Foundations for Teaching: A Data-Driven Model to Help Legal Educators Build Learning Outcomes into Their Instruction

Posted on May 14, 2021 by davidafinger

Zack DeMeola
Director of Legal Education and the Legal Profession, IAALS

Logan Cornett
Director of Research, IAALS

In 2011, IAALS—the Institute for the Advancement of the American Legal System at the University of Denver—launched Educating Tomorrow’s Lawyers (ETL), a unique, national initiative to change the way law schools educate students. ETL provided a platform to encourage law schools to showcase innovative teaching to produce more practice-ready lawyers who can better meet the needs of an evolving profession. One of the primary concerns IAALS hoped to address was the perceived skills gap between the abilities new lawyers have when they graduate law school and the abilities they need for practice. Of course, this gap has serious implications for educators and employers, but it has even greater implications for the profession. Not only do under-prepared lawyers undermine public trust in our legal system, but they also struggle longer and harder than they should as they try to gain footing in the legal profession. The ETL initiative has since ended, but from that work emerged Foundations for Practice, a first-of-its-kind effort to develop an evidence-based understanding of the competencies, skills, and characteristics new lawyers need to develop to be ready for practice and understand how law schools and employers can best instill these qualities in future lawyers.

Through a national survey, to which more than 24,000 lawyers from all 50 states representing a diverse array of practice settings and specialties, IAALS identified 76 characteristics, professional competencies, and legal skills that are necessary immediately out of law school—these are the 76 foundations a new lawyer needs to be successful. But uncovering this information was just the first step. We understood that the comprehensive data that came from Foundations would have more impact if we could better organize and harness it in a practical way. The goal is to offer educators and employers a framework to create more objective, transparent, and accountable practices for assessing competencies in students and new lawyers.

Learning outcomes, the bedrock of standards-based instruction, provided an obvious framework for this next phase. Learning outcomes are academic standards and methodologies used in instruction, assessment, grading, and reporting to ensure students learn, practice, and master the requisite skills and content. Learning outcomes are more than the recitation of specific skills and abilities—they operate through applying research- and evidence-based instructional practices, including rigorous assessment, to ensure student needs are being met, and are thus also used as defendable criteria for program, course and curriculum content value and effectiveness. The process emphasizes transparency, accountability, flexibility, and clarity. Thus, learning outcomes better assist educators to:

  • Structure and identify key concepts for coursework;
  • Assess student performance and whether students understand and can apply those concepts;
  • Map the relative strengths and places for improvement in programs and curriculum;
  • Set shared expectations between students and educators;
  • Collect the information needed to continually improve instruction; and
  • Collect the information needed to show evidence of effective learning for accreditors.

Learning outcomes are not a fringe concept, but they are new to legal education. Although learning outcomes are a primary feature of education in just about every other context—from kindergarten to graduate school (medical schools had an early form of learning outcomes in the 1930s, which have been modernized over time) it wasn’t until 2016 that the American Bar Association (ABA) required law schools to “establish and measure other important outcomes for those who enroll” in legal education program” by developing learning outcome measures and assessment methodologies to “improve their legal education programs and better serve the needs of students during their legal education and in their professional careers.”

While this new accreditation standard was an important development for legal education, the ABA provided precious little guidance on how learning outcomes should be implemented or evaluated. Understandably, many law schools and law school faculty, when faced with the prospect of a wholly new way to frame instruction and curriculum, have been slow to develop effective learning outcomes. In our work on this project, we learned that law school faculty, staff, and administrators are all grappling with how to structure, design, and incorporate learning outcomes and assessments into their educational programs. But we also learned that they are genuinely motivated to better prepare students for their careers after law school. In our view, a Foundations-based approach using a data-driven process to design learning outcomes and implement corresponding assessments is the best way to accomplish that goal.

The need for guidance and for a relevant, empirically validated, and effective outcomes-based framework for education spurred IAALS to design Foundations-based model learning outcomes. The five broad learning outcomes categories—Communicator, Practitioner, Professional, Problem Solver, and Self Starter—organize the 76 foundations entry-level lawyers need to succeed in the practice of law and make it easier for educators to hone their teaching methods around them. 

