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.
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.
Posted on July 9, 2020 by Melanie Daily, University of Kansas School of Law
At law schools across the country, we are grappling with how to respond to internal and external conversations about the role of the legal profession in addressing structural racism, white supremacy, and racist policing. At CUNY Law School, Black faculty and non-Black faculty of color recently drafted and published a Statement and Demand for Action that was endorsed by the full faculty. The impressive and comprehensive statement outlines action steps, policy demands, and faculty dynamics that must change, addresses CUNY’s problematic relationship with the NYPD, and pushes for specific action to create an anti-racist campus.
As we collectively consider the path forward, what steps in CUNY’s plan resonate? What similar discussions are taking place at other law schools, and what is changing? Let us know in the comments.
Full text of the statement appears below this line:
Statement and Demand for Action to Create an Anti-Racist Campus
By Black Faculty and Faculty of Color at CUNY Law
June 30, 2020
Black Faculty and Faculty of Color of CUNY School of Law issue the following statement, endorsed by the full faculty. We believe unequivocally that Black Lives Matter. We grieve with the families of Ahmaud Aubery, Rayshard Brooks, George Floyd, Tony McDade, Breonna Taylor, and every victim of anti-Black violence. We stand in solidarity with those who are demanding justice for their deaths, and who are fighting to dismantle white supremacy in all its forms, and specifically, systemic anti-Black racism. We join in solidarity with those in New York City and around the country who are challenging not only structural racism and racist policing, but anti-Blackness and racism in all of our institutions. The legal academy, including CUNY School of Law, are not exempt from these legacies of slavery and subjugation.
Statement and Demand for Action to Create an Anti-Racist Campus
As Black and non-Black faculty of color, we support the Movement for Black Lives Policy Platforms and stand in solidarity with the movement to defund and abolish police and redefine public safety and accountability through non-carceral investments in Black communities. Accordingly, we reject reforms that preserve the status quo. As lawyers and educators, we acknowledge our profession’s history of upholding white supremacy and thwarting these demands. However, we are also uniquely situated to further them. Below are preliminary areas in which the law school must work in furtherance of these goals:
Our role in the legal profession: We heartily embrace the dual mission of our law school — to facilitate access to underrepresented communities historically excluded from the profession by white supremacy, and particularly anti-Blackness, and to act as an entrée into providing legal support to communities fighting against systems entrenched in white supremacy. Our view of social justice calls for a complete reimagining of the state and society. Accordingly, we seek to serve those students who will genuinely and fearlessly pursue transformative racial and economic justice.
We uplift and honor the legacy of W. Haywood Burns, the first Black law school dean in New York State, who was also the second dean of CUNY School of Law and tirelessly fought for Black liberation in and outside of the walls of CUNY Law. We are cognizant that among the central tools of oppression under white supremacy is the law, particularly as meted out by police, military and prosecutors of all stripes — be they police who criminalize or cage, police who alienize or deport, or purportedly protective agencies who demonize or separate families.
As Black and non-Black faculty of color, we are committed to dismantling these tools of oppression through a pedagogical approach that deploys critical and radical analyses to challenge our students and by offering a robust and humble praxis in service of movements that seek transformative and restorative justice. We further reiterate the importance of affirming CUNY Law’s dual mission, from admission to graduation and beyond, through a commitment of institutional self-reflection that is unflinching, inclusive, and continual.
Curriculum: Black students routinely call on the CUNY Law faculty to recognize and confront the negative impact that the traditional legal curriculum has had on Black students. We call on faculty to acknowledge the concerns of students of color and incorporate the feedback into their teaching.
To work towards becoming an anti-racist campus, we demand that, starting in Fall 2020, faculty mobilize pre-existing resources like the Race, Privilege, and Diversity and Professional Development committees toward educating ourselves across the administration and faculty — including adjuncts, visitors, tenure-track, and tenured faculty — on anti-Blackness, racial capitalism, state overreach into communities of color and abolition movements, particularly by engaging with work authored by Black people, incorporating critical frameworks like critical race feminism and queer theory, disability justice, abolition, and decoloniality, among others, throughout every course, and centering intersectional Black perspectives in the classroom.
To achieve these goals, we demand that CUNY Law provide the material resources so that all faculty may take the time necessary to engage in this learning and unlearning. To ensure accountability and transparency, we demand that these committees and others apprise the full faculty in writing each semester on their progress and any challenges encountered in this process.
Non-Curricular Policy Points
The various departments that constitute the law school make powerful choices that should be calibrated to center and uplift anti-racist objectives. We demand increased outreach to Black and non-Black students of color in admissions by the career planning office and heightened engagement with Black and non-Black alumni of color. Understanding that internships and initial jobs are key to a student’s ability to practice law over the long-term and practice in the frontlines of social justice movements, we also demand that the career planning office provide increased support to Black and non-Black students of color, particularly first-generation higher education students, whose resumes and cover letters can and should reflect the valuable perspectives and skills that each of our students has to offer the legal profession. We call on the relevant committees to report back on these developments to the full faculty in Fall 2020.
For too long we have participated in maintaining barriers to the legal profession even as we seek to break those down. Accordingly, we demand that, starting Fall 2020, the minimum LSAT requirement for all scholarships, including the Graduate Fellowship, be abolished and that the law school keep records of and make public the distribution of scholarship and summer fellowship funds by race. Similarly, we demand that admissions data collection be expanded beyond the required ABA categories to include more detailed, granular, and less reductive categories to better account for the multiple and diverse identities our students bring to the school. We call on the Admissions committee to report back on these developments to the full faculty on a bi-semesterly basis.
CUNY Law offers the services of a Nurse Practitioner and Mental Health Counselor on the premises, but otherwise, students are not offered health insurance and are instead invited to enroll in Medicaid programs during open enrollment each period. The limited resources made available are not sufficient for CUNY’s student body. Particularly given the dynamics described above, we call on the law school to consider allocation of funds to mental health services and other medical insurance.
