Report on the CSALE “2019-20 Survey of Applied Legal Education”

by Bob Kuehn, Professor of Law & Associate Dean for Clinical Education Washington University School of Law

The Center for the Study of Applied Legal Education (CSALE) is pleased to announce that the report on its “2019-20 Survey of Applied Legal Education” is now available on CSALE’s redesigned website:  https://www.csale.org/#results.

The report summarizes the collective survey responses from 95% of law schools and over 1,300 law clinic and field placement instructors. The 2019-20 survey, CSALE’s fifth tri-annual survey, provides the most comprehensive, accurate picture to date of clinical legal education programs, courses, and faculty.

In addition to the report, CSALE provides customized information on aspects of the data, such as how a school’s clinical courses or faculty compare to peer schools or more detailed sorting of survey question results. Requests for a customized report should be sent to administrator@csale.org.

Clinical Law Review seeks applications for five vacancies on Board of Editors

The Clinical Law Review seeks applications for five vacancies on the Board of Editors. The Board urges you to think about whether you would be interested, and to think about others whom you would encourage to apply. 

Members of the Board of Editors serve for a term of 6 years. The term of the new Board members will commence in January 2022. The primary role of the Board members is to edit articles for the Review. Because this is a peer-edited journal, the editing process is collaborative. Board members also serve as small group facilitators in the annual Clinical Law Review Workshop. There is at least one meeting per year of the Board, usually held at the annual Workshop. 

Applicants should submit (1) a C.V. and (2) a statement explaining their interest in the position and highlighting relevant aspects of their experience.  The Board seeks applications from people committed to the work of the Review and will prioritize applicants from underrepresented groups and applicants with diverse experiences in and approaches to clinical legal education. Applications must be received no later than January 31, 2021. Please e-mail them to CLRBoardApps2021@gmail.com.  

The committee to select new Board members is always co-chaired by two current Board members whose term is expiring. We (Jeff Selbin & Jennifer Koh) will be serving this year as the co-chairs of the Selection Committee. The other members of the committee will be designated by the three organizations that sponsor the Clinical Law Review — AALS, CLEA, and NYU — each of which will designate two committee members. 

We encourage you to contact us or other current or former Board members with any questions or for information about service on the Board. We and other Board members have found the experience to be very rewarding. 

The other current members of the Board are: Muneer Ahmad, Sameer Ashar, Susan Bennett, Warren Binford, Marty Guggenheim, Margaret Johnson, Jen Lee, and Alex Scherr. The current members whose terms are ending, along with ours, are: Muneer, Susan, and Warren. 

The current Editors-in-Chief are Phyllis Goldfarb, Randy Hertz, and Michael Pinard. 

Those who previously served on the Board are: Jane Aiken, Amna Akbar; Tony Alfieri, Wendy Bach; Bev Balos, Margaret Martin Barry, Ben Barton, Juliet Brodie, Angela Burton, Stacy Caplow, Bob Dinerstein, Jon Dubin, Cecelia Espenoza, Keith Findley, Gay Gellhorn, Michele Gilman, Carolyn Grose, Peter Toll Hoffman, Jonathan Hyman, Peter Joy, Minna Kotkin, Deborah Maranville, Bridget McCormack, Binny Miller, Kim O’Leary, Ascanio Piomelli, Mae Quinn, Paul Reingold, Brenda Smith, Jim Stark, Paul Tremblay, Nina Tarr, Kim Thomas, Rod Uphoff, and Leah Wortham. The Emeritus Editors-in-Chief are Richard Boswell, Isabelle Gunning, and Kate Kruse. The late Steve Ellmann was a founding Editor-in-Chief of the Review.

We look forward to hearing from you. — Jennifer Lee Koh & Jeff Selbin 

AALS Clinical Section Virtual Conference

The Clinical Legal Education Association (CLEA) welcomed 475 clinic faculty from around the country to its 2020 Virtual Conference, July 21-23.  CLEA called on clinic faculty to join together virtually this unprecedented moment.  To view the conference program guide, please click here. To view the poster presentations, please click here.