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2021 Conference on Clinical Legal Education (AALS)

Posted on April 23, 2021 by davidafinger

Wednesday, April 28 – Saturday, May 1, 2021
Reckoning with our Past and Building for the Future

Over the next week, the Best Practices blog will share posts from sessions at the upcoming AALS Conference on Legal Education. More information about the conference is available here.

This year’s conference theme is Reckoning With our Past and Building for the Future. As experiential legal educators who teach in-house clinics and externship courses, we find ourselves in unprecedented times, reacting to stressful external conditions while also coming to terms with practices that have perpetuated inequality and injustice.  This conference engages with this new reality, while also seeking to shift our collective gaze inward, to focus on ways we can strengthen ourselves and our community of educators, in order to respond effectively to today’s challenges.  Consistent with core clinical habits of introspection and reflection, we will examine ways to reimagine the foundations of our professional work, including our collaborative relationships, instructional approaches, and forms of community engagement.  We will also explore ways to fortify ourselves as individuals, with specific attention to wellness and professional growth.  Finally, during this transformative moment in society, we will critically assess our assumptions and long-standing practices, with an eye towards advancing antiracism and inclusiveness.

Conference Subthemes:

Conference Subthemes

  1. Collaboration.  Collaboration is key to our individual and collective sustainability, particularly in the challenging external environment in which we find ourselves.  What are effective models for collaboration across clinics, subject matter areas, and disciplines?  How can we promote collaboration and linkages across different types of experiential teaching (e.g., in-house clinics, externships, practica, and simulation courses)?  What types of collaborations are needed for our clinical work, in light of the COVID-19 pandemic and movements for racial justice?  What other types of collaboration might the future require, and how can we begin cultivating those partnerships?
  2. Foundational and Emerging Lawyering Skills.  As clinicians, instruction on lawyering skills is central to our pedagogical project.  Moments of introspection and reflection permit us to examine our past practices in this area.  How can we enhance our pedagogy vis-a-vis core lawyering skills, such as interviewing, client counseling, case theory development, trial advocacy, and negotiation?  As we confront a new reality and look to the future, what emerging lawyering skills should we be integrating into our curricula, and how should we teach those skills?  How does the shift towards remote instruction and adjudication, and the ubiquity of technology, shape our pedagogy around foundational and emerging lawyering skills?
  3. Mindfulness, Self-Care, and Resilience.  Given the unprecedented stressors that we face in our professional lives and in society at large, wellness is a top priority.  What are we teaching our students about self-care and mindfulness, and how are incorporating these topics into our courses?  What practices should we as clinicians adopt to keep ourselves strong, focused, and intentional in our work? As we continue to navigate an uncertain future, how do we develop the quality of resilience — both in ourselves and in our students?  
  4. Professional Development.  The COVID-19 pandemic and accompanying economic downturn have created an uncertain future for law schools and legal educators.  Moreover, the need to respond to an ever-changing environment leaves little time for contemplating and furthering our professional growth.  What are best practices for clinicians at different stages in their careers (e.g., fellows, pre-tenure, mid-career, approaching retirement), given the unique times we are living in?   What guidance and support can we provide for clinicians who are fighting for more equal status within their institutions?  Given law schools’ focus on experiential education, bar passage, and job placement, how can we leverage our strengths as clinicians? What challenges and opportunities does the current environment present for the professional advancement of clinicians? 
  5. Clinics and the Community.  Community engagement and the advancement of social justice are often central to our work as clinical legal educators.  In the current social and political moment, many clinicians are deepening their community-based work. As we take this moment to reflect, what are some critiques of existing models of community engagement?  How do we ensure that our approaches are sustainable?  How do we balance responsiveness to pressing community concerns with the need for stability in our teaching?  As we look towards an uncertain future, what models of community-based work should we embrace?
  6. Critically Examining Our Past.  This transformational moment offers an opportunity for individual clinicians, and for the clinical community as a whole, to critically examine our past practices, including assumptions about our work as well as the structures in which we operate.  This process of self-examination also includes introspection about biases embedded in our work and the steps needed to promote antiracism and inclusiveness.  What aspects of our community and its work deserve more careful examination and critique?  How can we remedy existing deficiencies and reimagine the role and contributions of clinical legal educators?