Some of our academic standing policies — such as the threshold for academic probation — have a disparate impact on Black and non-Black students of color. We demand that those policies be immediately reconsidered and amended. We call on the Academic Standing committee to report back to the full faculty on these developments on a bi-semesterly basis.
We reiterate the importance of the role of Black and non-Black faculty of color on the faculty appointments committee. We call on the Committee on Committees to report back to the full faculty on developments to this end in Fall 2020.
Like many law schools, CUNY Law relies on faculty with non-secure positions for critical teaching positions. Our adjunct, visitor, instructor, and other non-tenure track faculty contribute immensely to our institution yet lack job security, opportunities for training and development, and other benefits that permanent faculty enjoy. We demand meaningful job security for our colleagues in these positions, especially Black and non-Black faculty of color. We call on all relevant committees to report back to the full faculty on progress to this end in Fall 2020.
Faculty Dynamics
Invisible institutional service and labor of Black and non-Black faculty of color: In 2019, 88% of lawyers were white and in 2018, 8 out of 10 law professors were white. CUNY School of Law boasts a more racially diverse faculty. We especially acknowledge the school’s laudable efforts to bring ten faculty of color, including 4 black faculty, onto the tenure track in the past 3 years alone. Nonetheless, we must do more to dismantle anti-Blackness in our governance. Black and non-Black faculty and staff of color, both at CUNY Law and throughout the U.S., routinely perform unrecognized labor beyond their job descriptions and in the service of their institutions, to confront anti-Blackness and other forms of racism. A wealth of research shows these contributions both sustain diversity and inclusion efforts in the academy and create additional demands that detract from the time required for fulfilling traditional expectations of all faculty.
Faculty of color devote significant time to mentoring and supporting Black and non-Black students of color, ensuring that our institution can retain the most marginalized students after they matriculate. We advocate explicitly and in more personalized ways for Black and non-Black students of color, who suffer regular indignities, while we also abide microaggressions from colleagues, the profession, and indignities from broader society ourselves. We disproportionately bear the burden of ensuring equitable distribution of labor among faculty and scholarship and fellowship awards among students.
We highlight the lack of recognition (both in salary/pay and formal acknowledgement through evaluation, tenure, and promotion standards) of the amount of invisible institutional service and labor that Black and non-Black faculty and staff of color contribute to the law school. We demand that similar to our institution’s commitment to recognizing advocacy work product as scholarship, CUNY Law change provisions in promotion, hiring, assignment to and distribution of labor on committees, and tenure policies to honestly and explicitly reflect the now hidden workload of Black and non-Black faculty and staff of color. For example, we need more conscientious reappointment and annual review reporting policies and re-conceptualized categories of “teaching, scholarship, and service” across the faculty. We call on all relevant committees to report back to the full faculty on progress to these ends in Fall 2020.
Recognition of privilege and power: We note the complex conditions inherent in participating in governance discussions. We demand that faculty be mindful of their privilege and hierarchies of power and reflect on the ways in which they participate in committees, faculty meetings, and other spaces — stepping back where appropriate.
Policing: Generations of faculty, students, and staff of color have repeatedly expressed concerns about the relationship between CUNY Law’s public safety and the New York City Police Department (NYPD). We demand that any memoranda of understanding governing the role or presence of CUNY Public Safety, of the NYPD, or of any other law enforcement agency on the CUNY School of Law campus be shared immediately with the full faculty, staff, and student body of the law school. In keeping with the demands and concerns of generations of students, faculty, and staff, we’re calling on CUNY Law School to discontinue any formal or informal relationship with NYPD and reimagine campus security by supporting the safety and well-being of the people on campus through divestment from punitive policing systems and investment in alternatives, including de-escalation, conflict resolution, and transformative and restorative justice training for all faculty, staff, and designated student representatives. The Public Safety committee was explicitly tasked with addressing these issues in the Fall of 2019. We call on that committee to report back to the full Faculty by October 2020 on progress to these ends.
Finally, we stand by Brooklyn College’s Black Faculty and Staff (BFS), Faculty of Color (FOC) Group, Latino Faculty and Staff (LFSO), and other caucus groups in the CUNY system, and we adopt our Brooklyn colleagues’ statement, slightly adapted to the law school’s context, as follows: This moment in our country is the culmination of systemic denial of dignity that typifies antiblackness. As lawyers fighting for racial and economic justice, we know that structural inequality cannot be addressed through empty statements of standing in solidarity and promoting “diversity.”
We advocate a transformational solidarity with an ethos of social justice that is action- oriented. Transformational solidarity means that the systemic racism, surveillance, and austerity that have become a normal feature of society is aggressively challenged on campus. Transformative solidarity understands that struggles against domination are shared and that anti-Blackness and austerity work in tandem and must be fought hand-in-hand. This is a fight that involves Albany and state politics but it begins with us on campus. We demand a shift in the current institutional logic of the administration that urges faculty and staff to do more for our students with less. By embracing this moment of profound possibility in response to this crisis, we hope to imagine and create a life-affirming campus we do not have, but require.
Chris Adams
Beena Ahmad
Naz Ahmad
Saba N. Ahmed
Bahar Ansari
Nermeen Arastu
Ann Cammett
Eduardo R.C. Capulong
Janet Calvo
Asima Chaudhary
Natalie M. Chin
Frank Deale
Farah Diaz-Tello
Pamela Edwards
Golnaz Fakhimi
Raquel Gabriel
Mary Godfrey-Rickards
Natalie Gomez-Velez
Victor Goode
Fareed Hayat
Julia Hernandez
Carmen Huertas-Noble
Chaumtoli Huq
Tarek Z. Ismail
Ramzi Kassem
Donna Lee
Degna Levister
Julie Lim
Gregory Louis
Lynn Lu
Shirley Lung
Princess Masilungan
Michelle Pinzon
Missy Risser-Lovings
Jeena Shah
Charisa Kiyô Smith
Nicole Smith
Yasmin Sokkar Harker
Cynthia Soohoo
Rafael Varela
Shomari Ward
We call on all of our faculty colleagues to endorse this statement, mindful that such an endorsement carries with it the responsibility of ensuring the statement’s implementation.
