The Imperative and Power of Empirical Research

Posted on February 18, 2021 by Melanie Daily, University of Kansas School of Law

By Anahid Gharakhanian, Southwestern Law School

Allison Korn and Laila L. Hlass’s Assessing the Experiential (R)evolution, recently published in Villanova Law Review, should be celebrated as a much needed example of empirical investigation and analysis in legal education, specifically experiential education.  As aptly noted in the Experiential Education section of Building on Best Practices, “[l]egal education urgently needs empirical research on what methods will best promote deep learning that transfers to practice.” 

For many years, the experiential teaching community has had the benefit of the triennial CSALE Study, providing extensive data about the infrastructure of clinics and externships.  Now Korn & Hlass’s empirical work provides data about the proliferation of deans/directors of experiential education and growth in experiential curricula.  This data sets the stage for the important questions they raise about what law schools are doing about the following:  “working to uplift experiential programming as an essential part of the institution,” and “core to the law school curriculum”; “taking steps to identify, recruit, and support clinicians of color”; and ensuring security of position and voice in law school governance.  Korn & Hlass’s work, along with CSALE’s compilation of data since 2007 about applied legal education, serves as an essential foundation for posing these important questions and joins the clarion call of others that rigorous empirical research is critical in every aspect of our assessment and advancement of experiential education – the students’ learning, role of experiential curricula, and diversity of and equity for experiential faculty. 

I think about the critical importance of empirical work from the vantage point of externships or field placement courses, which provide a singularly unique bridge to practice and where so much of the student’s experience occurs outside of the classroom and the externship professor’s direct observation.  Anecdotally we know that these real world experiences are very important to a student’s professional development and practice readiness as a new attorney.  At the same time, the ABA and some in legal education have worried about the educational rigor outside of the law school setting.  What’s needed is exploration of our impressions and perceptions through rigorous empirical work.  In the world of externships, this translated into research questions that Carolyn Young Larmore, of Chapman University, Fowler School of Law, and I took up in a year-long, multi-school study, assessing students’ success at externships and factors contributing to it (involving three law schools in the same geographic area, with very different externship program designs, and widely different incoming credentials – with 2019 median LSATs of 153, 158, and 168).  The study yielded helpful information about the importance of externships to practice readiness.  Also, a notable finding of our study – related to access – was that students from all three surveyed schools achieved very similar levels of externship success (measured in terms of first-year practice readiness), regardless of widely different entering credentials as well as the academic component of the externship programs.  Similarly, the study found that law school GPA plays a very limited role in predicting externship success.  You can see how this data could be a powerful tool in creating access for law students, from many diverse academic backgrounds and schools, to career-shaping professional experiences while in law school and beyond.

As we tackle empirical questions in experiential education, it’s helpful to think about backward design.  In the case of the experiential programming that we offer to our students, a couple of recent national studies are enormously helpful: IAALS’s Foundations for Practice, a relatively recent national study about what foundations entry-level attorneys need to begin a successful legal career (which is the study that Carolyn and I used to define externship success in our own study – i.e., how close are externs by the end of their externship to first-year practice readiness); and the very recent study by IAALS and Professor Deborah Jones Merritt, Building a Better Bar: Capturing Minimum Competence, with one of its two objectives to “[d]evelop and promote understanding of the minimum competence needed to practice law” (and the second one to “[a]lign the bar exam with research-based concepts of minimum competence”). 

To borrow from IAALS and Professor Merritt, the key here is being guided by research-based concepts.  Whether assessing our students’ learning (as Carolyn and I tackled in our externship study), or raising questions about the role of experiential curricula, and diversity of and equity for experiential faculty – as Korn & Hlass have done – we need to engage in more empirical research and use this powerful tool to inform and advance the critical work of experiential education and educators.

Filed under: Best Practices, Best Practices & Externships, Best Practices, Outcomes & Assessment Techniques, Clinical Scholarship | Tagged: , , , , , | 2 Comments »

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

Posted on February 10, 2014 by Mary A. Lynch

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.

Filed under: Best Practices & Externships, Uncategorized | Tagged: , , , , , , , , , , , , | Comments Off on SRC voted to eliminate Interpretation 305-3 which distinguishes paid employment from academic field placements

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