Examining Our Experiential Experiments

Posted on January 27, 2021 by davidafinger

By Phyllis Goldfarb

In their new article, Assessing the Experiential (R)evolution, 65 Villanova Law Review 713 (2020), Allison Korn and Laila Hlass describe the ways in which experiential education is experimental education.   Faced with the 2014 ABA regulation mandating that all students earn at least six credits toward graduation in experiential courses, clinical education has been responding experimentally to the need to do more experientially, offering more courses in more forms to more students. At the same time, many law schools have been doing more with less, as the need for experiential growth has been accompanied by the diminished availability of resources.  

We can add to the complexities of this picture our burgeoning crises in global health, democratic governance, lethal racism, economic inequality, planetary survival, and other dangerous and pressing social problems that are implicated in the kind of work that clinical education undertakes.  Involving students in urgent and weighty matters of law and justice has long animated the clinical movement.  Have the ABA’s regulatory moves facilitated or impeded these aims in any way?  How is clinical education faring at this challenging moment? 

Korn & Hlass seek to address questions like these empirically, reporting in their article the findings of a 2018 survey they conducted to gather information about how experiential programs have changed in response to the ABA’s six-credit mandate.  The authors find that our experiential experiments have yielded an array of curricular innovations, especially though not exclusively in upper-level courses.  Their article also confirms the trend in most law schools to name a dean or director of experiential education, presumably to help design and oversee the experiential curriculum and to manage expanding experiential programs.  

The latter finding builds on those analyzed in Barry, Dinerstein, Goldfarb, Maisel, and Morton, Exploring the Meaning of Experiential Deaning, 67 Journal of Legal Education 660 (2018). In this article, my co-authors and I observed that despite a rapid increase in the creation of experiential administrator positions, and the assignment of various tasks to their holders, law schools had not fully conceptualized the nature of the position.  Consequently, the meaning of experiential deaning was in the process of invention and negotiation in each dean’s school.  In other words, these roles were experiments. 

Experiments, of course, are designed to be evaluated.  Applying a clinical method of learning, Korn & Hlass urge that we develop processes for evaluating recent experiments in experiential education, so that we can extract the lessons inherent in our experiences with administering, teaching, and reforming it.  Which changes are working well and worth retaining?  Which should be revisited?  Are institutional goals guiding these decisions?  To the extent that experiential administrators are steering these changes, how have institutional goals informed their work?   Are law schools further developing and defining these administrative positions?  Are these positions evolving in a sustainable way?  What conditions best support their sustainability?

The authors, experiential administrators in their respective institutions, have sought to learn from their own experiences in these administrative positions, to ask pertinent questions, suggest possible answers, and frame an assessment project that would guide them, and all experiential educators, in moving forward as knowledgeably and effectively as we can from where we stand now.  A rigorous assessment project of the sort that they helpfully propose in this article would inform our choices about the future of experiential education.

Having seen over many years how experiential learning can enliven, deepen, and transform legal education, I strongly value the expressive quality of the ABA’s regulatory directives to provide that kind of educational engagement to all law students.  I can envision rich curricular possibilities that these directives might support.  But my underlying fear has been that general law school administrators, especially those lacking awareness of the insight-cultivating aims of clinical pedagogy, would seek bare bones fulfillment of the mandate, finding the most limited and low cost ways to offer all students six experiential credits and shortchanging the educational opportunity that the mandate might represent.  Has that happened?  Korn & Hlass have begun to elicit the sort of information we need and to frame the kind of assessment process that we can use to better understand what the ABA’s regulatory efforts have wrought.

In gathering and analyzing experiential education’s experimental data, Korn & Hlass have taken an important first step toward a process of conscious assessment and collective deliberation that hold promise of improving our experiential programs and of identifying meaningful, inclusive, and sustainable practices for the next stage of development in experiential education.  The experiential education community would be well-served by joining them in this important and productive endeavor.

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Assessing the Experiential (R)evolution

Posted on January 25, 2021 by davidafinger

by Professors Laila Hlass (Tulane Law) and Allison Korn (UCLA Law)

In the midst of calls for law schools to meaningfully address systemic racism in our institutions and a pivot to virtual and hybrid learning in response to the global COVID-19 pandemic, the time is now to consider new paths forward in experiential education. Furthermore, in the wake of deadly assaults on our democracy, law schools’ should grapple with how to teach  justice and social change formally through curriculum and informally through programming. We hope to spark conversation and action regarding reimagining legal education, specifically contemplating the roles that experiential education and experiential faculty should play in the future of law schools.

For more than a century, law schools did not generally mandate any experiential education, but in 2014, the ABA adopted six-credit mandate, alongside a packet of experiential reforms.  In 2018–2019, as the first classes of law students graduated under the revised ABA Standards, we conducted a national survey of ABA-accredited law schools, asking about changes in experiential education and we received responses from 126 institutions.

Our article Assessing the Experiential (R)evolution, recently published in Villanova Law Review, reports findings from this empirical investigation into the experiential landscape shift since the revised Standards were adopted. From our survey, we learned of a recent proliferation of deans and directors of experiential education. Along with this came continued growth in experiential curricula, including among experiential courses in the first-year curriculum, and experimentation with new pedagogical approaches, such as adopting hybrid experiential courses termed “labs” and “practicums.” These trends of expansion and experimentation raised many questions for us:

  • As law schools increasingly add deans and directors of experiential education, experiential courses, and new tools for course assessment and approval, while experimenting with new course models, are they also working to uplift experiential programming as an essential part of the institution?
  • As law schools hire new experiential faculty and appoint experiential deans and directors, are they being responsive to the clinician diversity imperative, taking steps to identify, recruit, and support clinicians of color?
  • Are law schools not only integrating experiential deans, directors, and faculty into the greater faculty but also ensuring that they have reasonably similar security of position and a voice in law school governance?
  • While investing in integration across law school coursework, have law schools acknowledged that experiential education is core to the law school curriculum?

Our article proposes a series of recommendations aimed at ensuring sustainability for experiential deans and directors, implementing equitable practices for experiential curriculum and faculty development, and assessing curricular changes thoughtfully and deliberately. But this proposal is only a starting point for deeper discussion about how we might approach our experiential programs and renew our collective vision for robust, innovative, justice-centered experiential education. Over the next few weeks, the Best Practices Blog will host reactions to and commentary on these themes from a deep bench of extraordinary colleagues in the experiential community. From building sustainable administrative roles to examining and improving racial diversity among experiential faculty; from increasing experiential offerings for first-year students to highlighting changes within externship and field placement programs – each commentary will help us assess and build on current experiential programs and call on our institutions to better understand and support the increasingly vital role experiential education plays in the legal academy.

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How LSSSE Informs Best Practices in Legal Education

Posted on January 11, 2021 by davidafinger

Chad C. Christensen and Meera E. Deo

The Law School Survey of Student Engagement is based on decades of empirical research on effective educational practices showing that the more engaged students are, the better their academic and professional outcomes.[1] Since 2004, LSSSE has conducted an annual survey of law students in partnership with law schools across the country.[2] Survey results provide an opportunity for schools to better understand their student population and for LSSSE staff to document, reflect on, and influence trends in legal education.[3]

The LSSSE survey items were created out of best practices in teaching and learning; as such, they align well with Roy Stuckey’s Best Practices for Legal Education and the Carnegie Foundation’s Educating Lawyers – two publications that serve as foundational works of this blog.