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?
During this spring semester, legal education like nearly all education sectors, underwent an overnight revolution, moving from largely an in-person to an online delivery format. Educators have had to adapt to not only to new technologies but to new ways of communicating, adopting many new teaching and learning methods, new grading policies, and more. Understanding that many law faculty have been completely overwhelmed by having to change so much so rapidly, but knowing also that this change will continue, in all likelihood, into this summer and fall, we propose some simple steps that faculty can take to incorporate professional formation and development into online law classes, all of which can be employed in in-person classes as well.
I. Contextual Background
First, what is meant by professional formation and development? Many publications have detailed these concepts at length.[1] For the sake of brevity here, each student should demonstrate an understanding and integration of:
1. Pro-active professional development toward excellence at all the competencies needed to serve others well in meaningful employment; and
2. An internalized deep responsibility to others, especially the client and the legal system, whom the student serves as a professional in widening circles as the student matures.
There are several key principles that should guide the development of strategies that foster professional formation and development. Holloran Center scholars have been building a framework of key principles to guide the development of the most effective curriculum, culture, and assessments to foster each student’s growth toward later stages of development on the two foundational professional formation and development competencies,[2] conducting research and analyzing scholarship on (1) higher education in other disciplines, particularly medical education, (2) moral psychology, and (3) self-directed/self-regulated learning.
Four research windows agree that an effective curriculum (including assessments) that promotes the two professional formation and development learning outcomes should:
Take into account that students are at different developmental stages of growth and engage each student at the student’s present developmental stage – Go Where They Are;
Provide repeated opportunities for reflection on the responsibilities of the profession and the habit of reflective self-assessment in general;
Emphasize experiential learning, feedback on the student’s performance, and reflection; and
Emphasize coaching.
An additional research window suggests the following curricular engagements to foster each student’s growth toward the two professional formation and development learning outcomes:
5. Experiences that create cognitive dissonance/optimal conflict with the student’s current developmental stage on either of the ethical professional formation and development learning outcomes;
Instruction that helps the student understand how new knowledge is building on the student’s prior knowledge and competencies (student’s existing narrative);
Instruction that helps each student understand how the professional formation curriculum assists the student to achieve his or her goals; and
Instruction that helps each student understand and implement specific steps to grow toward later stages of development.
II. Fifteen simple questions or strategies
We need to remember that this generation of law students also experienced the Great Recession of 2009-11; now they are experiencing the current crisis and will in all likelihood face yet another serious recession or more dire economic struggles ahead –not to mention health and safety related hardships. The questions/strategies below may be helpful to provoke constructive reflection and discussion, and hopefully to positively channel at least some important concerns about moving forward in their professional lives in this challenging context.
The following are questions that a professor can pose to students to spark self-reflection and awareness about professional formation and development:
“Assume you meet a lawyer who could be important in your employment search and the person asks some version of, ‘What did you learn in this crisis?’ Write a brief answer to this question –or record a brief video of yourself answering this question.”
The teaching opportunity suggested with this writing prompt is to provoke thoughts about this underlying query: “What did you learn that would be useful to an employer?” Thoughtful answers would go toward versions of I learned adaptive capacity skills, perhaps with words such as: a) “I learned that I know how to figure out solutions to a host of unanticipated changes and challenges,” b) “I made X changes to adapt to Y challenges.” Or, c) “Actions I have taken so far and/or will take to adapt and eventually thrive, even in the face of many challenges, include Z].” Student answers might include specific examples of “grit,” “resiliency,” and positive or growth mindsets that helped them through pandemic-related challenges offering evidence that the student would demonstrate similar resilience as a future professional.[3] Note: where students video themselves, they are also simulating how they might orally respond to such a question in an interview.
Same situation as in the first query but posing this question: “What did you learn about the organizations, businesses, or business sectors you observed? Write specific examples of how they reacted, adapted, or failed to do so during the pandemic.”
Talk to a person whom you know who has experienced and transcended a crucible in life and ask what they learned from the challenges going forward. As students: “What did you learn by asking the question and/or from the response? What follow-up questions did you ask and why?”
At the end of a Socratic Q & A session (in-person or online), ask students to write down any other questions they would have asked if they were the professor. The ability for students to see themselves in a professional role, here as professor, is critical to making the successful transition from student to professional.
The following are actions that a professor can take to support students while encouraging their professional formation and development:
If you are comfortable doing so, talk with your students about the crises/crucibles/difficult times in your own professional life or the life of your clients, noting what you and they learned?
Log on to synchronous online classes 10-15 minutes early or stay for 15-20 minutes after class to talk and listen to students’ comments about “life” and in particular about their professional life and concerns during this crisis. This underscores the notion that a vital part of professional life is to engage in collegial discussion; it stresses the importance of personal connection as an integral part of professional work. You might analogize “official” class time to office work time, and these pre- or post-class discussions to attending bar association meetings or receptions with colleagues. Taking just a few minutes before or after class also promotes belonging and work-life balance and underscores the importance of continuing to engage in personal and professional networking, especially as students are facing extraordinary health, financial, and psychological stress, and are forced to stay at home.
As a faculty member, attend an extra-curricular event led by the Dean of Students, the Career Services office, the Academic Support faculty, and/or an event organized by a law student affinity group, and sit in the audience if invited when LRW faculty hold oral arguments. Attend these now, virtually, and plan to attend in person when you can. Law schools host many events to help students, some of which are part of programs you strongly believe in. Theoretical support is important, but your presence (online or in person) as a faculty member, even for a few minutes, carries far more weight that you will ever know in terms of whether students take such programming seriously. This will also help students realize as future professionals how important their presence will be at law office functions, networking opportunities, and community events.