CLEA’s call for proposals drew a large response from clinic faculty around the country.  The call: 

Streets are filled with protesters rising up in response to horrific and ongoing systemic racism manifested by the continued attack on black and brown lives, and the COVID-19 pandemic has changed our daily reality. This has and will impact our professional and personal lives in critical ways. We are called upon as clinical faculty to reflect on and approach our pedagogy and practice differently. We are in new territory trying to determine the best way to run our clinical programs with the need for all or some of our teaching, services, and advocacy to be delivered remotely. We must re-examine the best way to teach about racial injustice and leverage clinical resources to take action to bring about real, lasting change. With these challenges and the inability to connect in-person, it is our goal to build community, draw on our collective wisdom, and provide a forum for discussion.

The virtual conference included plenaries, affinity group discussions, and larger discussion formats.  The opening plenary, Facing New Suns: Futuristic Lawyering for Black Liberation (“There is nothing new under the sun, but there are new suns.” – Octavia Butler) brought together Rasheedah Phillips (Featured Speaker) and Norrinda Hyat (Rutgers).

The Black Lives Matter protests that took place in the days and weeks following the public murder of George Floyd signal a remarkable shift in the landscape of modern social movements. A New York Times article, published on July 3, remarked that at the peak of the protests, on just one day June 6, half a million people turned out in nearly 550 places across the United States. And, also, that an estimated 15 million to 26 million total people in the United States have participated in demonstrations over the death of George Floyd and other black people since May making this “the largest movement in the country’s history.” 

Some of our students and clients have now spent months in the streets advocating for an end to the status quo, a status quo that is strengthened by the curriculum and structures of most, if not all, law schools. Central to these calls are a rejection of incremental reform. In place of conformism, the protesters are calling on America to imagine, in real time, a world without police, prisons, war, or capitalism. The writings of Angela Y. Davis remind us that the abolition of systems of oppression is both a negative and positivistic project. As for the latter, the protestors call for affirmatively imagining a country with healthcare, housing, education and freedom for Black and Latinx people

As teachers of and lawyers for many of the individuals and organizations marching, this moment calls for clinicians to “decolonize our imaginations,” as Walidah Imarisha sets out in the introduction to the Afro-futurist collection of short stories Octavia’s Brood. This plenary employs the tool of speculative fiction and the lens of Afro-futurism to motivate in each of us the process of “decolonizing” clinical legal education and clinical practice. Afro-futurism has been described as “an art form, practice and methodology that allows black people to see themselves in the future despite a distressing past and present.” Radical speculative fiction explores the connections between art and movements for social change. Speculative fiction is not new. W.E.B. Du Bois’ short story, The Comet, imagines a post-apocalyptic world in which the sole survivors are a black man and a white woman. In 1972, the MacArthur ‘genius’ Fellow Ishmael Reed wrote the canonical Mumbo Jumbo. The modern godmother of this genre, Octavia Butler, wrote her first of 13 books imagining a better future for black people in the diaspora, Patternmaster, in 1976. Radical speculative fiction’s application in the law is also not contemporary. In 1992, Professor Derek Bell merged radical speculative fiction and the law in his now iconic essay Space Traders. Following in the footsteps of DuBois, Butler and Bell, by looking to the creative, this plenary queries the role of clinical legal education in facilitating the future our clients are imagining and urges us to expand our notions of what is possible to stand in solidarity with our students, the protesters and organizers for black liberation through our teaching, advocacy and scholarship. 

The second panel, Black Lives Matter and the Future of Clinical Legal Education, included: presentations by: Desiree Mims (Black Organizing Project), Alexi Freeman (Denver), Nicole Smith Futrell (CUNY), and Renee Hatcher (UIC John Marshall), Donna Lee (CUNY), Oscar Lopez (East Bay Community Law Center) 

Finally, the closing panel, Top 5 Tips for Teaching Clinic Online, featured a presentation by Michele Pistone (Villanova) 

Thoughts, discussion, and ideas for further engagement from the CLEA virtual conference are welcome!

An Overview of “A Study of the Relationship Between Law School Coursework and Bar Exam Outcomes”

Robert Kuehn, Professor of Law at Washington University School of Law in St. Louis, and David Moss, Associate Clinical Professor at Wayne State University Law School, recently conducted a large-scale study looking at the relationship between clinical/experiential or bar subject-matter courses and bar passage success in a paper entitled, “A Study of the Relationship Between Law School Coursework and Bar Exam Outcomes.” As a law student currently enrolled in a clinic, this study immediately piqued my interest.

