face instruction alone.”[3]
Professor Hess explains why such conclusions make sense. A well-designed blended classroom encourages students’ collaboration in the learning process. Such a class also allows students to use their strengths to their advantage while developing or improving new skills. For instance, the face-to-face class allows students who think quickly on their feet to interact with the professor and each other. Many students, however, feel more comfortable participating online, after having had the chance to ponder a prompt or post. All students, moreover, must actively participate in the process of learning.
Professor Hess’s articles sets forth General Design Principles for an effective blended class. I encourage anyone who may be teaching a blended class in the upcoming academic year to review his design principles. I am sure they will help to ensure a class is as effective at achieving learning outcomes as possible. I know that they showed me I still have a lot of work to do. However, I realize now that the effort can lead to more effective teaching and learning than in what I had come to accept as the previous norm—face-to-face classes.
[2]See, e.g., Larry O. Natt Gantt, II, and Benjamin V. Madison, III, Self-Directedness and Professional Formation: Connecting Two Critical Concepts in Legal Education, 14 Univ. of St. Thomas L. J. 498 (2018); see also Univ. o St. Thomas Law School’s Holloran Center for Leadership in the Professions, Competency Milestones: Self-Directedness, https://www.stthomas.edu/hollorancenter/hollorancompetencymilestones.
[3]See Hess, supra, at 69 (quoting Means et al., U.S. Dep’t of Educ. Evaluation of Evidence Based Practices in On-Line Learning: A Meta-Analysis and Review of Online Learning Studies 28 (2010).
The author proposes that law professors teach legal writing intentionally designed for the digital reader.
The proposed framework uses visual design elements and digital functionality to overlay traditional structures of legal writing. Writing for the digital reader addresses the challenges of reading on a computer screen and amplifies best practices for legal writing. The result is a conceptual framework for written communication that helps bridge the gap between the writer’s “intention” and the reader’s “attention,” regardless of medium (paper or digital).[1]
The COVID-19 pandemic and the move to online learning by law schools has exposed the pre-existing need to incorporate writing for the digital reader as part of the fundamental framework for teaching legal writing across the law school curriculum. Digital writing represents a “best of both worlds” approach: to write well for the digital reader is to write well for the paper reader.
Digital writing does not replace the creative, human writing process, complex narrative and analysis, or the role of “old school” technologies in that process—for example, pen and paper. Similar to the difference between a paper and digital map, writing for the digital reader adds dynamic dimensions that enhance communication between the writer and reader.
Writing for the digital reader meets today’s law students, who are mostly “digital residents,” where they are. It facilitates “adaptive transfer” by encouraging all students to draw on their learning experiences, including oral and written communication. It is a bridge for students from their lived experiences in the digital age to the unfamiliar landscape and structures of legal writing and analysis.
Writing for the digital reader prepares law students for contemporary practice: “Lawyering in the Digital Age.” In legal education, the shift to digital technology, according to Professor Conrad Johnson, “transforms the way we practice traditional lawyering skills and requires us to teach the new skills of contemporary practice.”[2] Writing for the digital reader is an example of a contemporary approach to a traditional lawyering skill.
The author hopes to encourage law professors and law schools to help reshape the teaching and practice of legal writing to better reflect the reality of lawyering in the digital age. Law professors can use the checklist below to get started.
2. Why law professors should teach writing for the digital reader.
Written communication is a core lawyering skill for law students: in many ways, to be a lawyer is to be a writer. The fundamental concept of legal writing, and how it is taught in law schools, should reflect the reality that the audience will likely be reading on a computer screen. This includes the full range of professional writing that law students will learn and do while in law school and as lawyers.[3] Even writing that may have to be printed and read on paper, for example, “know your rights” materials and communication to clients who are detained or incarcerated, will benefit from a “digital writing” approach.