Provide extra credit in class for students who make thoughtful explicit connections between classroom assignments and any outside pro bono work they are doing or plan to do. There will continue to be limitless opportunities for meaningful pro bono work as society weathers this storm – assisting with unemployment issues, bankruptcies, evictions, and more. Share with your students (in an email, recorded message, or synchronous online class) any pro bono work you are doing or examples of pro bono work you did in the past, noting how it has made you a better lawyer and more competent and empathetic professional.
Tell students why you went to law school, and ask them to think about why they came to law school. (You can send this as an email, post it as a discussion board exercise in the LMS, or bring it up in a Zoom or other synchronous class.) Tell them about how your purpose with respect to your understanding of what it means to be a member of the profession may have changed over the years. Is it changing now in this crisis?
For faculty involved in planning fall Orientations, think about including time for incoming students to write a Why Law School letter to themselves; collect the letters and return them to students during the summer between 1L and 2L and again before they begin bar exam preparation. Finding one’s “why” and holding fast to it are critical to success in law school, on the bar exam, and in practice.[4]
When students pose a question or answer a question in a way that demonstrates that they listened to (or read) a previous student’s comments and integrated those comments thoughtfully into their new question or comment, the Professor can drop an email or instant message note saying, “The way you asked (answered) this question shows you listened carefully to your classmate’s comments (or listened to and recalled a dialogue from one of our last classes). That’s great! Critical listening (or critical reading) skills are among the most important qualities of a successful lawyer. As just one of many examples, you might well find yourself in the position of eliciting more important information and posing better, more thoughtful follow-up questions because you critically listened to a witness’s answers in a deposition. Thank you again for your thoughtful question/comment. And, keep developing this important skill.”
Little time is needed to reinforce and praise professional behavior and the demonstration of critical lawyering skills; the potential for positive impact on student engagement, well-being, and learning, in addition to on their professional formation and development is great.
Professors can also help students improve listening skills by periodically stopping class (in-person or in a synchronous online class), for example after you have posed a question, and asking students to write down what you just asked (noting whether they believe they heard and understood your question) and then email you their answers. Collect the answers and choose some to read or post, anonymously. Warn students in advance that you will be doing this. And, be transparent about the nature and purpose of this assignment: to encourage individuals to sharpen their own listening skills. You can also use this exercise as an opportunity to explain the purpose of questions generally in the law school classroom – that they center not just on the 1-on-1 between professor and student, but on everyone collectively listening carefully (or reading questions posted on bulletin boards), just as they will need to listen to clients, colleagues, and witnesses. (Similar exercises can be useful to help students train critical reading skills.)
Distribute (via email or on a discussion board) a master list of the key skills/qualities of competent lawyers (for example from Schultz and Zedek or IAALS) and/or note (in live class, by email, or on discussion board) a few of the key skills/qualities that you believe the work you are doing is helping to train during each class so that students can “check in” and ask themselves if they are honing these skills. Reading such practice-minded lists will empower students who are building certain skills but still working on others to continue to believe that they “have what it takes” to become competent lawyers. (You might also ask students to consider which competencies are most relevant to help clients in a crisis.)
Bring guest speakers to online and in-person classes, such as practitioners who can talk about the entire range of competencies needed in the various areas of practice.[5] Guest faculty can also provide insights into differing perspectives on parts of your courses. CALI.org has posted a list of professors willing to Zoom into classes as guest lecturers at https://www.cali.org/content/guest-speakers-available-remote-teaching-law-school-courses-coronaviruscovid-19
When/if you give formative assessments (in-person or as part of asynchronous or synchronous online learning), make explicit which of the lawyering competencies each assessment is measuring – how and why. Provide concrete examples of the transferability of skills from success in law school and on the bar exam (where applicable), to success in law practice and as professionals.
Give a talk (in a synchronous online class or in a recorded message), before the end of the semester if possible, or during this summer, to try to blunt the pain that the law school curve can bring and to encourage all of your students to feel that they belong. Even though many schools have changed the grading policies to pass/fall for the spring 2020, many students will be even more concerned about their law school GPAs and their potential impact on future employment. Now more than ever is an important time for students to read the Roadmap.[6]
There is no one right message; this has to be authentic for each professor. But, an example might include something like, “You are all used to getting A’s. You cannot all get A’s in law school. What you can all do is your best, and can and must, as professionals, engage in continuous learning and improvement. If your grades and/or comments on exams do not reflect the quality of work you will need to be doing to best serve clients when you graduate, please talk with me; ask me to review your exams and help you determine how to improve. The career path of great lawyers involve continuous improvement. Your goal is to be a lifelong learner.”
III. Conclusion
As noted at the outset, the authors applaud law faculty nationwide whose nimbleness served as irrefutable evidence of a collective dedication to students and to the continuity of graduating future leaders who will protect the rule of law. The suggestions in this paper are merely that, thoughts on some simple steps to incorporate professional formation and development into online law classes. The authors hope that these suggestions spark ideas for faculty to adapt as they choose, and that a discussion will continue to further develop both additional simple steps and more comprehensive programming on professional formation and development in online and in-person formats, as we weather the storms resulting from and adapt to changes required because of the 2020 pandemic.
The authors are available to discuss these further and encourage readers to contact the authors with additional strategies for integrating professional identity formation into legal education. This list will be updated and available on the Holloran Center website.