For this post, we focus on best practice concepts described by Stuckey in his book and highlighted in Chapter 4, “Best Practices for Delivering Instruction, Generally”.  These recommendations come from Section C, which urges professors to “Create and Maintain Effective and Healthy Teaching and Learning Environments” by adherence to three principles:

  • Have High Expectations
  • Foster a Supportive Environment
  • Encourage Collaboration

Have High Expectations

Two questions on the LSSSE survey focus on high expectations and academic rigor.  The first asks students how often they worked harder than they thought they could to meet faculty members’ standards or expectations.  In 2019, 59% of law students frequently[4] worked harder than they thought they could to meet faculty standards or expectations, reflecting an increase since 2012 (52%). This positive trend indicates that students are being challenged in more meaningful ways than they were in the past and working hard to meet the high expectations of their professors.  

Another LSSSE question asks students to report the extent to which their exams have challenged them to do their best work.  For this question a score of five or higher on a seven-point Likert-scale indicates significant challenge.[5] In 2019, over 90% of LSSSE respondents indicated they were being challenged by exams in class. 

Taken together, this LSSSE data indicate that teachers are demanding a lot of their students, meeting Stuckey’s first suggestion to have high expectations. Students are also working hard and producing their best work to meet the challenges their professors put before them.

Foster a Supportive Environment

Creating a positive and supportive learning environment is critical to student success.[6]  A key component to this is student-faculty interaction – the ways and frequency with which faculty connect and interact with students in and out of the classroom.  Law students report overwhelmingly positive relationships with faculty.  In 2019, over three-fourths (76%) of students reported strong positive relationships with faculty.[7] Furthermore, 91% believed their instructors care about their learning and success in law school and 82% considered at least one instructor a mentor whom they could approach for advice or guidance.

Thus, faculty are creating supportive environments in class and effectively conveying their support to students.[8]

Encourage Collaboration

Teamwork and collaboration also are critical to student learning and the development of important professional skills for effective lawyering.[9]  It is important for students to engage with both faculty and classmates. Though students report positive relationships with faculty, LSSSE data reveal that law students are not collaborating with faculty as often as they could. A majority of students work with faculty on activities other than coursework, although a full 46% never do so.  Even more troubling, almost a quarter (23%) of law students report never having conversations with faculty outside of class. 

Surprisingly, students work with peers at even lower rates than they collaborate with faculty.  Only a quarter (24%) of law students report frequently[10] working with students on projects during class. One-third (33%) frequently work with classmates outside of class, again showing room for improvement.

When considering best practices in legal education, there is much to learn from Stuckey’s suggestions. And faculty have learned! LSSSE data reveal that students are working hard to meet their professors’ high expectations. Faculty also are succeeding in fostering a supportive classroom environment, as measured by overwhelmingly positive student-faculty interactions. However, professors can do more to promote teamwork and collaboration both inside and outside of class and both with students and amongst students themselves.

[1] More information on LSSSE is available at: https://lssse.indiana.edu/.

[2] To participate in the LSSSE survey, please contact the authors of this post or visit: https://lssse.indiana.edu/register.

[3] For instance, LSSSE Reports have shared trends regarding Diversity & Exclusion, The Cost of Women’s Success, and the ways in which Relationships Matter. For more information on LSSSE Reports, see https://lssse.indiana.edu/annual-results.

[4] This frequency includes respondents choosing “Very often” or “Often”.  

[5] Response options for this question range from 1 (“Very little”) to  7 (“Very much”).

[6] Stuckey, R. T. (2007). Best practices for legal education: A vision and a road map. Clinical Legal Education Association. P.87; Chickering, A. W., & Gamson, Z. F. (1987). Seven principles for good practice in undergraduate education. AAHE bulletin, 3, 7.; Wawrose, Susan, A More Human Place: Using Core Counseling Skills to Transform Faculty-Student Relationships (May 1, 2019). 55 Willamette L. Rev. 133 (2018), Available at SSRN: https://ssrn.com/abstract=3088008 or http://dx.doi.org/10.2139/ssrn.3088008

[7] These strong positive relationships are represented by a score of five or higher on a seven-point Likert scale.

[8] Women of color faculty, who typically carry more of the student services load than their colleagues, should be recognized for this work as it has clear implications for student outcomes and institutional success. Meera E. Deo, Unequal Profession: Race and Gender in Legal Academia (2019).

[9] Hamilton, N. W. (2014). Empirical research on the core competencies needed to practice law: WHAT do clients, new lawyers, and legal employers tell us?. The Bar Examiner, September, 14-34; Hamilton, N. W. (2019). Fostering and Assessing Law Student Teamwork and Team Leadership Skills. Hofstra Law Review, Forthcoming.

[10] This frequency includes respondents choosing “Very often” or “Often”.

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The Disparate Treatment of Clinical Law Faculty

Posted on January 4, 2021 by Melanie Daily, University of Kansas School of Law

By: Robert Kuehn, Washington University School of Law

In her recent presidential message, Abolish the Academic Caste System, the president of the American Association of Law Schools (AALS) called on law schools to address the caste system within law faculties by providing parity in security of positon and salary to non-tenure/tenure track faculty, such as the overwhelming majority of law clinic and externship instructors.[i] Data from the just completed Center for the Study of Applied Legal Education (CSALE) 2019-20 Survey of Applied Legal Education of  95% of law schools and 1,300 law clinic and externship instructors show widespread disparate treatment of clinical instructors (i.e., law clinic and externship instructors) and a lack of progress in providing parity between those who teach in law clinics and externships and those teaching doctrinal courses.[ii]

In 1998, 46% of clinical teachers were in tenure or tenure-track positions.[iii] Yet as the chart below indicates, the percentage of clinical faculty in tenure/tenure track positions, even when including lesser status clinical/programmatic tenure positions, has declined to just 29%, and decreased by more than 30% over just the last 12 years (temporary appointment clinical fellows excluded from all tables).


  Source: CSALE 2019-20 Survey of Applied Legal Education

Though there have been notable exceptions at a few schools, law clinic and externship hiring has disproportionately been for contract positions since the 2010 downturn in law school applications and accompanying financial challenges.

This increasing pattern of hiring non-tenure track clinical faculty can be seen below when comparing employment status to years of clinical teaching. Forty-six percent of clinical faculty teaching more than 12 years are in traditional or clinical/programmatic tenure or tenure-track positions. In contrast, only 23% of those hired within the last four-six years and just 16% of those hired in the last three years are in tenure/tenure-track positions. Although some clinical faculty hired into non-tenure-track positions may be permitted to move later into tenure-track positions, those limited instances cannot account for the increasingly lower status among more recently hired clinical instructors.