This study was in response to fear that bar passage rates were down because of rising enrollment in “experiential courses” as opposed to “bar-subject courses.” Law schools began pushing students to enroll in more of these bar-subject courses to correct this so-called issue. However, Professor Kuehn and Professor Moss observed that there was no evidence to suggest that taking more bar-subject courses was appropriate advice for all students. Their study looked at this missing evidence between bar-subject courses and experiential learning and bar exam outcomes for ten years between two law schools: Washington University School of Law (WashU) and Wayne State University Law School (Wayne State). Both schools only require the designed first year courses and the upper-level writing courses mandated by ABA accreditation standards.

Previous studies performed in states like Texas, Colorado, and California looked at the effects of coursework and bar passage rates. These studies did not support the claim that taking more bar-tested law school course improve chances of passing on the first attempt. Notably, a study done in Indiana concluded, “simply forcing lower-performing students to take more upper division bar-subject courses will not solve the bar examination failure problem.”

The first goal of the present study was to determine whether a graduate’s enrollment in elective experiential courses was related to first-time bar passage success. Next, it was to assess whether enrollment in elective courses that cover bar subjects was related to bar success.

Data was collected from law school graduates from 2006-2015. The following table outlines the number of graduates with LSAT scores and bar passage rates between the two schools:

The next table looked at graduate characteristics such as undergraduate GPA, LSAT score, 1L GPA, and law GPA and their correlation with bar passage:

It wasn’t until 2005 that the ABA began requiring graduates to receive professional skills instruction with as little as one credit satisfying the requirement. In 2014, the ABA changed this to require six credits beginning with 2019 graduates. The study authors decided to track enrollment in skills courses versus bar passage over this time period.

The table above reveals a solid line depicting that average bar passage percentages were steady from 2006-2013 (this is when experiential course enrollment increased by over 50%). During the significant rise in experiential enrollment, bar passage percentages were largely steady. “Therefore, efforts to link declining nationwide bar passage rates to the rise in experiential course enrollment are not supported by national statistics.” A more likely contributing cause for bar passage declines since 2014 is weaker credentials of incoming 1Ls.

At WashU, it was found that while taking at least the average number of bar courses is associated with increased likelihood of passing the bar, there was no statistically significant increase in bar passage associated with bottom-quartile LGPA graduates who took more than the school’s average. This was similar with graduates in the bottom half of their class at Wayne State. Results for both schools indicate that graduates in bottom quartile who take fewer than the average number of bar courses at their school were associated with a significant increase in bar failure. Further, at both schools, students entering with scores lower than 150 were associated with pass rates significantly below the school’s average.

This study concluded that the claim that the dramatic decline in bar passage rates is due to law students taking more experiential courses or fewer bar-related courses is not supported. It characterized efforts to cap experiential credits in order to improve bar passages rates are “misguided,” warning that schools should not expect that “mere exposure” to more bar courses will significantly improve bar passage rates.

Also see “Legal Skills Prof Blog” and “TaxProf Blog” for more posts on this study

CLINICAL COSTS: SEPARATING FACT FROM OPINION

by Robert Kuehn,  Washington University School of Law

The late Senator Daniel Patrick Moynihan once observed, “Everyone is entitled to his own opinion, but not his own facts.” When it comes to expanding clinical legal education, the knee-jerk opinion is that it is too expensive for legal education to follow the lead of other professional schools and ensure that every student graduates with a clinical experience through a law clinic or externship. Even the richest law schools couldn’t resist playing the cost card to scare the ABA out of requiring additional professional skills training: “Requiring all law schools to provide 15 experiential credit hours to each student will impose large costs on law schools, costs that would have to be passed on to students. . . . Even a law school with significant financial resources could not afford such an undertaking.” 1