Sara J. Berman, Director, Academic and Bar Success Programs, AccessLex Center for Legal Education Excellence; formerly held Assistant Dean and Director positions Whittier and NSU Law Schools, and served as faculty and in senior administration of nation’s first fully online law school. SSRN author page
[2] These general principles here appeared first in Neil Hamilton, Formation-of-an-Ethical-Professional-Identity (Professionalism) Learning Outcome and E-Portfolio Formative Assessments, 48 UNIV. PACIFIC L.REV. 847, 856-59 (2017).
[3] Neil Hamilton includes many additional strategies to help students and for students to help themselves to pave the way toward developing meaningful employment opportunities in Roadmap: The Law Student’s Guide to Meaningful Employment, Second Edition (ABA Publishing, 2019).
[4] Purpose-driven learning is a cornerstone of bar success, as Sara Berman writes in the introduction to Bar Exam Success: A Comprehensive Guide (ABA Publishing 2019).
[5] Inspired by her civil procedure professor who brought a journalist to class to discuss the differences between the types of questions lawyers ask and those that journalists ask, and why, providing an engaging deep dive into the importance of facts generally, author Berman regularly invited police officers to her in-person criminal procedure classes and a family court judge to her online community property classes, which resulting in The Courtroom Comes to the Classroom, a collaboration between Professor Berman and Judge Mark Juhas.)
Q: Introduce yourself! What’s your name/class year/any extracurriculars/area of interest/etc.? A: Olivia Cox, 2021, Executive Editor of Albany Government Law Review, Vol. 14; cello teacher/teaching artist for Empire State Youth Orchestra’s CHIME program.
Q: Can you give us some background on what the Wellness Initiative is and how it got started? A: In 2018, the Wellness Initiative was establish to raise awareness of issues related to health and wellness, provide resources for members of the law school community who are dealing with issues related to mental health and wellness and provide educational programming related to mental, physical, social, financial and academic health and wellness within the law school community. The Colby Fellowship was created to allow students the opportunity to participate in various wellness based activities, provide resources to students, and to help bring greater awareness to the importance of a holistic, balanced lifestyle. The Colby Fellowship is named in honor of our generous donor, Trustee Andrea Colby ’80.
Q: Why did you choose to get involved in the Wellness Initiative and become a Colby Fellow? A: Wellness/Mental Health has always been very important to me. I have always believed that all my accomplishments are for naught if I don’t have my health. This sentiment seems to be lost in the law school environment due to its competitive nature. I hope our events and Blog remind students of the importance of mental health and wellness, especially during law school.
Q: What has the Wellness Initiative done this year at Albany Law School? A: This year, unfortunately, was cut short by the COVID-19 pandemic, but that has not stopped us from soldiering on with our wellness programming. We have held several yoga/meditation classes, hosted speakers, including Brian Cuban, and various relaxing activities during finals.
Q: What is the Wellness Blog? What kinds of topics have you written about and what do you plan to write in the future? A: The Wellness Blog is Albany Law’s central hub for wellness tips, resources, updates, upcoming events and more. We’ve posted a Q&A with a yoga teacher, volunteer opportunities, and about various events we have hosted. However, the Blog is getting a lot more traffic since the onset of COVID-19. We have been compiling and posting all sorts of resources, in addition to posts from guest writers about how best to work/learn from home.
Q: What’s your ultimate goal for the Wellness Blog? A: I hope that students will enjoy reading the Blog as much as I have enjoyed writing the Blog. I hope it becomes “one of those things” that students check often, like Canvas or TWEN.
Q: Who can post to the Wellness Blog? A: Anyone! Currently, it is primarily Carly and I creating content for the Blog. However, we welcome contributions from anyone and everyone. Professors, students, and faculty alike are all welcome to post on the Blog. Just send us your article/post and we will post it!
Q: Do you have any advice for other schools that might want to start a Wellness Initiative? A: “If we build it, they will come.” It sounds cliché but it’s the truth. At first you may not have many participants, but over time more students will become interested. Mental health and wellness are often put on the back burner during law school, but that is when it is the most important.
Albany Law School established a Wellness Initiative, which is currently run by Carly Dziekan ’20, Olivia Cox ’21, and Rosemary Queenan, Associate Dean for Student Affairs. As part of the initiative, the team created the “Rise in Wellness Blog” – a blog devoted to health and wellness. Every week, the blog posts resources, wellness tips, updates, and upcoming events. I “virtually” interviewed Carly and Olivia to find out how the Wellness Initiative and Rise in Wellness Blog got started (“Part 1” will cover Carly’s interview and “Part 2” will cover Olivia’s interview).
Q: Introduce yourself! What’s your name/class year/any extracurriculars/area of interest/etc.? A: My name is Carly Dziekan and I am a 3L at Albany Law School and one of the Colby Fellows for the Wellness Initiative. I am also the Editor-in-Chief of the Albany Law Journal of Science and Technology. In my free time, I enjoy running, biking, and recently started kickboxing! Especially in light of this pandemic, it is even more important to take care of yourself physically and mentally as best as we can.
Q: Can you give us some background on what the Wellness Initiative is and how it got started? A: The Wellness Initiative started in 2018 by a recent graduate who saw a need for an administrative initiative devoted to law student mental health, wellness, and overall wellbeing. The administration and the students then took on the ownership together and it has been growing ever since! This initiative is still very new, so we are open to any and all suggestions!
Q: Why did you choose to get involved in the Wellness Initiative and become a Colby Fellow? A: Law school is a challenging time in so many ways, and it challenged me in ways I never expected. I am very lucky to have an incredible support system and to have already had coping mechanisms and wellness habits grounded in me before law school. Even so, I still struggled. I was excited to become involved in the wellness initiative to help other students who may not have had the experiences I have had, and to show them that help is out there is they need it and we are here for them.
Q: What has the Wellness Initiative done this year at Albany Law School? A: This year, we have had monthly yoga class on campus (and now via Zoom), a Mental Health Week in honor of World Mental Health day, an impactful keynote speech by Brian Cuban, programming for 1L students discussing the stress of finals, and other educational and recreational wellness centered events.