Scholarship on visual design and the impact of digital technology on legal writing provides a theoretical and practical basis for shifting our notion of a legal document from paper to digital. For example, Professor Ruth Anne Robbins, in her 2004 seminal article, Painting with Print, and in her 2015 work with Professor Steve Johansen, Art-iculating the Analysis, made important connections among visual design techniques, legal writing, and lawyering strategy. Professor Kirsten Davis, in her 2014 article, The Reports of My Death Are Greatly Exaggerated, asserted that “all legal reading is rapidly moving to on-screen legal reading.” Professor Ellie Margolis, in her 2015 article, Is the Medium the Message? observed that, “[T]urning the traditional, linear, text-based brief into a multidimensional e-document is a key example of how the medium changes the message and suggests that it is time to rethink that classic legal document.”
Lawyers no longer have a choice about incorporating technology into their practice and ABA Model Rule 1.1, Comment 8 requires that lawyers understand the risks and benefits of technology as part of the duty of competence, and ABA Formal Opinion 477R provide guidance about the lawyer’s duty to make “reasonable efforts” to secure confidential client information when using technology to communicate.
Any form of legal writing, broadly defined, can be transformed from “paper” (two dimensional) to “digital” (multi-dimensional) with modest changes in design, structure, and functionality. Writing for the digital reader incorporates, accentuates, and builds upon the components, structures, frameworks, and techniques that are effective for the paper reader. Digital writing can be adapted by law professors because particular elements or tools can be overlaid, sprinkled or infused regardless of the particular document, assignment, class, or module.
Law students can use a visual design approach to both construct their written analysis in outlines and drafts (for example, by using organizational visuals to deconstruct complex rules or facts) and present in their final writing whatever digital elements are appropriate, depending on the purpose and context of the writing. A writing for the digital reader framework emphasizes and synthesizes the following interactive elements:
Visual design elements to organize and present information in an accessible format :
3. Our “brain on screen” explains the need to write for the digital reader.
In the digital age, we are challenged by massive information overload and multiple distractions. This heightens the need to understand how “screen habits” affect the way in which we process information and maintain, develop, or lose cognitive focus.
Reading on a computer screen (including laptop, tablet, smart phone) is associated with distraction, lack of sustained attention, and diminished comprehension. Researchers and educators fear that deep learning and meaningful comprehension are threatened as we try to read and:
To meet these challenges, we need to cultivate what Maryanne Wolf calls “cognitive patience” in our students (and ourselves) and, ultimately, a “biliterate brain” that switches effortlessly among different modes of reading.[4]
Regardless of medium, law students can develop and maintain habits of mind and strategies to compensate for diminished attention and manage information overload. Metacognition—awareness of their own learning process—will help students (re)balance and self-regulate their learning strategies and improve their ability to engage in deep reading and learning, even while using computer devices.
4. Checklist for teaching law students to write for the digital reader.[5]
Learning to write for the digital reader can help students improve their writing. This checklist incorporates practical approaches that draw on visual design, best practices in writing, and digital functionality. Professors, students, and attorneys can use it as a guide for written communication.
Meet students where they are. Most of our students are “digital residents” who have lived their entire lives in the digital age. We can help them transfer their online experiences, knowledge, and skills to academic and professional writing assignments with practical frameworks and approaches.
Begin with a reflection exercise. Ask students to reflect on their writing, including papers, articles, texts, emails, tweets, and posts.
What techniques do they use to communicate in writing online?
In more traditional papers?
What makes reading online easier or more difficult?
Writing as a process. Writing for the digital reader can help students think about their writing process.
How do they generate and organize ideas?
Do they take notes, create an outline, write in stream of consciousness, or use other approaches?
What technology do they use: pen, paper, computer, a combination of paper and computer?
Writing choices flow from content. Encourage students to focus initially on the goals of the writing and their ideas, research, analysis, and content. Thoughtful analysis, strong content, and clear objectives are the foundation for effective writing. Structure and format flow from substantive analysis.
See writing with fresh eyes. Ask students to “step back” and review an initial draft.
Do lines of text appear “bunched” together?
Does the student’s eyes “glaze over” when they are reading due to long sentences and paragraphs?
