ABA FUTURE LEGAL ED TASKFORCE “WORKING PAPER” AVAILABLE: “a field manual for people of good faith.”

Posted on August 2, 2013 by Mary A. Lynch

The ABA Taskforce on the Future of Legal Education today posted a thirty-four page “WORKING PAPER” in preparation for its next public hearing and meeting on August 10th in San Francisco see schedule. (Note: all  blue font below is my “emphasis added” in this blog post and not found in the original document).   After briefly summarizing challenges and obstacles, the Working Paper states,

The Task Force has resolved these challenges by structuring the Working Paper as a field manual for people of good faith who wish to improve legal education as a public and private good.

Early on, the  drafters alert the reader to  Section VII (“Themes Addressed to All Parties”) and call that section “the heart of the field manual.” In the Overview,  the drafters identify the following “Key themes:”

  1. “need for a systematic (rather than tactical) approach to the deficiencies of law school financing and pricing;”
  2. “greater heterogeneity in law schools and in programs of legal education;”
  3. “an increased focus on the delivery of value by law schools;”
  4. “a focus on the development of competences (sic) in graduates of legal education programs;”
  5. “the profound importance of cultural change, particularly on the part of law faculty;”
  6. “the need for changes in the regulation of legal services to support key changes in legal education;” and
  7. “the need for institutionalization of the process of assessment and improvement in legal education.”

In Section II,  the Taskforce identifies and addresses a tension in legal education (which IMHO is too often overlooked — at great risk to  American law and society). The drafters refer to it as “The Fundamental Tension.”  On the one hand, there is societal interest in the training of lawyers as a “public good” and the “centrality of lawyers in the effective  functioning of ordered society.” Requiring ethical training or encouraging faculty scholarship may be an important  “public benefit.” On the other hand, American legal education is also a “private good,” providing trained lawyers “with skills, knowledge and credentials which will enable them to earn a livelihood.” This private good aspect subjects legal education to consumer preferences and market forces. The Taskforce wisely  acknowledges that any “credible” set of recommendations will have to “carefully calibrate” the public and private concerns.

In Sections III to VI, the Report outlines guiding principles, intelligently discusses the forces and factors prompting need for action and aptly details what actions or initiatives can be realistically undertaken to effect change. The Taskforce comments that it  structured its proposed plan to:

(a) encourage and facilitate appropriate action by each actor in the legal education system; and

(b) to the extent possible coordinate those actions to achieve large-scale improvement.

In Section VII, the Working Paper lays out and develops key  themes mentioned above. In the eighth (VIII) and final section of the Working Paper, the drafters set out seven sets of specific recommendations addressed to particular “groups or actors in the system of legal education.” Some of those recommendations call for modification or elimination of current ABA standards which according to the drafters “Directly or Indirectly Raise the Cost of Delivering a J.D. Education Without Contributing Commensurately to the Goal of Ensuring that Law Schools Deliver a Quality Education.” Those include standards pertaining to tenure and security of position, faculty-student ratios, distance learning and adjunct faculty. Others call for revising, eliminating or adding standards to encourage innovation, including for programs of legal education that result in less than a J.D.  but which serves public needs for legal services:

Incentives, resources, and encouragement can be powerful supports for innovation, and these can come from many participants in the system (as well as participants outside the legal education system). The ABA Section of Legal Education can support innovation by modifying or eliminating Standards (including those governing variances) that constrain opportunities for experimentation and risk-taking. As noted above, experiments or successful risk-taking by one participant can influenceothers to go down a similar path. In addition, there exists a wealth of knowledge schools can draw, from organization theory and elsewhere,to facilitate their acting in ways that might lead to innovation.

In order to alert readers to the availability of the report as promptly as possible, I have posted immediately and have had only the briefest of opportunities to digest the Working Paper in its entirety.  So without addressing any specific recommendations, here are my thoughts as to what the Taskforce and Working Paper got right:

  • The Taskforce correctly focuses on the “Fundamental Tension” between public good and private livelihood demands.
  • The Taskforce highlights appropriately  the critical importance of providing real “value” to student-consumers (and the unfair consequences currently for need-based law students without the highest of LSAT scores).
  • The Taskforce underscores effectively the need for permanent institutionalization of ongoing assessment and improvement mechanisms for legal education.
  • The Working Paper accurately identifies  the need for correction and balance in faculty culture.
  • The Working Paper also accurately identifies the need for adjustment in curricular focus on student competencies and skills.
  • The Working Paper aptly emphasizes the need for innovation, experimentation and flexibility at this moment in legal education.