Q: What is the Wellness Blog? What kinds of topics have you written about and what do you plan to write in the future? A: The Wellness Blog really turned into a way to update students with COVID-19 resources. Now more than ever, wellness and mental health in law students is a huge issue. (Rest of the answer morphed into the question below)
Q: What’s your ultimate goal for the Wellness Blog? A: The idea of the blog started when I got a flat tire and didn’t know where to get it fixed as I am not originally from the Albany area. It got me thinking: how many people are having this problem? I wanted to create a central location where students could get information on various resources in Albany, from gyms, to restaurants, to car mechanics, to mental health resources. Another goal is to also highlight all of the work we are doing on campus related to wellness as well as what other schools and organizations are doing.
Q: Who can post to the Wellness Blog? A: The Colby Fellows run the blog, but anyone can contribute! Send Olivia or I an email and we would love to have others write a piece.
Q: Do you have any advice for other schools that might want to start a Wellness Initiative? A: Don’t get discouraged. This work is so important and necessary but it takes some time to gain traction. Sometimes, even if an event isn’t well attended or no one “responds” to your post, trust me, people read it or heard about it and it impacted someone. Which is what really matters. Now that the initiative has been around for a bit, more students are aware of the work we are doing and much of it has been de-stigmatized.
On April 4, 2020 the New York State Bar Association once again delivered a resounding thumbs down to the Uniform Bar Exam (UBE) as a measure of competency to practice law in New York. Five years earlier, the Association’s Committee on Legal Education and Admission to the Bar delivered a report that was overwhelmingly approved by the House expressing the sense of the profession that a move to the UBE was a bad idea.
The NYSBA Committee on Legal Education and Admission to Bar (CLEAB), which had long studied the bar exam, hosted a session during the annual meeting on January 16, 2019 titled, “A Question of New York Law: Should It Be Taught in Law Schools and Tested on the Bar Exam?” A preview to that discussion, “The Role of State Law in Legal Education and Attorney Licensing,” was published in the New York Law Journal the week prior. In April 2019, the NYSBA Task Force on the Bar Exam was appointed by President Michael Miller, “to investigate and report on the experience and impact of New York’s adoption of the UBE.” Then president-elect Hank Greenberg stated, “New York law has long been the gold standard in American jurisprudence. The bar exam should play an important role in ensuring that newly admitted lawyers appreciate the importance of New York law, and have an appropriate grounding in it.”
On March 5, 2020, following a series of statewide hearings on the bar exam, the Task Force, chaired by the Honorable Alan Scheinkman, Presiding Justice of the Appellate Division, Second Department, released its report and recommendations. The report contains an accurate and detailed description of meetings, stakeholders and the decision-making process that ultimately led the New York Court of Appeals, under the leadership of former Chief Judge Jonathan Lippman, to abandon the New York Bar Exam (NYBE) in favor of the UBE; and the report starkly concludes that “…since the adoption of the UBE, the fundamental purpose of the bar examination has been lost.” (emphasis added)
Accompanied by analysis of findings and explanations to support their positions, the Task Force made the following recommendations to chart a path forward for the licensing of new attorneys in New York:
Eliminate the New York Law Exam and replace it with a rigorous exam on New York law as a prerequisite to admission to the New York bar.
Conduct an independent psychometric analysis of the grading and scaling of the UBE.
Allow those who do not wish to practice law in New York to take only the UBE and allowing those who only wish to practice in New York to take only the Multi-State Bar Examination section of the UBE and the rigorous New York test.
Consider a New York law Certification program that would allow people to forego the bar exam entirely. Under this program, ABA-accredited law schools inside and outside of New York would offer courses that include New York law-based content.
Consider an experiential learning pilot program, which would allow second and third-year law students to spend time counseling clients, working with practicing attorneys and learning other practical skills so that a portfolio of work is created and assessed every semester.
These recommendations are welcome, especially the last two items which get to the heart of what many thoughtful national experts have maintained are the more accurate measures of competency to practice law. While under normal circumstances, degree privilege plus programs that incentivize curricular choices (in this case more New York law) and require client-focused legal skills experiences are the better measures of basic competencies, the strange confluence of the timing of this report and the COVID-19 pandemic has created a fortuitous opportunity to test some of the recommendations in the report.
The fact that this Task Force was in existence and already working on bar exam issues led NYSBA President Hank Greenberg to ask the group to separately opine on the challenges surrounding the then-scheduled July 2020 uniform bar exam in New York. Greenberg has been a staunch advocate for the soon-to-be members of our profession noting, “Graduating law school students are experiencing high levels of anxiety and distress as their lives and potential livelihoods have been significantly disrupted, and we are focused on making sure that their concerns are being heard and responded to by policymakers.” The Task Force recommended postponing the July 2020 bar exam until early September and if the exam is still impossible at that time, then to expand practice orders to enable new graduates to begin supervised practice while waiting for a bar exam to be administered.
While the Court of Appeals under the leadership of Chief Judge Janet DiFiore has accepted the State Bar recommendations, much more needs to be done to clarify the status of the developing procedures for licensing lawyers from the Class of 2020. Another blog dedicated to pragmatic discourse on how to best license new lawyers who are getting ready to take their first bar exam during the COVID-19 pandemic is documenting the thoughtful and reasoned ways in which many state licensing jurisdictions are rethinking the value of the traditional bar exam limited to the unique challenges presented during the COVID crisis. Law deans and faculty, law students and members of the profession, importantly including the leadership of the State Bar, are engaged in thoughtful dialogue on this topic with the Court of Appeals to arrive at a fair and just resolution for the Class of 2020.