Do they have to struggle to find the meaning of text that is too dense and hard to follow?
Write to overcome screen reading challenges. Research shows that when we read on a screen, we are more distracted, less able to maintain sustained focus, and our comprehension diminishes. We can teach students how to use techniques and strategies to compensate for these problems.
Eliminate or minimize distractions. Practice focused reading in 20-30 minute blocks without checking texts, emails, or social media. Minimize notifications and any other distracting “pop ups.” Take a short break.
Headings, topic sentences and paragraphs. Encourage students to use headings and sub-headings in the early stages of writing process and, for most writing, through the final draft. This helps organize ideas and thoughts. Headings can “announce” topics or make an affirmative point. Topic sentences and concise paragraphs will also help both writer and reader.
Spacing, lines, and fonts. Be aware of spacing, lines, and font (typography). The size and type of the font will likely depend on the conventions of the assignment or genre of writing. Spaces between lines, and the length of the lines of text, can help or hinder the reader.
Use visuals and media to present information.
“Organizational visuals.” Also called “navigational” visuals, these techniques are a great starting point to help the writer’s understanding, analysis, and structure. When writing about elements, rules, and multiple items, students can express information using “tab form” to create lists with:
1. Bullets,
2. Numbers, or
3. Letters.
Graphs, tables, & charts. These are more tools students can use to communicate information. The key is to highlight content, not format of presentation. Students can use a simple table to compare and contrast information in context with practical, side by side examples.
Images, diagrams, & videos. Depending on the context, students can use multi-media to support & illustrate their analysis. Media can help students develop ideas & analysis, and also meet the goals of the assignment.
Hyperlink citations. We are so used to clicking on hyperlinks that we barely notice: they are a key difference between digital & paper writing. Writing assignments should include hyperlinks to legal citations and other resources.
Best practices for hyperlinks. Hyperlinks can help students think differently about the purposes and form of citations.
Bookmarks. Students can insert bookmarks in longer documents. These bookmarks enhance functionality. Students can use bookmarks without a full table of contents. Students can insert hyperlinks to bookmarked sections in a roadmap or introductory section at the beginning of a document.
Self-assessment. As part of the thinking and writing process, students see their piece of writing as a whole.
Is there a balance between text and space?
What visual tools are used in the writing?
Are the visual tools appropriate for the context?
Do the visual tools advance the purpose of the writing?
Continue the editing, revising, and proofreading loop. In the digital age, learning how to write for the digital reader is a necessity. Students can learn to write at the intersection of visual design, best practices in writing, & digital functionality, and also improve their screen reading. Professors can too!
5. At a glance typography for legal writing for the digital reader.
Design choice
Recommendations
Comments
Typeface or font
Baskerville Bookman Book Antiqua Calisto Century Century Schoolbook Garamond New Baskerville Palatino Times New Roman
Serif for body of doc Sans Serif for headings Any “Book” font good for legal writing (Some say avoid Times New Roman because designed for newspaper columns and not as legible)
Font size
Between 10 & 13
Depends on letter height & line length
White space (including margins)
Use expansively 1.5 as default, 1.0 and 2.0 as appropriate
Avoid bunching together text without enough space. Double space not as effective for screen reading
Headings & subheadings
Use headings & sub-headings Sentence format Arabic numerals (1.0) Arial Century Gothic Trebuchet Corbel
Use Sans Serif font for contrast Avoid: ALL CAPS, Small Caps, Cap At Beginning Of Each Word, & underline Align with left margin (do not center) Insert extra space before each sub-heading (distances from prior section, connects with related text)
Organizational or navigational visuals
Use for elements, lists, points (bullets, numbers, letters, other visual signals).
Avoid “burying” items within a paragraph. Use to complement, not replace narrative text.