Although this “Working Paper” is a good start, the Taskforce still has more issues to include in its deliberations. I think these issues include:

  • How to continue to protect academic freedom as part of  law schools’ role in aiding the “public good.” The need to properly protect academic freedom is not a mere “hypothetical” issue as those professors and clinics who have experienced the backlash will tell you. (See also my discussion about it in an article on outcomes in the William Mitchell Law Review.)
  • How to reconnect law schools’ “public good” mission with governmental funding priorities; specifically, to revive or replace DOE funding for client-centered education, the elimination of which (20 years ago) has contributed to the current maldistribution of legal services and gaps in access to justice.
  • How to manage the risks that accompany deregulation, i.e. the potential for pragmatic market-oriented reforms to establish a de facto two-tiered system, which could exacerbate current inequities in quality of legal services and opportunities for advancement in the profession.

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How Much Experiential Legal Education is Enough?

Posted on July 30, 2013 by Antoinette Sedillo Lopez

I remember when I first started teaching, many schools had limits on how many law school credits students could earn through clinics, externships and simulation courses.  I am not sure exactly why.  I think the idea was that these courses were “soft” and did not require the intellectual rigor that classroom courses required.   There might have been a concern about grading in those courses as well.  It was thought that the grading might be inflated since they were usually not subject to the imposition of a grading curve.

My, how times have changed.

Now that employers want students who are prepared for the practice and students want education that prepares them for the practice, the question is now, how much experiential education is enough to prepare them?  Karen Tokarz, Peggy Maisel and Bob Siebel and I recently completed an article suggesting that  about one third of the curriculum would be ideal.  We suggest the courses should be spread throughout the three years (we include legal research and writing as a “skills” course.)  We believe that this amount would capitalize on the legal knowledge and analytical skills they develop in the  traditional  law school classroom and would help students better understand the values and develop the skills they need to become successful lawyers.   Simulation courses  such as trial practice, moot courts, negotiation and counseling, alternative dispute resolution, etc would help students develop and perfect the technical skills and well designed hybrid courses, externships and clinics would help students integrate the skills, knowledge and values that will enable them to develop as competent and ethical lawyers.   This would remedy the fact that students are often bored by the third year of law school and it would focus law school education on helping students prepare themselves to do pursue the careers they seek.  We suggest that law schools should develop learning objectives for their programs and work on assessing the effectiveness of the overall program, including classroom, simulation courses and hybrid, clinics and externships.

In the article we point to  schools that have been moving in that direction.  We highlight the seventeen (17) law schools that require clinical course work and we also describe the growing movement of schools that guarantee a clinical course for every student who desires one.   Now, we need to engage one of the most important principles of Best Practices for Legal Education, we need to assess the effectiveness of our programs.  That will tell us how much experiential education we need.

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Four Proposals on Faculty Forwarded to Council on Legal Education

Posted on July 21, 2013 by Mary A. Lynch

As readers of this blog remember, the July ABA Standards Review Committee (SRC) meeting was slated to be an important one. SRC actions taken with respect to the curriculum and program of legal education were discussed by Professor Michele Pistone last week here. In this post, I want to alert readers to the SRCs decisions regarding faculty competence, tenure and security of position, governance rights, and compensation and perquisites. I have read Karen Sloan’s National Law Journal article discussing the July meeting here. In addition, I reviewed the very helpful and thorough CLEA and SALT reports on the meeting submitted by Professors Claudia Angelos and Carol Chomsky here.

HOW FINAL ARE ANY RECOMMENDATIONS FROM SRC?

The CLEA/SALT report does a good job of explaining the process.