Source: CSALE 2019-20 Survey of Applied Legal Education

Non-tenure status has consequences for clinical faculty, beyond the limited participation in faculty governance and lower prestige that generally come with appointments other than traditional tenure. The table below compares the salaries the over 70% of law clinic and externship faculty not tenured/tenure track with the salaries reported by doctrinal faculty at the same schools. These clinical faculty are paid, on average, $30,000 per year less than their doctrinal colleagues at similar points in their careers. Even when salaries of clinical faculty with traditional or clinical tenure/tenure track are included in the calculations, clinical faculty on average make over $20,000 less than their doctrinal colleagues.

Sources: CSALE 2019-20 Survey of Applied Legal Education; 2018-19 SALT Salary Survey

The disparate treatment of clinical faculty in tenure appointments is most pronounced at schools ranked higher in the U.S. News annual law school rankings. Among schools with at least half of their clinical faculty in tenure/tenure-track positions, only one school ranked in the top 25 primarily appoints clinical faculty to traditional tenure-track positions, yet over 36% of the 50 lowest ranked schools provide this status to their clinical faculty.

Source: CSALE 2019-20 Survey of Applied Legal Education

Some law school clinical education programs even treat types of clinical instructors differently, providing less security of position and salary to those who teach in externships. CSALE survey data show that externship instructors are less likely to have traditional or clinical tenure/tenure track when compared to their law clinic peers (25% vs. 38%) and are almost 15 times more likely to be primarily in an administrative position with only occasional teaching responsibilities and sometimes little training in externship pedagogy.

Source: CSALE 2019-20 Survey of Applied Legal Education

Salaries of externship instructors also are considerably lower, with median annual salaries, on average, $20,000 less per year than those of law clinic instructors:

Source: CSALE 2019-20 Survey of Applied Legal Education

The latest CSALE survey shows that in spite of occasional stories about a school adopting tenure for its clinical faculty, the AALS president is right ─ the academy remains highly caste-like in its disparate treatment of clinical faculty, especially at higher ranked schools and even within clinical education programs at some schools. Indeed, if anything, progress toward parity appears to be slipping as an increasing percentage of new teaching positions in law clinics and externships are without the security of position and salary of doctrinal faculty.

The AALS has moved lately towards an Executive Committee comprised entirely of deans and former deans. If the members of the Executive Committee support their president’s call to end the caste system, they could act to do so at their own schools and call upon their fellow deans across the country to do the same.

[i] Darby Dickerson, Abolish the Academic Caste System, AALS News (Fall 2020), at https://www.aals.org/about/publications/newsletters/aals-news-fall-2020/presidents-message-abolish-the-academic-caste-system/.

[ii] Center for the Study of Applied Legal Education (CSALE), 2019-20 Survey of Applied Legal Education (2020), at https://www.csale.org/#results.

[iii] Richard K. Neumann Jr., Women in Legal Education: What the Statistics Show, 50 J. Legal Educ. 313, 328 (2000).

[iv] 2018-19 SALT Salary Survey, SALT EQUALIZER (Nov. 2019), at https://www.saltlaw.org/wp-content/uploads/2015/03/SALT-salary-survey-2019-final-draft.pdf.

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Welcome, 2021! – and a Round-Up of Pedagogy Sessions at this week’s AALS Annual Meeting

Posted on January 4, 2021 by Melanie Daily, University of Kansas School of Law

Dear readers, authors, commenters, and friends far and wide:

Happy New Year!

We look forward to another year of exciting and thought-provoking discussion with you through the Best Practices for Legal Education blog. 

We begin 2021 with the AALS annual meeting, being held virtually, that you can access here. 

The conference will include some fantastic programs to help us share skills and techniques in this tumultuous teaching environment. We’ve compiled a round-up of the sessions best suited for those interested in deepening our grasp of pedagogy across a wide range of subject areas. Please feel free to comment below on what you’re learning as the conference progresses!

Tues. Jan. 5

4:15-5:30pm: Section on Civil Rights, Co-Sponsored by Criminal Justice: Teaching About Civil Rights During Incarceration

4:15-5:30pm: Section on Commercial and Consumer Law, Co-Sponsored by Teaching Methods and Technology, Law, and Legal Education: Teaching Commercial Law in the 21st Century

4:15-5:30pm: Section on Professional Responsibility: Bright Ideas and Best Practices for Online Teaching in Professional Responsibility Courses

Weds. Jan. 6

11am-12:15pm: Section on Pro Bono & Public Service Opportunities, Co-Sponsored by Clinical Legal Education, Leadership, and Poverty Law: Calling Out and Leaning In to Racial and Class Inequities in Experiential Learning Opportunities

2:45-4:00pm: Section on Global Engagement, Co-Sponsored by Teaching Methods, Technology and Law and Legal Education: Virtual Mobility: Innovating and Promoting Global Legal Education in Times of Crisis

4:15-5:30pm: Section on Criminal Justice: Beyond 2020: Decarceral, Anti-Racist and Non-Traditional Teaching

Thurs. Jan 7

2:45-4:00pm: AALS Discussion Group: How the Pandemic Made Me a Better Teacher – Lessons Learned and Plans for Change

4:15-5:30pm: Section of Family and Juvenile Law: Family Law – Creative and Experiential Teaching Tips

Fri. Jan. 8

2:45-4:00pm: Section on New Law Professors: Spreading the Word – Law Professors as Teachers, Scholars, and Legal Influencers

4:15-5:30pm: Section on Teaching Methods: Best Practices for Creating and Administering Mid-Term Exams

4:15-5:30pm: Section on Women in Legal Education, Co-sponsored by Clinical Legal Education, Legal Writing Reasoning, and Research and Teaching Methods: Gender, Power, and Pedagogy in the Pandemic

Friday, Jan. 8 2:45-4:00

Sat. Jan. 9

2:45-4pm: Section on Balance in Legal Education, Clinical Legal Education, and Leadership Joint Pedagogy: Teaching Leadership Skills in a Time of Crisis

As you consider your own teaching and writing, please consider posting your original content with us.  You can learn more about the purpose and history of the best practices blog here.

With best wishes for a great 2021,

Melanie and Davida

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Looking At Ourselves–How Can Reduce Barriers to Entry in the Legal Profession?

Posted on December 21, 2020 by davidafinger

Jennifer S. Bard, Visiting Professor of Law, University of Florida Levin College of Law

Over a series of past posts, I have looked at how law school could be adapted so that it does not disadvantage students who come not already knowing how to play the law school game. As we have known for a long time, some groups of students experience more initial success than others in law school–and these differences are magnified by the effect first semester grades can have on lifelong implications in terms of employment opportunities. Most law students catch on quickly after the first semester, but their self-esteem may have already been severely damaged in what Sara Berman has called “a zero-sum environment where initially-lower performers are not encouraged to improve in consistent and meaningful ways”.

But taking a step back from equalizing the experience of students already in law schools, it may be time to think about who isn’t there–and why. What aspects of legal education, such as the cost and program structure, create barriers to entry?  And how do these barriers to entry worsen an ever growing justice gap in the United States where only a small percentage of people who would benefit from legal representation have access to a lawyer?

The primary barriers are the cost of legal education and how it is structured.. The challenge we face is that there are barriers at every stage of the process, from high school graduation  to college entry and beyond.  Homelessness, substance use, mental health can all be factors in making  higher education inaccessible. Also, we know of the barriers students with disabilities face when they get to law school (or college), but we don’t know how many people who chose not to attend might have done so if they could do so from a more accessible location.  And of course, many scholars have pointed out that systemic racism is itself a formidable barrier in gaining admission to law school. 