Page numbers
Use p. 1 of 20
Avoid p. # alone
Length of document
Word count
Not number of pages
Line length & justification
Shorter line length (6”) (margins equal to or more than 1”) Rule of thumb: line should be 2 or 2.5 times alphabet length (52 to 65 characters)
[2] Conrad Johnson, Lawyering in the Digital Age at 308 in Bryant et al., Transforming the Education of Lawyers: The Theory and Practice of Clinical Pedagogy (Carolina Academic Press 2014)..
[3] For example, formal legal memoranda and briefs, articles, essays, emails, letters, websites, posts, tweets, blogs, “DIY” guided interviews, court forms, reports, and community education materials.
By Sara J. Berman, Director of Programs for Academic and Bar Success, AccessLex Institute Center for Legal Education Excellence
Hats off to LSAC for its important June 30th webinar featuring Berkeley Law Dean, Erwin Chemerinsky. As LSAC President Kellye Testy said at the close of the session, I too felt a longing to return to the richness of law school learning while listening to Dean Chemerinsky’s review of recent Supreme Court decisions. The session also provided a hopeful counterpart to Dean Paul Caron’s same day post, Is A LawSchool Meltdown Coming? Thank you, Dean Caron, for this critically important warning that I hope we all heed, and for the rays of light in between the cautionary notes.
Dean Chemerinsky showed every prospective law student —via a distance learning delivery system I might add — why the law and legal education are critically important—indeed vital to the future of our democracy. And, for all who watched and listened, or will do so when the video link is posted, Dean Chemerinsky’s Constitutional Law session provides irrefutable evidence that great teaching is great teaching, in any delivery mode.
Distance learning is not new. We have long been engaged in deep learning through books, movies, and educational television. How many of us first learned how a bill becomes a law or the proper use conjunctions because of Schoolhouse Rock? And, how many are learning important U.S. history lessons by singing the lyrics of Hamiltonand watching the musical online—from a distance, not “in the room where it happened.” Thank you, Lin-Manuel Miranda, one of today’s greatest distance educators!
I am a legal ed distance learning pioneer. When people question me about the efficacy of online learning in legal education, I often point to Professor Arthur Miller. Teaching in person for decades at Harvard Law School and now at NYU, and through multiple distance formats, Professor Miller has taught more lawyers, judges, and everyday citizens than anyone could possibly ever count— about civil procedure and the American legal system— through his Federal Practice and Procedure treatise, casebooks, and hornbooks, bar review, PBS series The Constitution: That Delicate Balance for which he won an Emmy, and decades of work providing legal commentary and bringing life and clarity to legal issues on national television, not to mention the lectures he recorded for the first online law school, where I served for some fifteen years as a faculty member and assistant dean.
Quite simply, anyone who categorically dismisses “distance learning” in legal education as some sort of inferior substitute has never heard, watched, or read the teachings of Erwin Chemerinsky or Arthur Miller, or any of the thousands of other brilliant law professors across this country who are right now preparing to teach superb online courses this fall. And, this is precisely what we should be doing —preparing for the fall.
In a June 30, 2020 post, former Northwestern Dean Dan Rodriguez rightly lauds Professor Deborah Merritt, “What Prof. Merritt captures well, and what I and others have tried hard to capture as we have discussed this issue privately and publicly is this: We can and should put on a full-court-press to develop and refine our remote/online teaching abilities so as to commit to giving our students an excellent educational experience — excellent in curricular content, excellent in experiential/skill-building opportunities, and excellent in the community-building that technology can assist us with, if we are diligent and strategic, energetic and empathetic.”
And, to anyone who contests the community building part of the statement above, anyone who claims that unless we are together in person we cannot really build deep and lasting connections, let us remember that history is replete with people who have fallen in love, sustained relationships, started revolutions, and changed the world through letter writing.
The week of June 30th was indeed a busy one for legal education and distance education in particular. In addition to the webinar and posts noted above, the Summer 2020 issue of the AccessLex Institute’s Raising the Bar (RTB) was published on July 1, 2020. I am proud to have founded and continue to serve as managing editor of RTB. This issue is dedicated to distance learning in legal education, and features among other content, wisdom from four visionary law school deans who are at the helm of hybrid JD programs that were educating for the 21st century prior to the pandemic. I hope that readers find the issue informative and will feel inspired to continue working to develop precisely the kind of excellent educational experience in learning that Professor Merritt envisions.