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Diversity, Equity, and Inclusion in the Experiential (R)Evolution

Posted on February 11, 2021 by davidafinger

G.S. Hans

In Assessing the Experiential (R)Evolution, Allison Korn and Laila Hlass have written an excellent, incisive article on the after-effects of the ABA’s adoption of a standard mandating that law schools require J.D. students to complete at least six credits of experiential coursework. Korn and Hlass observe how titanic a shift this was; while less than the 15 credit requirement that some advocated for, it still reflected a six-fold increase from the prior regime.

All those experiential credits have to come from somewhere, and that’s where Korn and Hlass take up their project. They sought to learn, through an extensive survey, how schools have responded to the new ABA requirement. One of their central contributions in their article is determining exactly how law schools have complied with the new standards. While some schools had little work to do to ensure compliance — either because they already required at least six credits of experiential education or  because they already offered enough courses to allow students to fulfill the ABA requirement — many others created new classes, modified existing courses, or engaged in broader curricular reforms.

Who teaches these classes, and who ensures they run properly? Korn and Hlass examine these questions as well, discussing how schools have relied upon the now-prevalent academic administrator — often a Head of Experiential Education, referred to by various titles — to manage and facilitate the experiential curriculum. The responsibilities that flow from such power are significant and likely to grow, particularly if the ABA revisits the credit hour requirement or if other states follow New York’s lead in creating experiential requirements for bar applicants.

Drawing upon the scholarship of Jon Dubin and the CLEA Faculty Equity & Inclusion Committee, of which I am co-chair, Korn and Hlass discuss the potential diversity and equity concerns that might result. While the data their article describes is impressive, it does not include race or gender information on experiential directors and deans. Our committee is working to rectify that gap, as a lack of data has stymied research — and thus reforms. There are many reasons to seek better diversity and representation from experiential administrators, but the visibility of the role, both as a symbol of a law school’s experiential program and within the administration of law schools, is particularly compelling.

One concern I have, which Korn and Hlass mention, involves the diversity and representation issues for instructors who lack employment security. With law schools potentially entering a permanent cost-consciousness mentality, determining how to finance the need for experiential courses will merit special attention from deans and experiential administrators. Though Bob Kuehn has shown that the reputation of clinics as high-cost relative to other law school expenditures is overstated, law schools may still choose to use adjuncts, fellows, and other short-term faculty to satisfy their ABA requirements in a less expensive way. 

Korn and Hlass note Meera Deo’s warning, in her influential book Unequal Profession, that law schools might seek to grow their diverse faculty in the least secure positions. Some experiential faculty are on the tenure-track or have tenured positions, whilst others have more precarious appointments. Adjuncts and fellows have the least job security of instructional faculty — but might present appealing, lower-cost options for expanding experiential offerings, through practicums, labs, or clinical seats. For some law schools mindful of financial concerns, hiring an adjunct to teach Negotiation as an experiential course to 24 students might seem more appealing than creating three tenure-track clinical faculty lines to offer 24 seats on the standard 8:1 ratio for clinical courses. Given Deo’s concerns, we should keep an eye on whether less-secure positions are being used to comply with the ABA requirement, and whether those positions are being disproportionately filled by diverse faculty.

Korn and Hlass have given us all much to think about in this comprehensive and innovative article, which ties together many strands of current debate within the experiential community. I particularly appreciated its generative qualities — I myself came away with many questions and ideas for future research. These issues will require scholarly engagement and discussion from many faculty and law schools in order to chart a just and equitable path forward for instructors, students, clients, and law schools.

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Experiential Education and the First-Year Curriculum

Posted on February 10, 2021 by davidafinger

Eduardo R.C. Capulong

One way to describe today’s law school curriculum is in terms of détente—a truce in which law schools have decided that experiential work can happen in the third year so long as the case method reigns supreme in the first.  Students can take clinics or externships later but their first preoccupation would be dissecting appellate opinions for doctrine and reading supplemental materials for context.  Allison Korn’s and Laila Hlass’ survey of experiential courses post-revised ABA Standards 303 and 304 provides us a fresh glimpse of this pedagogical battleground—and, as Tony Amsterdam observed nearly four decades ago—equips reformers with more “political dynamite” to throw at this ossified state of affairs.