Some may think it unfortunate for the NYSBA Bar Exam Task Force to have issued its critique of the UBE at the same time that we are experiencing an unprecedented disruptor in the practice of law and in the administration of justice. However, this is precisely the time that New York can lead the country with piloting alternative ways to license lawyers with a reasoned roadmap prepared not under the pressure of the pandemic, but rather after a year-long focused study that supports the concept that there are different and equally effective, if not better, ways to assess candidate competency for admission to the bar in New York.
*Patricia Salkin is Provost of the Graduate and Professional Divisions of Touro College. She is a legal educator and a past co-chair of the NYSBA Committee on Legal Education and Admission to the Bar.
I don’t think any of us realized that the day before spring break would be the last day we would be able to walk the halls of Albany Law for a while – I know I didn’t. In fact, I couldn’t have been more excited to escape that building in anticipation of vacation. But now, I miss waving to friends, catching up between classes, and the feeling of being in the Rochester Moot Courtroom. No one expected to have to transition the entire law school online to keep loved ones safe from COVID-19.
What we need now in this time of crisis is leadership and yes, even law student leaders can play a part. In light of the current situation, student leaders at Albany Law School put on their creative thinking hats to try to maintain a sense of community by offering “virtual events” and a list of online resources. Having a sense of community brings us together and keeps us feeling connected when we can’t physically be with one another. It keeps our relationships developing and our heads kept high. Most importantly, it provides a space for support, which is something we desperately need right now.
I thought of the idea for “Pet Happy Hour” when I was experiencing my first “Zoom” class. It was just a “test” class, so there was no substantive material being discussed. Then, several students “brought” their pets to class. Everyone in the class immediately started to smile – like instant therapy! I thought about how special our pets are and how animals can help us destress. Then I thought it would be fun to host a virtual event where students could show off their pets and wind down from the week with one another (and grab a drink). Since the inception of this idea, my student group has teamed up with two others to promote this therapeutic space to the rest of the student body. I’m excited to admire everyone’s pets and of course, show off my own!
Here are a list of the events/resources, which you could potentially recommend for your school:
“Pet Happy Hour” – Several student groups teamed up to host a virtual pet happy hour on Zoom, where participants are being asked to bring their pet (or come admire other pets), grab a drink, and hang out.
“Virtual Murder Mystery Night” – A student group will be hosting a virtual murder mystery game night. Participants are asked to sign up beforehand on a public google spreadsheet to ensure they receive character information before the game. (Note: there is a small cost associated with purchasing the game packet. ~$2 a person).
“Virtual Meditation” – One of Albany Law’s very own professors leads a meditation session on Zoom every Friday at 12PM.
“Virtual Exercise” – The Wellness Initiative at Albany Law is hosting a virtual yoga session and HIIT class for students on Zoom.
“Rise in Wellness Blog” – The Wellness Initiative at Albany Law has a blog with many resources listed including resources specific to COVID-19. A post by our Director of Communications and Marketing provided 5 excellent pieces of advice for working from home. Here they are quickly summed up:
“Create a routine”
“Keep a dedicated working space, if possible”
“Make ground rules”
“Take advantage of technology”
“Stay positive”
It’s certainly a stressful time, but I think it helps to know that none of us are alone – we’re all in this together. Just because we are social distancing, doesn’t mean we can’t still stay connected. I urge other law schools to use some of the resources I’ve provided or find other creative ways to keep that connection with students. If your school has some other ideas, I would love to hear them in the comments!
As our knowledge of COVID19 and its impact becomes more extensive each day, each workplace, profession and community is facing some common and some unique questions. Those working on the front lines in hospitals – such as several of my relatives in NYC and NJ – are experiencing the kind of trauma, shortages, emotional overload and duress that is usually experienced in wartime. It can only be weakly imagined by the rest of us. For those of us not experiencing people suffering and dying in front of us on a daily basis, some less horrific choices are before us: How do we modify “business as usual”? How do we evolve and adapt with each days new tsunmai of information and data? How do we support our best selves and our core values in this historically momentous time on our shared planet?
Before turning to the topic of grading and assessment, I want to pause to give a shout-out to my home institution. Our multi-talented leader Dean Alicia Ouellette has been holding community town halls every day since Friday March 20th. (BTW Dean Ouellette just shared on Facebook that she had been suffering from “presumptive COVID 19” fever and symptoms but thankfully is now symptom free). During our daily town halls, my faculty colleagues and I have expressed our wonder and gratitude for the character, resilience and grit of our law students who are balancing so much right now, and facing so many financial, tech-related, health and extended family burdens. Our students’ engaged and forgiving response to “tech-curious but not necessarily tech-savvy” teachers and their community-minded empathy for those hardest hit keeps the faculty motivated and inspired.
One of the COVID19 decisions for legal educators involves whether and how we assess and sort — which in reductive vernacular means “grade and rank.” Maintaining appropriate expectations, options, rigor and excellence in law teaching may assume primacy for those who have been long focused on ensuring that law students receive real value for the time, talent and treasure they expend on law school. For others focused on fairness in law placement, transparent employer signals about how they will view Spring 2020 legal education may be most influential. For those concerned about our profession’s reputation for lack of wellness and lack of diversity, those concerns are elevated at this moment when those least advantaged are most hard pressed. For those struggling with equity, there are so many permutations and consequences of COVID19 – whichever choice a school makes – that voting faculty could become as immobilized as Chidi Anagonye on THE GOOD PLACE. (BTW Good idea for escape television for those who love philosophy or Kristen Bell).
On the other hand, might this be a moment to look for the opportunities for reform and improvement that only come when the status quo is disturbed and rocked to its foundations as is happening now. Here is what I am thinking:
Might Mandatory P/F force educators and employers to admit that traditional law school grading and ranking is a misleading and reductive proxy for measuring potential success as a lawyer?
Could it force employers to use other ways to learn about the WHOLE STUDENT with all her strengths, gaps, and individual aptitudes including the situation she faced during law school?