We can’t as legal educators end the systemic racism and economic inequalities that block many people from even being eligible to attend law school.  Nor can we always reconfigure our aging infrastructure. But we can take responsibility for what we charge students to attend and how we structure the conditions for completion.

The first step to lowering the barriers within our own control is to recognize them. We need to re-evaluate the very structure of legal education–which can be most easily seen by reviewing the standards that both govern and reflect current practice. My intent is not to criticize the existing ABA standards or those who drafted and uphold them nor to suggest that they be rescinded, and legal education deregulated.   But rather to recognize the consequences and costs of these practices so we can better evaluate their value.  Below is a list of some obvious suspects–I’m sure everyone can generate more.

*Restrictions on Distance Education

With few exceptions, approved law schools cannot confer a degree on a student who does not earn two-thirds of their credits in face to face instruction. This continues to put law school out-of-step with nearly every other degree-granting program in the United States and to both the cost and physical demands of attending law school.

*Expensive Eligibility Requirements:

B.A. Required

Next on the list, we need to consider the cost in time and money of requiring that students earn a B.A. before enrolling in law school.  Lawyers in Europe, South America, Africa, Asia, Australia, New Zealand are all practicing laws at the highest possible levels without seven years of post-secondary specialty training.

 *Length of Degree and Time Limit on Completion

Not only must students complete a B.A., but they must also accumulate 87 credits within 84 months of enrollment.  This of course adds cost in the form of tuition, but it also requires an even greater expenditure of time away from family and limit on the ability to earn a living.

Each of these requirements, indeed each of the Standards which govern legal education, were developed with the best intentions, but if the pandemic has taught us anything, it’s that just because we haven’t done something before doesn’t mean we can’t or shouldn’t find a way to do it now.

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Using What We’ve Learned About the Effect of Racism and Economic Disparities on Law Students During the Pandemic

Posted on December 15, 2020 by davidafinger

Jennifer S. Bard, Visiting Professor of Law, Levin College of Law

In my last two blog posts, I wrote about how law school’s structure unfairly benefits students who come in knowing how the game is played and those with the resources to play it under the best possible conditions.  I’ve also linked legal education to the systemic bias of the legal profession.

Our current situation, a still spreading deadly pandemic that has so far claimed over 250,000 lives in the U.S., has intensified those inequalities for everyone.  The evidence is already coming in of how the Pandemic is harming first-generation students.  

But it has also provided a clearer window into what was always apparent to student services professionals but not so much to faculty–how much harder the law school experience is for students who come to it with fewer resources of every kind.   

For example, online learning is only as good as the environment in which students learn and we are already seeing effects on students with the least resources. In normal times, all of our students have near 24/7 access to quiet, safe, comfortable places to study, engage in co-curricular activities, meet with faculty, and even take exams. Places without pets, younger siblings, or household chores.  They have lightning fast internet, large monitors, bulk printers, and IT support for when things go wrong.

But of course a lot of what’s going isn’t visible in a 50 minute Zoom session.  On campus, students have access to food either directly, by attending events, or can sometimes be signed up for university meal plans.  But in a world where by some estimates, pre-pandemic as many as half of all U.S. college students experience food insecurity hunger is an increasing peril as is homelessness.   The end of the moratorium on evictions means that as many as 8 million people will lose their homes over the next four months. 

We  also know that during the pandemic college students are facing worse mental health and that for many of our students home is not a safe place as they face abuse from parents and domestic partners. Research is emerging that like other segments of the population, students are drinking more during the Pandemic and are likely part of the increase in overdose deaths.

And then there’s the virus itself. As we all know (and have known for a long time), it very much does infect young adults–and it can hit them hard.   All the factors that contribute to racial bias in health care are magnified by those that put Black, Indigenous, Latino communities at greater risk of infection and, once infected, at greater risk of dying.  In addition, the harm caused by the uncertainty, fear, and loss triggered by living in pandemic conditions.  These are only magnified by our law students who have faced trauma as bar examiners  are caught flat footed and many of the pathways to employment, such as in-person summer placements, were disrupted.

Layered on top of economic disparities issues of systemic racism, sexism, and homophobia, these economic disparities mean that students come into law school with very  different levels of debt. Which itself is affected by racial disparities.   These factors are magnified in law students who come to us after four years of borrowing money for college. (The best information on law school debt is at Accesslex).

The Pandemic will end, and law students will once again have full access to law school facilities. But this glimpse into the real differences in backgrounds and resources should be a starting place for us to look at the law school experience, the gateway to the legal profession.

If any good can come from the experience of being so much closer to our students’ day to day lives, it should be an increased urgency to think about how we can make law school more inclusive. 

In my next post, I will be more specific starting with a proposal reduce the cost of a law degree by moving a year of course work to the undergraduate level.  Doing that would reduce the barriers to entry in the legal profession that saddle lawyers with debt and deprive most individuals in need of legal help from those best trained to assist them. 

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Best Practices in 2020

Posted on December 11, 2020 by davidafinger

Sean M. Scott, President and Dean – California Western School of Law

As a dean, I have spent a tremendous amount of time over the past six months contemplating best practices as regards to students and how to manage the challenges wrought by COVID 19.  Should we move to pass/fail grading?  How can we incorporate best practices for online learning and teaching into our classrooms?  What are best practices as to the administration of exams? We have spent less time as a community discussing the impact of the virus on faculty, particularly untenured faculty.  The virus has intensified the existing tension between the demands of career and the demands of family.  For those faculty with school aged children, or elderly relatives, those competing demands are likely to negatively impact the faculty member’s ability to diligently pursue their research and scholarship.  What should the legal academy’s response be to those whose research and writing have been derailed because they are home schooling, or caring for elderly relatives whose isolation and physical vulnerabilities create increased demands on caregivers?  The faculty most likely to be facing this dilemma are women, as women regardless of sexual orientation, remain primarily responsible for childcare and elder care. 

Anecdotally, my conversations with my dean colleagues reveal that they are addressing these issues on a case by case basis.  Some faculty on the tenure track are approaching their deans seeking an extension of the tenure clock.  Other faculty are reluctant to seek such an extension, fearful that the request will be detrimental to their bids for tenure.  COVID has exacerbated this long-simmering tension between work and family demands.  What should a best practice be under these circumstances?  My recommendation is that we take the burden off of individual faculty members to make specific requests from their deans, and move towards a policy of granting a blanket one-year extension of the tenure clock for all pre-tenure faculty.  Faculty could opt out of the extension, rather than having to seek an individual accommodation.   As a best practice, it would reflect a profession wide recognition of the sacrifices that faculty who are caregivers must make, and takes a stand that they should not be penalized for meeting the immediate needs of family, the byproduct of which may be the delayed ability to focus on their research and writing. 

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Dean Darby Dickerson — on Equity, Security, and Status

Posted on December 2, 2020 by davidafinger

Many of us were inspired to hear AALS President Darby Dickerson, Dean, UIC John Marshall Law School speak about “caste”, “candor”, and “change” during her address at the January 2020 Annual Meeting.