Korn and Hlass report that 19 schools expanded and 20% of respondents changed their first-year experiential curricula post-revised Standards.  “Labs” and “practicums” have proliferated, as have deans for experiential education—many former clinic directors now overseeing the entire experiential arc.  These developments, they prescribe, should “ensure not only compliance with the new ABA Standards, but also advancement of a diverse and comprehensive experiential curriculum that bolsters faculty expertise, develops students’ substantive and contextual knowledge and practical skills, and expands access to justice.”  To these ends, they call for ensuring the long-term viability of experiential deans; rigor in the approval, development, and assessment of experiential courses; and diversity of and security of tenure for experiential faculty.  The survey reveals what should be easily correctible oversights, as well, such as including simulation courses in Standard 303(b): since such courses are experiential under its definition, there’s no reason why law schools shouldn’t “provide substantial opportunities” for them just as they must for clinics and field placements/externships.  (Indeed, best practices should call for students taking a clinic and anexternship and a simulation course.)

Above all, Korn and Hlass surface the need for theory—i.e., pedagogical theory, or what my colleague, Julia Hernandez, calls an “antidisciplinary lens.”  The law school is, of course, a key pillar of the American establishment, hence the durability of how things are done.  The reason the formalist cast has endured is that it has served racial capitalism exceptionally well: it abstracts, objectifies, normalizes, and obscures raw, violent power in a set of purportedly neutral rules equally applicable to all.  Reformers have mounted successive challenges against the case method for more than a century.  Yet none has been successful in supplanting it.  That’s the story of social movements fighting hegemony, coinciding with historical forces in ebb and flow.  It’s also the story of reformism: piecemeal changes not quite striking at the heart of their target.  What we need, as Jerry Lopez recently argued, is an “alternative vision.”

Labs and practica in the first year may seem quaint from this perspective.  But like any movement with a visionary goal and immediate realities to confront, they’re promising next steps.  They can form the backbone for the faculty collaboration Korn and Hlass rightfully note as key to an effective experiential curriculum.  They can be tied, for example, to lawyering or legal methods courses that can then form the hub of a reimagined curriculum.  They can be vehicles for developing simulation pedagogy and professional identity, which remain undertheorized.  (I’m not disinterested here: I direct one such program in a school founded on such a model and helped convene a network of Lawyering professors promoting these ideas.)  With the rise of the information economy—including rapid technological changes and the ready availability of legal materials whose use as asynchronous instruction has been hastened by the pandemic—law faculty should be less purveyors than curators of knowledge, less lecturers than coaches or sources of skillful and ethical guidance—i.e., less doctrinal teachers than clinicians. 

I’m hopeful.  The developments Korn and Hlass surveyed coincide with five others that should make us optimistic.  The first is the racial reckoning that many law schools have undertaken in the wake of the Black Lives Matter movement.  The second are the redoubled efforts by critical race scholars to reform the first-year curriculum, including recent work on the white supremacist foundations of legal rhetoric and ongoing work to forge what my colleague Yasmin Sokkar-Harker calls “critical legal information literacy.”  The third is a professional identity movement seeking to systematize instruction.  The fourth are professional competency studies that confirm the soundness of the experiential project—the latest of which, led by Deborah Merritt, was published two months ago.  And the fifth are potential changes to the bar exam recently recommended by the NCBE and summarized in these pages, which call for the “assessment of lawyering skills to better reflect real-world practice and the types of activities newly licensed lawyers perform” and the expansion of those “foundational skills … to include more than just legal analysis and writing [but also] legal research, factual investigation and evaluation (including fact gathering), client counseling and advising, client relationship and management, and negotiation and dispute resolution.”  Taken together, these parallel movements form at least part of our curricular terrain.  Détente or no, they are the leading edges of change and I’m thankful for Korn and Hlass for their important contribution.

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Lessons from Critical Race Theory for the Experiential (R)evolution

Posted on February 8, 2021 by davidafinger

Robin Walker Sterling

In Assessing the Experiential (R)evolution, new experiential learning directors Allison Korn and Laila Hass conclude that law schools should “define the boundaries of experiential dean and director roles,” and provide faculty members in those roles appropriate administrative and other support; “implement sustainable practices to expand and support experiential faculty, with a focus on including and valuing underrepresented clinicians of color,” and “develop practices to ensure rigor in the process for approving and assessing experiential coursese while appropriately allocating resources to courses and programs.” The authors based their comprehensive recommendations on survey responses from 126 law schools received in the fall and winter of 2018.