As legal education continues in part or fully online in the new academic year and until this virus is eradicated and perhaps beyond, let’s work together with the same fervor depicted in Alexander Hamilton’s writing “like he’s running out of time,” to see the virtual halls of our nation’s law schools filled this fall with the brightest, most engaged minds —students from all backgrounds who are ready to learn to protect the Constitution and to ensure that our nation remains a thriving democracy, governed by the rule of law.
At this point in time, it is too early to tell with certainty whether it will be safe and feasible to hold an in-person bar exam in early September. State and local restrictions on venues being open and limiting the size of in-person gatherings may preclude the administration of an in-person test. Amid the uncertainty over the test’s administration, law graduates are reporting that the already stressful bar exam preparation has been compounded by personal challenges ranging from their own health and wellbeing to financial hardship to increased caregiving responsibilities. Allowing a modified form of diploma privilege, as proposed in this bill, would give law graduates a reprieve from further delays in admittance, while retaining the Court of Appeals’ prerogative to set standards for the profession. Under this bill, as long as there is an extent state of Emergency related to COVID-19, the uniform system of examination for admission to practice law in New York will consist of the New York Law Course, the New York Law Examination, and the Multi- state Professional Responsibility Examination, all of which can be taken online.
Nothing in the bill precludes the State from moving forward with admin- istering the Multistate Bar Examination, meaning it can remain an option for New York-based law graduates who wish to practice law in a state other than New York. Passing the MBE, however, would not be a required prerequisite to admission to practice in New York for the duration of the COVID-19 State of Emergency.
that the Board of Law Examiners and Court of Appeals will act on their own, because they have the power to do that,” Schapira said. “But I think that this helps push the momentum. This is not something that graduates want because we don’t want to take the bar exam. This is an issue that has a real impact across the legal community and the community more generally.”
I agree. I spent a portion of yesterday trying to problem solve with a brilliant, hardworking, ethical and professional law graduate and accepted bar examinee. This student also excelled in clinical practice. Like other examinees, this immune compromised student, who is normally efficient, excellent at focus and time management, and extremely organized is being distracted from bar study by
trying to keep up on what is safe to do as the virus surges again
changing bar expectations and information across the country
concern about friends and family who live in other states
Rent issues while studying for the bar in a safe appropriate place in the Capital NY Region
Figuring out when to move to a more expensive city where a more challenging living situation but good job is waiting
Fear that NYS will once again punt making a hard decision by delaying exam dates until October which continues unemployment for this graduate and many others.
It is time to provide certainty and provide New York law graduates with a diploma privilege tied to other indicators of professional promise as outlined previously on this blog here and here.
In support of a few different projects, I recently asked my summer research assistant to do a comprehensive review of Legislation and Regulation and Administrative Law course requirements at ABA accredited law schools in the United States. The completed list (please see file below) updates one most recently compiled by Professor Ed Richards at LSU Law School.
At this juncture, over 30 schools require JD students to take a Legislation and Regulation course (or a similarly titled course focused mainly on the role of statutes and regulations in contemporary law). At almost all of those schools the course is offered in the first year. A handful more require a course on just legislation, statutory interpretation, or the like. In addition, about ten schools impose an upper division requirement to take Administrative Law or a comparable course.
Now, perhaps more than ever, additional schools should seriously consider adding Legislation and Regulation or Administrative Law requirements. Each of the two big crises facing our country today provides yet another example of the centrality of the regulatory state—as opposed to the common law—in our legal system, thereby reinforcing the importance of exposing all law students to the fundamentals of legislation and regulation.