Yet, the facts show otherwise — every school, from the well-heeled to the impecunious, can provide a clinical experience to each student without increasing tuition. Indeed, an array of schools already require 15 credits of experiential coursework (simulations, law clinics & externships) and a clinical experience (a law clinic or externship) for all their J.D. students without noticeable impacts on tuition. At the City University of New York, students must take a twelve- to sixteen-credit law clinic or externship prior to graduation, and at only $15,000 in resident tuition ($24,000 non-resident). Students at the University of the District of Columbia similarly must enroll in a seven-credit law clinic in their second year and a second seven-credit clinic in their third year, paying $11,500 in resident tuition ($22,500 non-resident). Starting with the 2013 entering class, Washington and Lee University requires twenty academic credits in simulated or real-practice experiences that include at least one law clinic or externship. The professor overseeing the program explained that a review of the first few years of the new curriculum showed it is “slightly less expensive than our former, traditional third-year curriculum. And . . . than our current first and second years.”2  Most recently, Pepperdine announced that beginning with next year’s class, students must graduate with at least 15 credits of experiential course work, yet the school increased tuition for 2015 by less than its average increase for the prior three years.

These examples are consistent with studies showing that every school can afford to require a clinical experience for every J.D. student. Continue reading

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

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

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

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

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

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

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

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

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

 

 

 

 

Building on Best Practices now available as eBook

Are you trying to:

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

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

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

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

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

LexternWeb By: Sandy Ogilvy

If you are new to externships or returning to them after being away, I would like to invite you to check out the website created for faculty and administrators of externship programs, LexternWeb.  Visit http://lexternweb.law.edu/  for links to all law school externship webpages, materials, and more.  Note that the site can always use new, updated, or corrected content.  Please send me materials or links for posting.  Also, you can subscribe to the Lextern listserv from the site and join 547 other teachers and administrators of legal externship programs in sustained dialogue about externships.  For more information, please contact me:

J.P. “Sandy” Ogilvy
Ordinary Professor of Law and
Director-CUA Innocence Project Clinic & Clemency Project,
Director-Law & Social Justice Initiatives,
Director-National Archive for Clinical Legal Education
Columbus School of Law
The Catholic University of America
Washington, DC 20064
Tel: 202-319-6195
Fax: 202-319-4459

http://www.law.edu/faculty/ogilvy/

http://lib.law.cua.edu/nacle/

http://lsji.law.edu/

http://www.law.edu/clinics/cle/InnocenceProj.cfm

Public Interest Blog: http://jogilvy.wordpress.com/

Twitter @SandyOgilvy

SSRN: http://ssrn.com/author=363920

Using Portfolios for Assessment

A few years ago I started to use student portfolios as part of the end-of-semester evaluation of my students. I have found that portfolios can be an excellent vehicle both for the student’s own self-reflection and for providing summative feedback.

Here is how I use them. At the end of the semester, I ask each student to prepare a portfolio of the written work the student did over the course of the semester. In doing so, each student is asked to read the first and final version of the principal documents that the student drafted during the semester (in the context of my cases, these include the client’s affidavit, any witness affidavits and a brief).

I also ask them to bring the drafts and final versions to the meeting. During the meeting, each student is expected to have reflected on his/her writing, considered how his/her writing progressed over the semester, and point out 2-3 improvements that he or she made. They are also expected to use the drafts to illustrate the progress.

My students find that the act of assembling the portfolio and rereading their own written work serves as a reminder of how far the student has come in crafting a legal theory or developing a factual account of the relevant events or even about some of the obstacles that he or she encountered along the way and how he or she managed to overcome them. I like this method of assessment because it is mainly about self-reflection. Each student in learning from his or her own work. The portfolio is simply a vehicle to make that learning tangible. It is a wonderfully, tangible way to show someone how much he or she has improved over the course of a semester.

I was recently speaking with Larry Farmer from Brigham Young University School of Law. He mentioned that he uses portfolios too. But in his case, they are videos. At the beginning of his course on Interviewing, before any class has been conducted, he asks each student to conduct a mock interview, which is videotaped. The students then spend the semester learning about, practicing, and refining their interviewing techniques.

Then, at the end of the semester, they are asked to review that first interview and to reflect upon their own improvement over the semester. Like the written portfolio that I use, this one also uses a student’s own work to demonstrate learning and progress. I plan to try it next semester.

Are there other ideas out there? Do you use portfolios? If so, how? How can I improve my process? I’d love to hear your thoughts in the comment section below.

Call for Talks – Igniting Law Teaching 2015

LAW PROFESSORS: Are you doing innovative things in the classroom? I would love to showcase your ideas at Igniting Law Teaching, a TEDx-styled conference on law school innovations.