Since then, our country has faced both an unprecedented health crisis and protests stemming from long-simmering social unrest. We have been caught in the pincer grip of two widespread pandemics, one old and one new. The novel coronavirus has upended our lives, exploiting fault lines of marginalization to disproportionately affect the communities that many law school experiential programs serve. To date, even as the new presidential administration rushes to deliver doses of the vaccine to vulnerable populations, there are 26.9 million cases of covid-19 in the United States, and more than 460,000 people have died. Communities of color have disproportionately borne the brunt of the virus’s effects. According to the Washington Post, even after controlling for age, sex, and mortality rates over time, Black Americans were 37 percent more likely to die of the virus than whites; Asian Americans were 53 percent more likely; Native Americans and Alaskan Natives were 26 percent more likely; and Hispanics were 16 percent more likely to die than whites.

At the same time, the decades-old systemic racism embedded in policing reached a tipping point, leading to uprisings, protests, and calls for change around the world. On the heels of the shooting of Ahmaud Arbery, unarmed and jogging in Georgia, and of Breonna Taylor, unarmed and asleep in her own home in Kentucky, the suffocation death of George Floyd on a city street in Minneapolis led to the longest and largest period of protests for civil rights in the United States since the 1960s. On one day during the months of protests, June 6, over half a million people protested in nearly 550 places across the United States. The protests have led to significant changes. The Minneapolis City Council promised to dismantle its police department. New York legislators repealed a law that kept police disciplinary records confidential. Jurisdictions across the county banned chokeholds. Colorado disallowed qualified immunity for police in certain situations. Perhaps as importantly, the pendulum has shifted in the public’s acceptance of the Black Lives Matter movement, with support increasing in the weeks after George Floyd’s murder as much as it had in the last two years. In his inaugural address, President Biden listed “a cry for racial justice some 400 years in the making,” along with the coronavirus, the economy, the threat of white supremacy, and climate change as the defining challenges of our time.

As the clinical legal education community undertakes the critical assessment that the authors urge, it might do well for us to strategize around achieving these gains using tenets of critical race theory. Some of the foundational tenets of criminal race theory include: questioning the idea of “meritocracy” and the assumption that standards of “merit” can be neutral under current social conditions; emphasizing taking action to make real change in the world; and understanding that power works hegemonically. All of these are consonant with some of the cornerstone principles of clinical legal education. In particular, Derrick Bell’s theory on interest convergence might be instructive. Professor Bell developed his ground-breaking theory in the context of civil rights, when he argued that the Brown v. Board of Education (1954) decision, which prohibited de jure segregation of public schools, came about because such a ruling benefitted white people. Professor Bell argued that the Brown decision: soothed the anger and potential of political protests Black veterans, who had served their country in World War II only to return home to continued discrimination; advanced American Cold War objectives by making the United States seem more reasonable than Russia to third world countries; and facilitated desegregation, which was now seen as economically advantageous to the South. As Professor Bell (1980) put it, “the interests of Blacks in achieving racial equality will be accommodated only when it converges with the interests of Whites.”

This principle, broadened and restated as the premise that the interests of a more marginalized group will gain traction only when they coincide with the interests of the dominant group, might be applied to the situation of clinical legal education relative to traditional legal academia. If we applied this principle, then goals like educating members of traditional legal academia about the important contributions of clinical legal education, or appealing to traditional legal academia’s sense of unfairness become less important. Instead, our strategy becomes one of figuring out how to recast the academic and administrative gains we are seeking as aligned with the interests of non-clinical legal academia. That is a much larger topic than can be accommodated in this short blog post. But, in the same way that the zeitgeist of the protests of the 1960s Civil Rights Movement created an atmosphere ready for change, these recent protests have done the same. This article, with its comprehensive questions and recommendations, helps clinical legal academia make the most of this moment.

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Race Ought to Be A Through-Line in Core Law School Curriculum

Posted on December 7, 2020 by davidafinger

Darcy Meals, Assistant Director, Center for Access to Justice, Georgia State University College of Law

Long before law school we are taught that, as is engraved in the Supreme Court’s edifice, we are all entitled to “equal justice under law.” It is one of the fundamental ideals of the American legal system. And yet, it so often remains just that: an ideal to which we aspire but at which we have yet to arrive.