First, the varying government responses to the Covid-19 pandemic are acute illustrations of regulatory trade-offs—the kind that administrative agencies in numerous sectors of our society grapple with all the time: Benefits to the economy produce a cost in human life; benefits to human life produce a cost to the economy. Also, what authority do governors, health departments, and other relevant agencies have, many law students might wonder, and how did they get that authority?
Second, as to issues of police brutality and racial discrimination, the law’s response largely has come and will come in the form of legislation (or ordinances at the municipal level) and regulation. City councils consider fundamental changes to police departments, while state legislatures and Congress debate various other policing reforms. Police commissions and review boards, which are administrative agencies, are under scrutiny. Even the judicially-created doctrine of qualified immunity, which almost always insulates police officers from liability in civil suits, may very well endure in its present state unless Congress passes a statute modifying or eliminating it.
Fundamental concepts and processes of our regulatory state, several of them center stage in the issues of our day, are the focus of required courses at the various schools on the list. May that list grow each year moving forward.
On behalf of Josephine Ross, Professor of Law at Howard University School of Law, Author of forthcoming book “A Feminist Critique of Police Stops” (Cambridge University Press, anticipated publication date mid-January 2021)
I was invited to post a blog because I have been working on a book about policing while all around us, the protests are changing the landscape. This is mostly figurative, but in some cases it is literally changing, as the streets in DC are now painted with Black Lives Matter = Defund the Police.
So I’ll start there, with the slogan “Defund the Police.” I’ve been grappling with whether the phrase feeds into the hands of Republicans by scaring people who should be allies. Why not use “Reimagine Policing” instead? Is defunding the police saying something different than reimagine? For white people like me or, as Ta-Nehisi Coates writes, “Americans who believe they are white,” we are called right now to support the dismantling of the racist power structure, the system that led to the death of Eric Gardner and George Floyd, of Trayvon Martin and Ahmaud Arbery, of Sandra Bland and Breonna Taylor. There is no sitting on the fence. In that vein, I invite us to think about what the slogan means.
Whatever its drawbacks, the slogan has already spurred some changes. The Minneapolis City Council unanimously passed a resolution to “replace the police department with a community-led public safety system.” This involves reimagining policing for sure, but it defunds the old in order start fresh, with different personnel and structure, with anti-racist professionals.
Calls to defund also force us to look at how police departments waste taxpayer money. My book builds on stories my students told me about their encounters with police. Howard law students told me about being stopped and frisked or pulled over for driving while black. None of their encounters helped make our communities safer. Stop-and-frisk is a form of sexual harassment. Just like unwanted touching at work, people who have been stopped repeatedly by police feel vulnerable just walking down the street. Repeated stops create a hostile environment, but it’s easier to quit a job to avoid a boss than it is to avoid the police. I call for the abolition of the stops and frisks (without probable cause) and argue that Terry v. Ohio was built on a lie. No more stops without probable cause. No more consent stops. No more patting people’s groins, pretending that’s where they might have hidden a small weapon that they will pull out while the officer talks to them.
When I talked to people outside the law school about what I was writing, I was often asked what would replace stop-and-frisk? The answer is nothing. Reimagine policing without harassment. The slogan “defund the police” speaks to this too, for why pay money for a system that subjugates us? If an organized patrol was set up to wolf whistle at young women on the street or harass women at work, we would call for them to be defunded. We would not seek retraining and education. We would dismantle it.
I think there’s still a need for a police-like agency that’s given a monopoly on violence. This unit must respond quickly to calls of rape or home invasions. Some type of detectives must investigate murders. The question is whether this police-like structure can be created from the same institutions that shot Philando Castile and kill approximately one thousand people each year. I remember when a Howard Law School student complained to me that “officials talk about blacks regaining trust as if we had trust before. We never had it.” It might be easier to build trust by defunding the old and creating something new.