Might it accelerate a move to a more qualitative than quantitative assessment of each law student? Or, at least might it prioritize learning which enables a school to assemble a portfolio of student recommendations ( demonstration of knowledge, skills, aptitudes, and professionalism)?
Valuing Legal Education over Sorting – For example, focus on the difference between assessment and grading. Educating Tomorrow’s Lawyers conferences have brought employers, law schools, and legal education stakeholders together to tackle the disconnect between our current sorting systems (primarily used to help elite employers looking for a simple and reductive initial screening system) and the needs of society and most employers for competent new attorneys and the needs of students and the profession for fairness.
Student-centered Learning and the Introduction to the original Best Practices – “One of our basic tenets is that law schools should become more student-centered”
There is a common theme here: P/F with alternative assessment information and measures should be seen not as temporary emergency expedients to “sort and rank”, but rather as long overdue components of a better educational program and more nuanced assessment paradigm.
I would love to hear your thoughts in the comments below. I wish all our readers and citizens of our little blue planet moments of peace, love, safety, and compassion. May someone be kind to you today and let’s pay it forward.
By Louis Jim, Assistant Professor of Law, Albany Law School
My last post discussed my experience of using “classroom clickers” in the first week of law school to build a foundation to understand the hierarchy of authority, a foundation that is critical to success in all classes. In this follow-up, I discuss my experience with using “classroom clickers” to improve student understanding of the Federal Rules of Civil Procedure before students write their motion and appellate briefs.
Many law schools require 1Ls to complete a legal analysis, communication, and research course. Although models may vary, those courses typically span two semesters: the first semester focuses on “objective/predictive writing” and the second semester focuses on “persuasive writing.” At Albany Law School, the course is called “Introduction to Lawyering,” which is a six-credit, two semester course (“Lawyering I” in the fall, “Lawyering II” in the spring). I started teaching the course in August 2018.
In Lawyering II, I require the class to write a summary judgment motion and an appellate brief; the students then complete an appellate oral argument. For the summary judgment, every student represents defendants who move (and are inevitably granted) summary judgment. Every student then represents the plaintiffs-appellants for the appellate brief. Students choose their side for the appellate oral argument.[1] By forcing students to switch sides, students must first write their statement of facts and argument from the perspective of the defendant, and then re-write their statement of facts and argument from the perspective of the plaintiff. This model fosters a better understanding of the strengths and weaknesses of both parties. But more importantly, because students must write from diametric perspectives, this model forces students to think about how organization and word choice affect the persuasiveness of their motion and brief.
The semester-long hypothetical is set in fictional State of New Scotland, and the venue of the civil action is the fictional U.S. District Court for the District of New Scotland,[2] which is in the fictional U.S. Court of Appeals for the Fourteenth Circuit. The U.S. Supreme Court hears appeals from the Fourteenth Circuit. The hypothetical involves a real circuit split on a constitutional or statutory issue and asks students to persuade the fictional district court and fictional circuit to take a position. As an “open universe” problem, students perform independent research, though I assign short research assignments to get them started. Students must recall their knowledge of “binding” and “persuasive” authority and analogize or distinguish the hypothetical problem’s facts to the facts of real cases on either side of the split.
When I first taught “Lawyering II” in Spring 2019, I presumed that every student fully understood how summary judgment actually worked because they took “Federal Civil Procedure” in the fall. But after reading the motions, I realized that I had failed to ensure that each student had a solid foundation to understand how summary judgment actually worked in practice.
Not wanting to repeat my mistake this spring, I created an in-class exercise to assess the class’s understanding of motions, appeals, and Federal Rules of Civil Procedure 12 and 56. A copy of the exercise that includes my comments on the objective of each question is available here:
The exercise involves two separate federal housing discrimination claims against “YBR Apartments, Inc.” The plaintiff in the first claim is “Oscar Zoroaster,” and the plaintiff in the second claim is “Dorothy Gale.” Both plaintiffs claim that they have the fictional “Ruby Slippers Syndrome.” Each question in the exercise builds the prior question, and each question assesses a different aspect of Rule 12 or Rule 56. By using a “classroom clicker,” each student participates without fear of being singled out for being incorrect.
I start with Rule 12 because it serves as a good opportunity to focus the students’ attention to the elements of the claim (i.e. “Can plaintiff state a prima facie case for federal housing discrimination?”). The discussion on the questions about Rule 12 also gave me an opportunity to stress that plaintiff’s counsel should draft complaints precisely and accurately as possible in light of the information available to counsel at that time.
The exercise transitions then to assessing the students’ understanding of Rule 56. For the Rule 56 portion, I wrote hypotheticals that would assess their understanding of (1) what it means for a fact to be “material,” (2) what a “dispute as to [a] material fact” and “judgment as a matter of law” actually mean, and (3) how a district court uses persuasive authority when there is no binding authority. The posture of the last two questions in the exercise are designed to mirror the posture of summary judgment motion and appellate brief for the semester-long hypothetical, i.e. convince a district court and a circuit court to adopt the position of another circuit absent any binding authority.
Not only was the exercise useful in assessing (or reviewing) their understanding of Rules 12 and 56, but the exercise also challenged students to begin forming and making persuasive arguments to support their responses. By practicing how to develop their persuasive communication skills early in the semester, students engaged with the primary learning outcome for Lawyering II—persuasive communication. Students could then apply the exercise’s lessons to the semester-long hypothetical. Finally, students saw how substantive and procedural law is actually integrated and used in practice, an opportunity that may not always arise in other courses.[3]
[1] Students sign up on a first-come, first-serve basis.
[2] Albany Law School is located at 80 New Scotland Avenue in Albany, New York.
[3] My students complete a biweekly reflection in which they must tell me two things they learned in Lawyering that week and two things they want to learn in Lawyering. The students then have the option of writing any comments or asking any questions even if the questions and comments are unrelated to Lawyering. One student commented that she wished she saw more of how doctrinal law is actually used in practice.
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