In this new article, first posted in the AALS Newsletter, she follows up with some worrisome data from the 2019-2020 CSALE study, works through potential harms to schools and students, and issues a call to action to address issues of pay equity, security, and status.

We value the conversations and discussions that often happen live and informally at in-person conferences as we share our progress (or lack thereof). So, dear readers, please let us know in the comments about any promising practices or initiatives at your schools. How are leaders addressing pay equity, security, and status in an era of hiring freezes and financial insecurity? What changes are you working toward?

Warmly,

Davida and Melanie

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Could We Create a New Bar Exam?

Posted on November 30, 2020 by davidafinger

Deborah Jones Merritt, Distinguished University Professor and John Deaver Drinko/Baker & Hostetler Chair in Law, The Ohio State University.

A few weeks ago, Logan Cornett and I published a major study of the work that new lawyers do—as well as the knowledge and skills they need for that work. John Lande has already offered two thoughtful posts about the study (thanks, John!). We think the research offers important information for legal educators, bar examiners, and workplace supervisors: we need to align education, licensing, and supervision to improve the service that new lawyers provide clients.

Will it be possible to achieve that alignment? In particular, can we make the bar exam a more valid assessment of the knowledge and skills that new attorneys need? I hope so. Neither states nor the National Conference of Bar Examiners (NCBE) have ever validated the current exams; that means we have no evidence that the skills and knowledge assessed on the exams match the ones that new lawyers use in practice. NCBE’s current attempt to validate the exam—through survey evidence—does not capture sufficient detail about the ways that new lawyers use their knowledge and skills in the workplace. Our study, based on 50 focus groups held in locations across the country, provides those more detailed insights. Combining our findings with those from NCBE’s study and other research could yield a valid licensing process.

An invalid exam would be embarrassing enough for a profession that prides itself on logic and reason, but our current bar exams have another flaw: they pass white candidates significantly more often than candidates of color. An exam that has never been validated, yet discriminates against candidates of color, is unthinkable in the modern age—and yet, we have tolerated these exams for decades.

It’s time to change, but will we have the courage to do so? Our profession has a deep attachment to closed-book exams, multiple choice questions, and time-pressured tests. The research that Logan Cornett and I did convincingly shows that none of these assessment methods are appropriate for the legal profession. Entry-level lawyers work from sources, not memory; they gather information to solve open-ended problems rather than choosing one canned answer from four; and, although they often practice under time pressure, the time constraints on the bar exam are dangerously unrealistic.

We need to challenge all three of these obstacles to a valid licensing process. Our report suggests many ways to accomplish that end. Here’s just one modest proposal that would significantly improve the validity of the bar exam:

  • Maintain the Multistate Professional Responsibility Exam (MPRE), which tests knowledge of basic principles of professional conduct, but make the exam open book. No one can wind their way through the dense rules of professional conduct and commentary without previous study, so an open-book exam won’t make the test “too easy.” On the contrary, an open-book exam would encourage new lawyers to check the rules and commentary whenever they face a conduct issue. That’s a habit we want to encourage, not discourage.
  • Maintain two performance tests like the ones currently prepared by NCBE, but allow 3 hours (rather than 90 minutes) for each test. Expanding the time frame would make these tests more realistic measures of minimum competence. It might also make grading more reliable because graders would be faced with real-world products produced under realistic time constraints.
  • Create a 3-hour research exam that consists of multiple-choice or fill-in-the-blank questions. This exam would test the kind of quick research that lawyers do routinely: What is the statute of limitations for medical malpractice in Ohio? Does a will need witnesses to be valid in Texas? Give candidates access to any online tools they desire to do this research.
  • Create a 3-hour, multiple-choice exam that tests (a) basic understanding of U.S. legal processes and sources of law OR (b) a single substantive subject (such as civil procedure, contracts, business law, or family law). If the latter, consider giving candidates a choice of the area in which they wish to test.

Our research suggests that the final doctrinal component of this exam should be open-book; new lawyers simply don’t work from memory. Instead, they internalize basic principles that allow them to identify issues in a client problem and find the specific rules they need to address that problem. But if bar examiners insist on a closed-book exam component, they could make this portion of the exam closed-book. Memorizing the rules related to a single subject—especially if the subject reflects an area in which the lawyer hopes to practice—more closely parallels the work that new lawyers do than memorizing the rules that govern ten or more fields.

A bar exam with the four components listed above could be administered according to our current schedule. I.e., candidates could take the MPRE on one occasion and the other three components over two days in late July or February. Alternatively, the proposed exam could be divided into five different components (the MPRE, each of two performance tests, the research test, and the doctrinal test) and states could allow candidates to take the components at different times and in any order. Breaking the exam into components would relieve some stress and give candidates more flexibility. It might also allow candidates to determine, while still in law school, that they lack skills needed for law practice—and either choose a different career or remedy those deficiencies through more coursework.

Our report offers other options for licensing, including a rigorously structured diploma privilege. We also recommend that states complement any written exam by requiring candidates to complete law school clinics and courses in client counseling and negotiation. Those experiences assure instruction, practice, and feedback on skills that are difficult to test through a written exam.

It’s time to get serious about aligning legal education and licensing with the work that new lawyers do. Only then will we fulfill our mission of protecting the public.

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Davida Finger (Loyola New Orleans) and Melanie Daily DeRousse (Kansas) Begin Work as Editors for Best Practices in Legal Education Blog 

Posted on July 20, 2020 by Melanie Daily, University of Kansas School of Law

As Mary Lynch announced in her July 13, 2020 farewell post, we are taking over as the editors of the Best Practices in Legal Education Blog. Mary’s post tells us about the Blog’s birth and growth out of CLEA’s Best Practices Committee’s work on the Best Practices in Legal Education book and the collaboration that led to the publication of Building on Best Practices.

Now that we have spent a little time looking back, we are excited to share a little about who we are and where we are headed.

Who we are:

  • Davida Finger is a Clinic Professor and Associate Dean of Students and Experiential Learning at Loyola New Orleans College of Law. She founded the Community Justice section of the Law Clinic where she and her clinic students have represented on housing, special education, and other civil rights matters with a focus on movement lawyering. Davida received the Bellow Scholars award from the AALS Clinical Association for her empirical research on New Orleans eviction geography that documented the discriminatory impact of evictions. She is the founding director of the College of Law’s Incubator Program for solo practitioners working for social justice. Davida recently completed a 2-year term as the president of the Society of American Law Teachers (SALT) and is currently teaching the externship course.
  • Melanie Daily DeRousse is a Clinical Associate Professor and Director of the Legal Aid Clinic at the University of Kansas School of Law. Melanie began work at KU in 2015 after she responded to a job posting that invited essays on how candidates would reinvent the then-47-year-old clinic by applying the principles in Best Practices in Legal Education. In her second term as a CLEA board member, she co-chairs the Best Practices in Pedagogy committee and serves on the Elections committee. She presents on legal education pedagogy with other Best Practices committee members at regional and national conferences, and also recently worked on the planning committee for CLEA’s 2020 New Clinicians’ Virtual Conference. Her clinical work focuses on juvenile justice, criminal defense, and child welfare; outside the clinic, she teaches and writes about family law and engages in university work on promotion, tenure, and pay equity, among other things. Before joining KU Law, Melanie represented survivors of intimate partner violence in family law matters through Legal Services of Eastern Missouri. She was a racial justice fellow in the inaugural class of advocates through the Shriver Center’s Racial Justice Institute.