I confess to writing Defund the Police on a sign before standing at the busy corner where my white neighbors stand (6 feet away) at 6pm to show support for the protesters. I figure that most law professors think they do more by writing and teaching. But I think it’s important to support our students, especially our black students, by adding our bodies to the sea of people calling for real change, not just the same lipstick job that’s been going on since Rodney King’s beating in 1991. I chose the Defund the Police sign because it pushes the envelope and forced me to really think about the slogan. I recommend taking some action no matter what your deadline and no matter what you draw on the cardboard. It makes us feel part of something bigger than ourselves.
Jennifer S. Bard, Visiting Professor, University of Florida, Levin College of Law
For the last half of spring semester 2020, law schools all over the country were forced to change their method of instruction, delivery of final exams, and (in many cases) grading practices because of the demands for physical isolation following the outbreak of Covid-19. Now that the semester is over, there is a further round of disruption as many states have delayed or even cancelled their bar exams, some have granted graduates diploma privileges, while others bravely go ahead in the face of a possibility that they will have to cancel at the last minute because of ever-rising rates of infection.
Like the opportunities that may arise when a river is drained and a ship revealed, there may never again be such an opportunity for us to consider what role we play in the glacially slow diversification of the legal profession and how we can make our law schools more equitable, inclusive, challenging, and effective for all of our students—not just those for whom it has been particularly well suited.
With many things to choose from, my starting point for looking at things we rarely question is the marrow deep belief that we owe it to our students to sort them for the benefit of large law firms—even when our employment profile shows that very few of our students will ever work at such a place. Since the threshold for this opportunity is a top 5 or perhaps 10 percent class rank, it may seem odd, on reflection, that we have designed a curriculum designed to compare students that may have many undesirable consequences including undermining self-esteem, discouraging learning for learning’s sake, and contributing to the lack of diversity in the legal profession.
Over the years, other justifications have been added such as the need to motivate students or assess their progress but never have we had such a good opportunity to see what law school is like without grades or, more to the point, comparative curves.
Here are some Practices We Might Question
The Primacy of First Semester Grades
One result of the decision to go pass/fail (or some variation of the words) was to “freeze” first year first semester class ranks because it was impossible to produce comparative curves.
The resulting phenomena gives us a chance to ask ourselves some tough questions:
Do First Semester Grades Reflect What Students Bring to Law School Rather Than What We Bring to Them? OR Do Students Who Come in Knowing the Rules Get Better First Semester Grades?
Certainly many of our students do know the game from the start. The recent AALS survey “Before the JD” found a disproportionate number of students who ended up going to law school had parents who were either lawyers or professionals. While students have, themselves, created organizations to support each-other usually with the enthusiastic support of the law school it may not be enough.
Our challenge going forward is that history is told by the victors. We can see the students who were not comfortable the first semester but then continued to graduate “at the top of their class” (a vague term that usually means somewhere in the top 20%), but we don’t hear from the ones who didn’t draw attention through academic distress, but also didn’t thrive.
It would be helpful to know more–and many schools do know more about their own students. But so little of this information is published.
But how much more effective would it be to have a curriculum that was truly equitable and inclusive – all the way through?
2. Did Pass/Fail Grading Help Learning, Hinder Learning, or None of the Above?
Across the board pass/fail grading that makes no effort to compare students to each other is so unusual as to make any observations worth considering. The expectation was a distressing list of bad results-students putting in less effort during class, performing worse on exams — but did that really happen?
3. Ditto Open Book Exams
As above, it would be interesting to test, in the fall, the content knowledge of students who took open exams. Not so much as to compare them with past classes, but to see what how much they learned.
4. What Will Be the Long Term Effect of the Delayed or Cancelled Bar Exams–and How Might that Change Our Curriculums?
The opportunity presented by the necessary changes to the bar exam is already in very good hands, (thank you AccesLex) but it’s still worth considering what the future will look like in states which choose provisional or full licensure. Even decisions to delay the bar exam could raise issues of an on-going, career long licensing process, much as many doctors (but not all) must take requalifying exams every ten years to retain their “Board Certificate.” What would that mean for law schools?
To Be Continued: Part II: What Can We Learn from the Delay of Fall On-Campus Interviewing?
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Best Practices for Legal Education 