More than falling short of a collective goal, however, our nation’s history is replete with examples of racial injustice written into and undergirded by law: federally sanctioned redlining, internment of Japanese Americans, the failure to prosecute or convict police officers for killing Black people at rates three times their white counterparts. These more modern examples stem directly from the “manifest destiny” of our country’s founding and the early establishment of property law principles built on the commodification of Black bodies and seeking to justify taking land from indigenous peoples.

Despite the many overt examples, historical and current, of the ways in which race shapes our legal system, law faculty are often race-avoidant in teaching would-be lawyers. Race may be relegated to a “law and” discussion in upper-level seminars or covered only in reviewing seminal cases like Brown v. Board of Education. But its influence cannot be limited to one course or doctrinal area. Racial bias informs definitions of reasonableness and credible threat, shapes our views of what constitutes intentional infliction of emotional distress, and influences criminal sentencing and civil recovery. Stated or not, the influence of systemic racism pervades the law school curriculum because it permeates the entirety of the American legal system.

When race is absent from class discussions, that silence sends the message that the law is neutral and operates equally for all, when that is not the lived experience for so many. When we fail to incorporate issues of race and racism as foundational in core law school courses, we impede the professional development of future lawyers, who graduate without grappling with difficult but essential questions of how the law can operate to subordinate on the basis of race (and gender, class, age, sexual orientation, gender identification, religion, and ability – and the important intersections of those identities). Our silence about how race informs law and its application does real damage to students and can be particularly alienating – and intellectually violent – for students of color.

To encourage increased engagement with the ways in which race and racism undergird the American legal system, the Center for Access to Justice at Georgia State University College of Law compiled a Racial Justice Resource List. The non-exhaustive list, which will be updated as suggestions come in, is intended for law faculty teaching core (1L) courses who want to include assignments, readings, and discussion on issues of race. The list includes books, book chapters, law review articles, and multi-media for use in teaching how race influences law across the required curriculum. Where possible, the titles are linked to open-access sources. The resource list also provides suggested language regarding classroom expectations and learning objectives and considerations for how to amplify voices and stories that may not have been central in 1L syllabi.

Incorporating race into class assignments or discussions will likely lead to difficult, and even uncomfortable, conversations. Legal academia reflects the inequality otherwise manifest in the legal system: very few tenured law professors are Black. For white faculty, talking about race may run directly counter to the color blindness once expressly taught as virtuous. Leading a discussion, in a public setting, on a topic that has not been part of one’s scholarly expertise – and may not even feel a part of one’s personal experience – may lead to uncomfortable moments. But the work of antiracism requires that we give ourselves and our students the space to have brave and respectful discussions, to ask questions that will increase awareness of bias and how it manifests in the law.

Antiracism ought to inform every facet of legal education – hiring, promotion and tenure, admission, graduation – and it ought to be a through-line in the core law school curriculum. When it isn’t, we risk graduating lawyers who do not understand the origins of the law or its potential impact on clients, we perpetuate systems of inequality as if they were inevitable and deserving of maintenance, and we do a disservice to our students and to the profession, all the while undermining the commitment to equality we so proudly etched in stone.

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SALT Social Justice in Action

Posted on August 19, 2020 by davidafinger

A Virtual Series Sponsored by 

 The Society of American Law Teachers

SALT encourages law schools across the country to take affirmative steps to promote justice, eradicate racism and support their law school communities in light of pervasive injustices. SALT is proud to announce a virtual series featuring law school teachers sharing their expertise on how to educate the next generation of lawyers, support students of color and dismantle structural inequality and racism in the United States. We will host monthly panel discussions on ways to combat racism and promote equity in law school. This work will include presentations on the integration of anti-racist frameworks in classes, promoting equity and inclusion in online teaching, anti-racist faculty hiring practices, and racialized trauma and fatigue.