Where we are headed:

It is humbling, to put it mildly, to be at the helm of such an insightful and collaborative group of contributing authors. As Mary mentioned, this Blog continues to evolve and spark “collaboration on steroids” as new ideas are generated, implemented, assessed, and modified. It is a powerful home for vetting ideas about teaching. We hope to continue to nurture the imaginative, inquisitive, and aspirational tone the Blog has cultivated over the years. As we focus our work as editors, we note the emergence of three main content areas worth highlighting:

  • Teaching justice by doing justice work: we will highlight efforts around inclusion, diversity, and radical change to upend structural racism in legal education and academic institutions;
  • Pedagogical (r)evolution: we will continue the Blog’s intense discussion of legal education reform and seek to emphasize emerging ideas about how we teach in ever-evolving classrooms with a priority on justice ideals; and
  • Large scale policy changes affecting teaching: we will share advocacy around big-picture issues in legal education – changes in ABA standards, forthcoming CSALE studies, structural changes in higher education that impact legal education.

In addition, we hope to use the tools of social media to encourage greater engagement in these discussions and feature prominently the voices of colleagues teaching diverse topics across the legal education curriculum. We welcome new authors, voices, and comments as we seek to broaden the conversation. CLEA is self-reflective and self-critical in understanding that, as an organization, it must do more to amplify and expand all manner of justice including through this Blog.

And, finally, a thank-you and a goodbye:

Finally, thank you to Mary Lynch, founder and 13-year editor of the Blog. We knew from reading the Blog that she was a very busy and involved editor; but during this transition, we had the first opportunity to see just how much she does behind the scenes to keep the conversation interesting, interactive, inclusive, and meaningful. She has been as thoughtful and supportive in this transition as could be possible. We are grateful that she will stay on as “Editor Emeritus” as the Blog continues to grow. Mary, thank you for all that you have done to create a space to engage all legal educators in a thoughtful and productive discussion about why, how, and what we teach, and why it matters.

 

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Top 5 Tips for Teaching Law Online

Posted on July 17, 2020 by Michele Pistone

The COVID-19 pandemic has transformed legal education.  As law professors, we find ourselves in a new era of online teaching that is fraught with uncertainties and new challenges.  We face the task of redesigning our courses while continuing to teach effectively and struggle to figure out how to design an online law course that is both effective and engaging.

As a longtime proponent of online educational programs,  I surveyed the legal academic community to identify the five most common “pain points” experienced over the last several months.  The data informed a webinar I conducted last month for the AALS Section on Technology, Law and Legal Education (click here to watch it), which I recently developed into a 3-day Bootcamp on Designing Your Online Law Course.  In this post, I address each pain point in turn, with the aim to provide strategies and highlight some advantages of online education.

Making the Experience Like a Classroom

Colleagues ask how they can replicate the traditional classroom experience.  They want to maintain lively class discussions on Zoom, but find it difficult to engage students and encourage participation.  Many struggle with multitasking between controlling the class narrative, presenting their slides, and monitoring the chat function.  So, the first pain point is how to I replicate the classroom experience using online modalities?

The answer is simple: you can’t.  Online learning is different than traditional classroom teaching.  When teaching online, we need to adopt a new mindset.  In my view, the first step in adopting a new mindset is to appreciate that “teaching” and “learning” are two different verbs performed by two distinct groups of actors.  For years, I assumed that if I taught a topic, my students learned it.  Not, I realize the mistake in that way of thinking and have started to think about teaching and learning from my students’ perspectives.  By unbundling the teaching and learning processes, we can be more deliberate about how students learn best.  I think that is the first step in building an effective online course.

 Engaging Students

Being cognizant of the learning side of the process will also guide us in engaging students.  The second “pain point” articulated has to do with student engagement; “how to I engage my students online?” The solution is to shift to a student-centered design approach.  Student-centered design is a concept I borrowed from user-centered design, a design-thinking approach that has been successfully employed by start-ups and other new ventures.

User-centered design, or design thinking, teaches us to start by gaining a deep understanding and empathizing with our end users—in this case, our students.  What do we know about our students?  We know that they are learning at home; at home they likely face many distractions, have a shorter attention span, and might be dealing with familial obligations.  If we acknowledge these realities as we develop our syllabus and engage in course design, we know that we will want to chunk up the learning into smaller pieces to keep students engaged.

Student-centered design will also guide our course design by getting us to clearly articulate the learning goals for our courses and for each unit (class, week, section).  The guiding questions here are: what do we want our students to know, be able to do, and value when they finish the course/unit?

Next, plan the assignments and readings your students can complete on their own time (cases, statutes, regulations, articles, treatises), as well as the active learning activities (chunked videos, narrated slides, podcasts, exercises, role plays, discussion boards, reflections, breakout rooms, Socratic dialogue, etc).  Lastly, give students formative assessments such as quizzes, and provide ample feedback on discussion boards and written drafts/exercises.  This may entail more planning, grading, and monitoring than in-person classes.

Assessing Learning and Providing Feedback

The third “pain point” centers around gauging student learning.  For that, online education offers a lot of options to gather feedback about and assess student learning.   You can use online tools to assess if students are moving toward the learning goals.  Indeed, online learning makes it easy to insert periodic formative assessments—either graded or ungraded – throughout the course.  In law school we are used to summative assessments.  Summative assessments, while the cornerstone of gauging law school performance, do not give students feedback as they are in the process of learning.  Learning theory tells us that students learn best when they get immediate feedback.  It also keeps them engaged in the learning process.  Moreover, the results will show you how effective your own course is—allowing for better course design, iteration and corrections, as needed.  Formative assessments come in many forms, from multiple choice quizzes to demonstrate basic remembering and understanding, to problems that ask students to apply facts to the law or analyze case holdings.  When inserted into your learning management system, you can also provide an answer key and pre-written explanations, so that the students get feedback close in time to taking the assessment.

Maximizing Your Impact

Another question that I am asked a lot by law professors relates to using our time most efficiently.  Online education certainly requires a more steady upfront investment of time.  I think that to maximize our impact as professors, we should think about how to use space and time differently.  By that I mean, we should consider what aspects of our syllabi need to be done in person, and what parts can be performed by students on their own time or in small groups.  I think that as you start to consider this question and become more comfortable with the affordances made possible through online technologies, you will find that there are lots of asynchronous ways to engage students in learning.  For example, rather than leading an entire several-hour class online, consider asking students to work independently or in small groups on problems or projects and then reconvene and debrief.  On Zoom, you can drop in intermittently into break out rooms to check on student progress.  Rather than devoting the entire class period to lecturing, consider adding active learning exercises such as working through problems, role plays, or simply answering their questions.