The Council of the ABA Section of Legal Education and Admissions to the Bar is the accrediting agency for JD programs in U.S. law schools. The Council’s Accreditation Standards, contained in the“ABA Standards and Rules of Procedure for Approval of Law Schools,” are subject to a comprehensive review every five years. The Council has delegated to the Standards Review Committee, an appointed committee comprised of legal educators and others, the task of recommending changes to the standards. After receiving a report and recommendation from the SRC, the Council asks for comment from interested constituencies on the proposed changes and then acts on the SRC’s recommendations…

The SRC’s proposals most notably include final recommendations on student learning outcomes and on faculty tenure, governance, and academic freedom (emphasis added). The Council will receive and discuss these recommendations at its next meeting, in San Francisco on August 9, 2013. After the Council considers and possibly amends these recommendations, they will be sent out for notice and comment by the public.

WHAT DID SRC DO AT THE JULY MEETING?

1.  Proposed eliminating the minimum faculty-student ratio requirement. As Karen Sloan in the National Law Journal points out,

The ABA committee reviewing the organization’s accreditation standards has voted to do away with the rule establishing a minimum student-to-faculty ratio. The panel reasoned that determining the true size of a law school faculty is just too complicated, given the number of adjuncts and non-fulltime teachers.

Law schools would still have to have enough faculty members to carry out their mission and comply with all the other accreditation standards, said Barry Currier, the ABA’s managing director for accreditation and legal education. But schools no longer would need to annually ensure they have at least one fulltime faculty equivalent for every 30 students.

Read more here.

2. The SRC also sent four proposals (A-D) regarding faculty security, academic freedom and governance up to the Council on Legal Education. The CLEA/SALT report states

All four alternatives contain provisions requiring law schools to adopt and adhere to policies that provide that all full-time faculty have academic freedom and “meaningful participation” in law school governance over mission and curriculum. They all require (in varying language) that schools have a comprehensive system for considering and making decisions regarding promotion, tenure, renewal of contracts or other forms of security of position, and termination. While there are some bedeviling details, the primary differences among the four alternatives relate to tenure and security of position for faculty.

MARY’S ANALYSIS:

The recommendations on Faculty must be read in conjunction with other recommendations in Chapter 4 and in other Chapters and can only be fairly viewed as part of an integrated whole. Moreover, the Council must use common sense and their experience of human behavior in deciding appropriate rules.

For example, Alternative D proposes no security of position (including tenure) for any faculty member. The only requirement is that a school demonstrate it can “attract and retain a competent faculty.” This proposal assumes one can ensure academic freedom (required elsewhere in the rules) without tying it to security of position. Now, in the abstract that may appear like a workable plan. But seriously, outside of academics, pundits and those who are so independently wealthy that security of employment matters little, where has anyone witnessed regularly an employee freely declaring, writing, and advocating on controversial or unpopular subjects and the advocacy having no bearing on one’s ability to keep one’s job, support one’s family and pay one’s bills?

In another example, the SRC proposals under Chapter 3 Program of Legal Education require law schools to focus more intently on student learning outcomes, experience-based opportunities, academic support for students, and preparing students for practice. This push was demanded by consumers, the economy, and the profession, and the proposed revised standards appropriately respond to those demands. However, that kind of teaching requires small class sizes, close supervision and multiple feedback opportunities. Yet,the SRC proposal eliminates minimum faculty-student ratio requirements. In addition, the student-learning focused activities encouraged by the standards will, in the real lives of faculty and students, compete with the ability to spend considerable time working on intense writing projects and pathbreaking scholarship. Thus, one would think that both activities should be, at the very least, equally encouraged and certainly there should be no DISINCENTIVE to focus on teaching rather than primarily focusing on scholarship. Yet, in all but one of the faculty proposals sent to the Council the standards allow for discrimination in security, compensation, and/or governance against many of the very faculty members who will be working most closely on student learning needs and innovative teaching.

If you care about legal education, about preserving academic freedom while updating law school teaching to meet the challenges of a global digitalized economy, be vigilant. As noted above, the Council considers these recommendations at its San Francisco meeting on August 9, 2013 and will soon send them out for public notice and comment.