The Call for Talks for Igniting Law Teaching 2015 is out, http://legaledweb.com/ilt-2015-call-for-talks. We’ll be reviewing proposals on a rolling basis, until January 15th.

The conference is March 19-20, 2015 (stay tuned for registration information) in Washington DC at American University Washington College of Law.

Last year’s conference brought together more than 40 law school academics in a TEDx-styled conference to share ideas on law school innovations. LegalED’s Teaching Pedagogy video collection includes many of the talks from last year’s conference (others are being produced and will be available soon).

The topics we addressed last year are: Flipping A Law School Course, Using the Classroom for Active Learning, Simulations, Feedback and Assessment, The Craft of Law Teaching, Applying Learning Theory to Legal Education, Beyond Traditional Law Subjects, and Teaching for the 21st Century.

We would love to hear more on these topics and also expand the horizons a bit. We designed the conference to create a forum for professors like you who are experimenting with cutting edge technologies and techniques in law teaching with the goal of spreading your ideas to the broader community. We see the conference as a way to showcase you as a leader in teaching innovation and to inspire innovation by others as well.

The Igniting Law Teaching conference is unlike other gatherings of law professors. Here, talks will be styled as TEDx Talks, with each speaker on stage alone, giving a well scripted and performed talk about an aspect of law school pedagogy. In the end, we will create a collection of short videos on law school-related pedagogy that will inspire innovation and experimentation by law professors around the country, and the world, to bring more active learning and practical skills training into the law school curriculum. The videos will be available for viewing by the larger academic community on LegalED, a website developed by a community of law professors interested in using online technologies to facilitate more active, problem-based learning in the classroom, in addition to more assessment and feedback.

This is a great opportunity to showcase your innovations to the legal academy. Consider joining us for Igniting Law Teaching 2015!

Cross-posted on the LegalTech Blog

The Baby Has Finally Been Birthed!

Comprehensive revisions passed

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

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

Well, it’s a start……

TEACHING RESILIENCE AND BEING RESILIENT : Filling Our Tanks This Summer

About a month ago, I had the pleasure of attending the annual AALS clinical conference held  in Chicago.   The conference focused on achieving happiness and resilience at a time of challenge in legal education while exploring methods for becoming “better” clinical teachers.  Clin14BookletWeb

The Keynote opening presentation by Professor Nancy Levit from the University of Missouri-Kansas City School of Law outlined research about happiness,  lawyers and legal careers.   Professor Levit’s  book with Doug Linder, The Happy Lawyer: Making a Good Life in the Law, was published by Oxford University Press in 2010. Their sequel, The Good Lawyer: Seeking Quality in the Practice of Law is now available.  The Levit and Linder research helps answer questions for our students and ourselves about how and why lawyers find a  legal career rewarding.   Much of the research reveals that simple truths about happiness – such as feeling valued or being part of a community – bears repetition.   The presentation was informative and the research can be used in advising our students, supporting our colleagues and caring for ourselves.

After her keynote, panelists Professor Calvin Pang (University of Hawaii, William S. Richardson School of Law)  and Professor Joanna Woolman (William Mitchell College of Law) with moderator American University Professor Brenda Smith presented a few clips from a very realistic “role play” focused on a “devastating” day in court and the responses  of a clinical teacher, clinical student, and non-clinical colleague.    (The film will be available after the conference – I believe at the AALS site – for those who want to use it in their home schools.)  In the film, the law student  faces a surprising negative court ruling and then experiences his client yelling at him outside the courtroom.   In conversation with the clinical professor, the student expresses anger with his client and believes he should just “drop” clinic.  The clinical professor listens to the student and also explores other aspects of the student’s current anger and despair including his having received a number of employment rejections during this same time period.

The film was provocative and engendered good discussion about the role of law professors .  Many of us have experienced with our students or in our own professional lives the coinciding emotional burdens of dealing with difficult emotions in client’s cases and receiving negative news on the home or career front.   Managing and coping with all those emotions and burdens is a never-ending part of professional development and law schools can and should play a significant role in preparing students with appropriate skills, appreciation of professional values and coping tools.