Working with Technology

Finally, the pain points of many professors center around using new technologies.  That is totally understandable.  Utilizing current technology can be overwhelming, especially for supporting active learning in a completely synchronous context.  The key is to start slowly by learning a few tools at a time.  Try not to overwhelm yourself or your students with lots of new technologies at once.  Use existing resources from your campus, or collaborate with colleagues to share the burden by sharing resources or using existing resources, such as those found on LegalED, Quimbee, BarBri, and CALI.  As you shift your mindset to online learning, remember that it is okay to make mistakes.  Students appreciate that you are learning as you go—just like them.

I really enjoy teaching online and hope you will, too.  If you are experiencing pain points that I missed here, please share them in the comments below.  As always, I’d love your feedback.

 

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Let’s Take this Unprecedented period of Rapid Change to Consider What Can We Learn from the Delay of Fall On-Campus Interviewing: Further Thoughts on Equity and Inclusion

Posted on June 11, 2020 by jennifersbard

 

Jennifer S. Bard, Visiting Professor, University of Florida, Levin College of Law

In Tuesday’s post I suggested that we take the opportunity of dramatic, unexpected, and unwanted change delivered to legal education by the arrival of the Covid-19 virus and the need to rapidly revise decades, if not centuries, of conventions regarding grading and ranking that are tailored to the needs of a majority culture representative of the Harvard Law School Class of 1880 for whom it was created.

I also suggested that these historic grading conventions encouraged the persistent lack of diversity in our profession.

Today, I look at the opportunity that the likely delay of Fall (late summer) On-Campus Recruiting provides to evaluate one of the justifications for these grading practices which is the need to support our students’ ability to compete for the most high paying post-graduate jobs: employment at a “Big Law” firm (usually defined as one of about 200 firms employing more than 200 lawyers).  I take as a starting point the foundational point of this post: we don’t have the information we need to make good decisions about the consequences of the curricular conventions common to almost every U.S. law school.

We do know, however, that despite efforts (at varying levels of success) among law schools  to diversify their student bodies, this has had little effect on the diversification of the legal profession.  There is, moreover,  persistent evidence,  that discrimination plays a role in the interviewing practices of Big Law Firms and impacts the careers of those who are hired.  This could be intensified by the Covid-19 related slowdown of the economy.

What if our current  student grading and ranking practices are both 1) not in the best interests of the education of most of our students and 2) are playing an unwitting role in the lack of diversity in the legal profession by over-emphasizing early success?

The  first hint that a nearly universally adopted grading system based on sorting students for the benefit of Big Law firms may not be in anyone’s best interests is the absolute lack of uniformity in the role that Big Law plays in the employment of law students.  Consider, for a moment,  what we would think of a medical treatment that was administered to all patients but developed to help only 20% of patients or a restaurant that served food that would be appealing to only 20% of its customers–not much probably.  Yet despite serious efforts by many smart and caring people, the basic structure of legal education is exactly that.  81% of the roughly 190 (ties play a role in the count) law schools ranked by the otherwise defunct magazine, U.S. News & World Reports, send less than 20% of their graduates to Big Law firms. Only 9 law schools (all within the top 15) had 70% or more of their graduates employed at graduation with big law firms. Stick with this list of numbers, because it may surprise you.

The next 5 law schools had 60% of its students working in Big Law, 7 had 40%, 7 had 30%,  9 had 20%, 2 had 19 %, 4 had 18%, 6 had 17%, 6 had 16%, 5 had 15%, 2 had 14%, 4 had 13%, 2 had 12%, 11 had 11%. 10  had 10% and the rest-80 more law schools,-had less than 10% of their students employed by a Big Law firm at graduation.  Of that 80, thirty had less than 5% and 14 had zero.  Yet despite the vast differences in the likelihood that any student at any class rank will be hired by a Big Law Firm, almost every one of these schools has some form of grading curve and comparative ranking.

What would happen if most law schools took a step back-and just stopped?  What if they developed a grading system best suited to their educational goals of having the most students reach the highest possible level of legal competency?

The cynical answer is that Big Law would simply by-pass them in favor of the few that continued ranking.  But not so fast.  While there’s no basis to say that Big Law is unhappy with the pool they get from this practice, they certainly are aware that their hiring practices are very inefficient, and are giving increasing thought to how they might do better. Perhaps the pyramidal business model of today’s Big Law firm is an  historic accommodation to their hiring methods,  not a desirable outcome.  Also, current hiring methods are not resulting in the kind of diversity that their clients are asking them to achieve.  Indeed, many law firms, notably Holland & Knight, are working hard to increase diversity.

They also probably know how atypical their reliance on grades is among comparable organizations hiring graduate students. Kellogg Business School Professor and Sociologist Lauren Rivera’s book Pedigree recounts her research based on “embedding” herself in the hiring practices of law firms, banks, and consulting firms.  What she finds is not surprising—all three industries are more interested in the prestige of the graduate school than in the actual ability of any individual student.  But only law firms fail to incorporate any kind of competency based evaluation in the admissions process.   At least in part, this is because prestigious business school have long refused to even release grades to employers.  Thus, employers have had to develop an interview process that involves analyzing case studies, behavior based interviewing, and answering technical questions. We see similar retreats from grade based hiring in medical residency programs.

Would the tests that law firms themselves develop be any more equitable than the ones that, cumulatively, make up a GPA?  Maybe not.  But they could be more targeted toward what students learned in law school, rather than what they brought in with them.

So, given this opportunity for a pause in the hiring cycle and a freeze, for many schools, in the first year ranking process we could partner with our university collogues who conduct research in higher education, such as that on the curricular barriers to the success of underrepresented populations in STEM education, to see if what we are doing achieves the results we want.  And if not, to start the process of working with the legal profession to achieve something we both want: a diverse and equitably recruited cohort of lawyers who provide the highest possible quality of representation for their clients.

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“Take-Aways” from Day 1 of Drexel Conference

Posted on May 26, 2020 by Mary A. Lynch

Over 1,000 legal educators are taking part in a two day conference “Leaning into Uncertainty: Ensuring Quality Legal Education During Coronavirus,”  hosted by Drexel Law School and University.  Brief opening plenary remarks were made by Northwestern Law Professor Daniel Rodriguez who cautioned against “virtue signaling” noting that today on May 26th, we don’t know the choices students, faculty and others will make in August.   He called for legal educators to work across law schools to engage in “Collaboration on Steroids!”

After very brief “framing” discussions of questions, participants were assigned into scores of breakout groups.  Today’s Roundtable topics included:

Roundtable 1: Beyond Zoom! Moving from Emergency Virtual Classrooms to a Rigorous, Engaging Online Experience

Roundtable 2: Designing Curriculum and Programs in a World of Social Distancing: Sections, Schedules and Changing Circumstances

Roundtable 3: Maintaining High Quality Experiential Learning Opportunities from a Distance

Each breakout group recorder took notes which will be compiled into a report.  The hope is to make the lessons from the conference useful this summer as legal educators re-imagine law school operations and adapt our teaching methods and designs to meet student and public health needs.