Promoting Equity and Inclusion in Online Teaching
 August  21, 2020  3:00 – 4:00 pm ET
Register here:  https://bit.ly/2DbiMli

 Featuring

Goldie Pritchard, Director, Academic Success Program, Michigan State Univ. College of Law
Tasha Souza, Associate Director of the Center for Teaching and Learning, Boise State University
Carwina Weng, Clinical Professor of Law, Indiana University Maurer School of Law
Sha-Shana N.L. Crichton, Director, Legal Writing Program, Howard University School of Law

If you have questions for our panelists in advance of the event,
please submit them here: https://forms.gle/5PuV1LSznYKWQ4Gc9

Racialized Trauma and Fatigue Among Academic Activists
 September 18, 2020 3:00-4:00 pm ET
Register here:  https://bit.ly/2BDeToN

 Featuring

Nikita Gupta, GRIT Coaching Program Director, University of California, Los Angeles
Carla Pratt, Dean, Washburn University School of Law
Rosario Lozada, Associate Professor of Legal Skills and Values, Florida International University Law

Anti-Racist Hiring Practices
October 16, 2020 3:00-4:00 pm ET
Register here:  https://bit.ly/307SZ6M

 Featuring

Tamara Lawson, Dean, St. Thomas University School of Law 
Angela Onwuachi-Willig, Dean, Boston University School of Law 
Sean Scott, President and Dean, California Western School of Law
 

 After registering, you will receive a confirmation email containing information about joining the meeting.

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Addressing Structural Racism in Law School: CUNY Law Faculty Issues Statement and Demand for Action

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.

 

Endorsed by:

  • Mary Lu Bilek
  • Beryl Blaustone
  • Rebecca Bratspies
  • Sue Bryant
  • Janet Calvo
  • Nina Chernoff
  • Douglas Cox
  • Lisa Davis
  • Ryan Dooley
  • Dave Fields
  • Laura Gentile
  • Julie Goldscheid
  • Florence Kerner
  • JM Kirby
  • Jeffrey L. Kirchmeier
  • Sarah Lamdan
  • Stephen Loffredo
  • Matthew Main
  • Camille Massey
  • Andrea McArdale
  • Haley Meade
  • Laura Mott
  • David Nadvorney
  • Jason Parkin
  • Talia Peleg
  • Allie Robbins
  • Ruthann Robson
  • Joe Rosenberg
  • Merrick T. Rossein
  • Jonathan Saxon
  • Franklin Siegel
  • Richard Storrow
  • Erin Tomlinson
  • Sarah Valentine
  • Kara Wallis
  • Alan White
  • John Whitlow
  • Sofia Yakren
  • Deborah Zalesne
  • Steven Zeidman
  • Jean Zorn

Filed under: Best Practices, Best Practices & Curriculum, Best Practices & Setting Goals, Best Practices for Institutional Effectiveness, Best Practices, Diversity & Social Justice, Catalysts For Change, Diversity & Social Justice, Uncategorized | Tagged: , , , , , , , , , , , , , , , | 1 Comment »

A Comprehensive Review of Legislation and Regulation & Administrative Law Course Requirements

Posted on July 3, 2020 by Ben Bratman

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.

leg-reg-requirements-july-2020-bratmanDownload

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.

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Five Tool Lawyers

Posted on April 29, 2014 by dmaranville

Leading Northwest legal practitioner and technology entrepreneur Marty Smith has an interesting post on the Five Tool Lawyer over at Legal Refresh. Using the metaphor of the Five Tool Lawyer, Marty breaks apart the stages of problem solving, incorporating risk analysis in a way I found helpful. In my response Five Tool Lawyers and Legal Education, I critique aspects of the Five Tool Lawyer metaphor for compressing too much into the 1st [Use interviewing skills to gather client facts, goals and needs] and 5th tools[Counsel, document, negotiate and advocate on behalf of client]. But here’s why I thought the metaphor was compelling:

"Compelling, because [it] moves beyond issue spotting v. problem solving to articulate the stages of problem solving, targeting a spotlight on often overlooked aspects. . . . By focusing on risk, the metaphor highlights two often neglected stages of the lawyer’s work – “use judgment to assess actual risks” and “problem solve for best way to meet client’s needs with minimal risk.” At the same time, it implicitly places the legal problem in the larger context of the individual’s life, or the business’s health. And it underscores the fact that lawyers need to know how to assess the significance of legal risks within that larger context."

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