In a final exercise, the entire room of about 500+ created word trees on three questions:

1.  What do you do as a teacher to “fill your tank.?”

2. What do you do to encourage your students to adopt habits to make themselves whole?

3. What are the barriers and obstacles to the first two?

In asking myself these questions and watching the hundreds of others eagerly participate, I reflected on the particular importance of the resilience, holistic, and happiness theme at this moment in time.   Students and recent grads need our positive support.  Institutions need our creative, optimistic energy.   But providing that energy and support can be personally tolling.

Student-centered faculty – and in particular clinical faculty with summer burdens or untenured faculty with heavy writing demands – must  carve out some real off time or vacation in order to be effective in the long term.  Their institutions must support their need for renewal.  Filling  our personal “tanks” with sunsets, summer treats (ice cream for me!), some  relaxing days, renewed commitment to exercise or getting outside, and time vacationing with loved ones helps form the foundation for resilience in the academic year.  We need to do this not only to support our own resilience but to equip ourselves with the experience-based wisdom that will be needed in great quantities in the coming semesters.  In order  to assist our students and our institutions at this precarious time for law schools, we need to nurture our whole selves now.

SRC voted to eliminate Interpretation 305-3 which distinguishes paid employment from academic field placements

American Bar Association Accreditation Standard 305  addresses “study outside the classroom” and, in particular, field placement courses.  Interpretation 305-3 states:

A law school may not grant credit to a student for participation in a field placement program for which the student receives compensation. This Interpretation does not preclude reimbursement of reasonable out-of-pocket expenses related to the field placement.

The written submission by the Clinical Legal Education Association (CLEA) filed January 31, 2014 (found here or on ABA site) argues

To revoke this regulation would give employers in paid field placements significantly more power both to control student work and to minimize the employer’s supervisory role, and would significantly reduce externship faculty control over the educational benefit of the placement.

This is a real concern. When I directed Albany’s field placement program, I often had to discuss with supervisors the difference between their treatment of academic interns and paid clerks. For example, throwing an inexperienced student into night court without direct attorney supervision may free up the evening of the harried assistant public defender or assistant prosecutor but it fails to teach the intern the constitutional way to practice law. And, if you pay the interns you may well be entitled to assign them to pick up your dry cleaning or walk your dog because your time is more valuable, however those activities are hardly educational. These were actual issues I addressed and was able to resolve in favor of the students educational experience because the employer had no money in the pot and needed to follow the requirements of the law school. That leverage will be undercut if interpretation 305(3) is removed.

I also agree with CLEA’s position that

……nothing suggests that field placement courses are displacing a large volume of paid part-time work for law students. To the contrary, pervasive anecdotal evidence suggests that employers are unable to pay and would prefer that students work without pay. Field placement directors (and placement offices) routinely field requests from employers who seek to offer unpaid work through a field placement experience. Nothing suggests an increased demand by employers to pay students who are also getting credit.

If anything, during difficult economic times, law students need the negotiating power of an experienced attorney and faculty member even more, since they are more vulnerable to exploitation by employers. I urge the Council to keep Interpretation 305 (3) in place to protect the educational quality of field placements. As discussed in another earlier post, during Thursday’s public hearing before Council members, Interpretation 305 (3) was discussed, including the applicability of the Fair Labor Standards Act, possible exploitation of students, and the problem of differing expectations regarding treatment of paid and unpaid interns. These issues are complicated and deserve further attention. With the SRC members deciding to complete the comprehensive review at the February meeting and leave issues which need more data and input for another day, it was surprising, in my opinion, to observe them move so quickly on the proposal to remove 305-3 without a more informed vetting of the issues.

Disclosure: I was recently elected co-vice president of CLEA. However, I was not responsible for the CLEA position letter on this interpretation. When writing on this blog, I do not represent CLEA.

Quite Moving but Frightening Testimony at AALS Conference

I write from the Hilton Hotel in New York City where the American Association of Law School annual conference has just ended.   The most memorable and riveting session I attended was the ABA panel presentation on proposed revisions to accreditation standards,   I knew full well that this would be an intense session and blogged about the dangers of these proposed revisions earlier in the year  here. .  The proposed revisions will change dramatically what I consider an essential facet of legal education:   the ability to acknowledge, discuss, debate, theorize,and write about  issues that are unpopular.  It will also prevent law faculty from teaching about and working with students representing clients on issues which are unpopular.   I knew this discussion would be intense but I was not prepared for  the stories of our brave peers in the academy which reinforced for me the fundamental importance of academic freedom supported by tenure or security of position.