I was able to participate in Roundtable 1 and 3 and found the discussions useful in thinking about my summer course redesign, the needs of our Justice Center, and the different way different schools can adapt and innovate. I jotted down a few “take-aways:”

General 

  • Time and Space are no longer the same as they were pre-pandemic.
  • To be a good teacher virtually, just like teaching in residence,  you have to be YOU!
  • What parts of your teaching are MOST important to be Synchronous? and how do we move other parts to be asynchronous?
  • Who could we record now (besides ourselves!) that we can use for asynchronous learning this FALL .. For e.g., share a hypo with other faculty in your department, or other subject matter experts from other law schools, or practitioner experts and record their reaction to a hypothetical that you can assign students to review after having discussed the hypo in breakout groups and  reported back.
  • If we are socially distanced with masks, and spread apart in the classroom, and we are teaching both virtually (through the class streaming or recording) and in residence at the same time, what works for that kind of socially distanced teaching? Might Zoom sometimes work better?

Community Building Ideas

  • ESPECIALLY for 1L’s in building community – Use Zoom questions for registering to ask students community building questions regarding hobbies
  • Start now to create break out rooms for 1Ls pre-assigning over the summer with asking of human questions.
  • Opening up Zoom 10 minutes ahead as if you are standing by podium and can be asked questions
  • Reframe the week – conversation starts on chat or CANVAS before class and continue  into and after class. 
  • Offer off class opportunities for virtual tea, coffee, happy hours to discuss what’s happening with students generally or what’s happening in the world

Experiential

  • Take Advantage of this moment.  Clinics and experiential courses could serve as important front line workers for the unprecedented need for legal services.
  • How do we overcome barriers to actually get to the people in need and to get them what they need?
  • How do we teach students to be community and client-centered if we are not in the community but physically or socially distanced?
  • How do we prepare students and ourselves to perform competently in the world of virtual courts and lawyering when the rules, protocols and comfort level with the virtual differ across kind of state and federal courts and among different judges?
  • How do we build the people-centered core of clinical work that helps students develop skills, values and networks in interpersonal relationships?
  • How do we resource our students and clients for virtual legal practice?

Lots to chew on and looking forward to hearing more tomorrow!

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New York State Bar Association Leads with Bar Exam Questions

Posted on April 10, 2020 by Patricia Salkin

Patricia E. Salkin*

On April 4, 2020 the New York State Bar Association once again delivered a resounding thumbs down to the Uniform Bar Exam (UBE) as a measure of competency to practice law in New York.  Five years earlier, the Association’s Committee on Legal Education and Admission to the Bar delivered a report that was overwhelmingly approved by the House expressing the sense of the profession that a move to the UBE was a bad idea. 

The NYSBA Committee on Legal Education and Admission to Bar (CLEAB), which had long studied the bar exam, hosted a session during the annual meeting on January 16, 2019 titled, “A Question of New York Law: Should It Be Taught in Law Schools and Tested on the Bar Exam?”  A preview to that discussion, “The Role of State Law in Legal Education and Attorney Licensing,” was published in the New York Law Journal the week prior.  In April 2019, the NYSBA Task Force on the Bar Exam was appointed by President Michael Miller, “to investigate and report on the experience and impact of New York’s adoption of the UBE.”  Then president-elect Hank Greenberg stated, “New York law has long been the gold standard in American jurisprudence. The bar exam should play an important role in ensuring that newly admitted lawyers appreciate the importance of New York law, and have an appropriate grounding in it.”

On March 5, 2020, following a series of statewide hearings on the bar exam, the Task Force, chaired by the Honorable Alan Scheinkman, Presiding Justice of the Appellate Division, Second Department, released its report and recommendations.  The report contains an accurate and detailed description of meetings, stakeholders and the decision-making process that ultimately led the New York Court of Appeals, under the leadership of former Chief Judge Jonathan Lippman, to abandon the New York Bar Exam (NYBE) in favor of the UBE; and the report starkly concludes that “…since the adoption of the UBE, the fundamental purpose of the bar examination has been lost.” (emphasis added)

Accompanied by analysis of findings and explanations to support their positions, the Task Force made the following recommendations to chart a path forward for the licensing of new attorneys in New York:

  • Eliminate the New York Law Exam and replace it with a rigorous exam on New York law as a prerequisite to admission to the New York bar.
  • Conduct an independent psychometric analysis of the grading and scaling of the UBE.
  • Allow those who do not wish to practice law in New York to take only the UBE and allowing those who only wish to practice in New York to take only the Multi-State Bar Examination section of the UBE and the rigorous New York test.
  • Consider a New York law Certification program that would allow people to forego the bar exam entirely. Under this program, ABA-accredited law schools inside and outside of New York would offer courses that include New York law-based content.
  • Consider an experiential learning pilot program, which would allow second and third-year law students to spend time counseling clients, working with practicing attorneys and learning other practical skills so that a portfolio of work is created and assessed every semester.

These recommendations are welcome, especially the last two items which get to the heart of what many thoughtful national experts have maintained are the more accurate measures of competency to practice law. While under normal circumstances, degree privilege plus programs that incentivize curricular choices (in this case more New York law) and require client-focused legal skills experiences are the better measures of basic competencies, the strange confluence of the timing of this report and the COVID-19 pandemic has created a fortuitous opportunity to test some of the recommendations in the report.

The fact that this Task Force was in existence and already working on bar exam issues led NYSBA President Hank Greenberg to ask the group to separately opine on the challenges surrounding the then-scheduled July 2020 uniform bar exam in New York. Greenberg has been a staunch advocate for the soon-to-be members of our profession noting, “Graduating law school students are experiencing high levels of anxiety and distress as their lives and potential livelihoods have been significantly disrupted, and we are focused on making sure that their concerns are being heard and responded to by policymakers.”  The Task Force recommended postponing the July 2020 bar exam until early September and if the exam is still impossible at that time, then to expand practice orders to enable new graduates to begin supervised practice while waiting for a bar exam to be administered. 

While the Court of Appeals under the leadership of Chief Judge Janet DiFiore has accepted the State Bar recommendations, much more needs to be done to clarify the status of the developing procedures for licensing lawyers from the Class of 2020.  Another blog dedicated to pragmatic discourse on how to best license new lawyers who are getting ready to take their first bar exam during the COVID-19 pandemic is documenting the thoughtful and reasoned ways in which many state licensing jurisdictions are rethinking the value of the traditional bar exam limited to the unique challenges presented during the COVID crisis.  Law deans and faculty, law students and members of the profession, importantly including the leadership of the State Bar, are engaged in thoughtful dialogue on this topic with the Court of Appeals to arrive at a fair and just resolution for the Class of 2020. 

Some may think it unfortunate for the NYSBA Bar Exam Task Force to have issued its critique of the UBE at the same time that we are experiencing an unprecedented disruptor in the practice of law and in the administration of justice. However, this is precisely the time that New York can lead the country with piloting alternative ways to license lawyers with a reasoned roadmap prepared not under the pressure of the pandemic, but rather after a year-long focused study that supports the concept that there are different and equally effective, if not better, ways to assess candidate competency for admission to the bar in New York.

*Patricia Salkin is Provost of the Graduate and Professional Divisions of Touro College. She is a legal educator and a past co-chair of the NYSBA Committee on Legal Education and Admission to the Bar.     

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