Filed under: Best Practices, Outcomes & Assessment Techniques, Catalysts For Change, Uncategorized | Tagged: , , | 2 Comments »

ABA Standards Review Committee votes for 6 credits of experiential learning

Posted on July 17, 2013 by Michele Pistone

Karen Sloan at the National Law Journal reports that the ABA Standards Review Committee made some decisions during its recent meeting.  In addition to eliminating the faculty-student ratio, here are some other highlights from her article:

• The committee voted to require law students to complete at least six credit hours of experiential coursework—clinics, externships or simulation courses. That would be up from the existing one credit-hour requirement, but less than the 15 hours suggested by the Clinical Legal Education Association or the 15 hours being pursued by the State Bar of California.

• It adopted a new student-learning outcomes requirement. Law schools would have to establish a list of competencies that students must achieve and assess whether they are meeting those goals. This measure is intended to make schools look beyond bar-pass rates to determine whether they are meeting student needs. However, the recommended standard leaves law schools plenty of leeway in determining what the learning outcomes should be and how to assess them.

• The committee voted to increase the number of credits law students may receive from distance learning classes from 12 to 15 and eliminated the rule that students may take no more than four distance-learning credits per semester. Students could take a full semester of courses away from their home campus.

Read more: here.

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NYT – The Unseen Costs of Cutting Law School Faculty

Posted on July 10, 2013 by Michele Pistone

Take a look at this NYT’s article by University of San Diego Professor, Vic Fleischer, noting that “The law school at Seton Hall University has put its untenured faculty on legal notice that their contracts may not be renewed for the 2014-15 academic year.”  While disagreeing with the Seton Hall decision, Fleischer offers some suggestions of his own on how law schools could cut costs, “Post-tenure review (by faculty, not administrators) can ensure that faculty members remain productive. Libraries can be moved online. Clinics can be closed, and adjunct faculty can be better utilized to team-teach practical courses alongside research faculty. The size of the administrative staff can be pared down, especially those who manage programs that might be considered luxuries.”  

At a time when law schools are being criticized for paying insufficient attention to training in practical lawyering skills and professional values (not to mention, the advent of scalable online teaching technologies), I do not see how closing clinics is the answer.  I would prefer for the discussion to recognize that if we eliminate clinics altogether, then what remains to be taught in law schools could easily move online.  In an article I will be sending out next week, I go into this in a lot more depth. 

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CALI conference June 13-15 in Chicago

Posted on June 10, 2013 by Michele Pistone

If you’ll be in the Chicago area this week, consider attending the CALI conference.  Info is available here.   This year’s conference is about Driving Innovation and will feature talks by Bill Henderson, Barbara Glesner-Fines, Conrad Johnson and many other innovators in legal education.  The conference will also include a number of session on one of my favorite law school innovations, flipped learning.  Need a primer on flipped learning, watch my video, available on the LegalED site and here.

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Teaching the Skill of Listening in Law Schools

Posted on May 22, 2013 by Michele Pistone

The wonderful research by Marj Shultz and Shelton Zedeck tells is that listening is one of the fundamental lawyering skills that all lawyers, especially recent graduates, need to have in their toolkit upon graduation.  So for the last few years, I have been trying to find ways to incorporate lessons on the skill of listening into my teaching.  I just saw a TED talk on listening. http://www.ted.com/talks/julian_treasure_5_ways_to_listen_better.html  In it, Julian Treasure recognizes the role of listening in stemming injustice and also gives some ideas that could inspire innovation in how we can teach the skill of listening.  What do you think?  Any ideas on how the exercises can be adapted for legal education?

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Democratization of higher education

Posted on May 3, 2013 by Michele Pistone

In March 2012 I delivered a talk at TEDxVillanovaU about The Future of Higher Education, in which I spoke about how online learning can bring about a democratization of higher education.  Renee Knake of Michigan State has taken the idea further and applies it to legal education in her forthcoming article, Democratizing Legal Education.  Elizabeth Chambliss talks about the article, here.  

What do you think?  It is possible to democratize information about law and legal systems?  What are the barriers?  Who will be the gatekeepers?  What groups would want to see it happen and would they be willing to fund it?

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