One professor who self-identified as a female American who is Muslim reported  that she received death threats at work for appearing at a Department of Justice panel on National Security and Muslim issues.   She noted that without tenure and academic freedom, she would be at risk for firing for doing no more than accurately describing the national security legal issues.  She also eloquently explained that as a young, female professor of Muslim religious and cultural identity, she was vulnerable for receiving student pushback and bias for her assuming the position of power and authority over students.  Without academic freedom secured by tenure,  she would fear student bias in evaluations or impressions which could threaten her job security because of her Muslim identity.   A white woman who  taught at a religious school in the deep south,  movingly described her experiences. Without academic freedom supported by tenure, she found that  just raising legitimate legal issues and cases regarding property, same sex marriage, second amendment law, domestic violence or other issues could put her at risk of losing her job.  Had she not been supported by a tenure system which requires “cause” not popularity as measured by teaching evaluations or other factors, her personal and financial incentive would encourage her to avoid  teaching  important legal questions  for fear of back”pushback” .  Professor Terry Smith of Depaul College of Law presented remarks on behalf of the minority law professors section whose members attended in great numbers.  I share with you  his statement here (ABA Statement 1 4 13 ) Another member of the minority law professors section, Professor Anthony Farley,  cautioned that these issues are not “speculative” and spoke about ongoing attacks on academic  freedom, faculty governance, tenure and security of position at a particular school.  Other faculty members discussed how its hard to teach constitutional law in this country without mentioning race but that faculty who do not have security of position will find it difficult because when race is mentioned in a classroom, faculty inevitably suffer in teaching evaluations by students who are uncomfortable talking about race.

Professor Kate Kruse, past president of the Clinical Legal Education Section  noted that for many clinicians academic freedom has only been made real by the current ABA  standard 405 (c) and the  proposed revisions make no attempt to provide a “safe harbor” for the majority of clinicians and legal writing professors who also need to enjoy academic freedom.  There was some discussion by panelists and audience members about an earlier proposal which would have eliminated the hierarchical status types among faculty and questions about why that proposal was never presented for notice and comment.  See earlier blog discussion of the proposals. Past President of the AALS Clinical Section and Fordham Law’s Professor Elizabeth Cooper noted how tenured clinicians are  often asked by untenured  clinical colleagues to make points at public meetings that they are unable to make for fear of impact on their continued employment.

Members of the panel thanked those who testified for good reminders about the negative and practical consequences of these revisions. The Chair of the Council on Legal Education, attended and wanted the audience members to know that he had listened carefully to the concerns.  Past President of the AALS, Professor Leo Martinez and panel members urged  all interested parties to submit written  comments about this controversial proposed revisions on the ABA website found here.

OBAMA COMMENT ON 2 YEARS OF LAW SCHOOL

It is not surprising that President Obama wants to decrease the cost of higher education and make it more affordable for the average American family. Nor is it surprising that he floated the idea of decreasing cost by decreasing the number of years a law student has to PAY for school as reported by the New York Times here.    Without a full understanding of all the issues, that often appears to be a sensible idea.  What is surprising is that the President confuses unpaid interning with a “clinical experience.” As we know from the medical and other professional settings, clinical experience is NOT the same as allowing   barely trained law students to “HAVE AT IT” in a practice setting. Nor is every environment appropriate for clinical training and supervision. The whole point of “clinical education” is supervision, feedback, mentoring, and learning to learn from observation, experience and mistakes.

Another problem with the President’s “shoot from the hip” comment, is that the very reason that new law students can’t find jobs is the same reason today’s law firms are NOT appropriate for the kind of mentoring which was done in days of yore. As a member of the New York State Task Force on the Future of the Legal Profession and a chair of the Education and Training Subcommittee, I learned from legal employers and their clients that the market-driven, competitive nature of private industry today has created a situation in which clients no longer want to pay for the on-the-job training of new attorneys. More senior attorneys are so tightly time-managed relative to billable hours that they have significantly less hours and energy to mentor, supervise and help form new attorneys. That’s where law schools have added value for graduates and provided the support and individual attention that tomorrow’s lawyers need through clinical programs (both in-house and in the field). If the President wants to add his significant heft to this debate, he should do so in a more nuanced and effective manner than making an off the cuff comment.

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