CLINICAL COSTS: SEPARATING FACT FROM OPINION

by Robert Kuehn,  Washington University School of Law

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

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

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

Competencies-Based Legal Education

[This was originally posted by the Clayton Christensen Institute on Disruptive Innovation]

 Last week, I discussed why law schools need to respond to the changing marketplace for legal services and legal education.  In thinking about how best to prepare for that changing world, law schools need to consider how competency-based educational models can be employed to advance educational objectives for students seeking to enter the market for legal services.  As Michael Horn and I explain in our new whitepaper, Disrupting Law School, regulatory protections that have sheltered law schools from competition will continue to subside.  In this new environment, law schools need to reimagine themselves as educators for students interested in learning about the legal services sector, not simply those seeking a JD.

One way to do this is to think about legal education from a blank slate.  Rather that try to retrofit our current pedagogy to address 21st century needs, instead we need to think about it from its inception — if one were to start a school today to educate those who want a career in the legal services field, what would that school look like?

Upstart competency-based education programs have done just that in other parts of higher education.  They provide at least three new considerations for traditional law school as they begin to think about and prepare for the future.

1. Time is no longer the measure of accomplishment

Online competency-based learning reverses the traditional relationship in education between time and student learning. In the traditional educational model, time is fixed while each student’s learning is variable. With online competency-based learning, the relationship between time and learning is reversed — time becomes the variable and each student’s learning becomes essentially fixed. Students process at their own pace, moving from topic to topic upon mastery of each. Those who need more time to master a concept before moving on to the next take the time they need, while others move ahead to the next set of material and learning objectives.

2. Centrality of competencies, learning outcomes, and assessments

Online competency-based programs shift the teaching pedagogy toward student-centered learning. In an online, competency-based program, faculty and instructional designers start by identifying the competencies students must master to achieve the desired learning outcomes and then work through each to understand how a student would demonstrate mastery of those objectives. Through constant feedback, students know how they are doing and what they need to do next and teachers can determine when students have mastered competencies and are ready to move forward. The assessments in other words are both forward looking—assessments that help determine what a student studies nextand backward looking —assessments that indicate whether a student has mastered the material.

3.  Modularization of course material provides more flexibility and different business models

Online competency-based learning is also changing key elements of the traditional higher education business model. Online technologies make it possible to modularize the learning process—that is, to break usual semester-long courses into shorter learning units or modules, which can be studied in sequence or separately. When material is packaged in online modules, it is easier to use for multiple educational purposes and multiple audiences in different combinations.

Stackable modules allow students to create individualized curricula based on their own learning goals and objectives. For students who attend law school knowing the area of law in which they want to practice—a segment of the student body currently underserved due to limited course offerings in any one topic at any one law school—modules open up opportunities to stack credentials from multiple sources. The long tail of the Internet opens up these opportunities; there may be sufficient student demand if online courses can aggregate demand and serve students from around the country or even the world.

Modules also eliminate duplication and optimize teaching resources. This flexible architecture can create an entirely new business model for law-related education. When learning is broken down into competencies—rather than semester-long courses—modules of learning can be packaged into different scalable programs for very different audiences—for example, paralegals, legal technicians, law students, lawyers (CLE), judges, administrative agencies, non-JDs working in law-related fields, foreign students, high school/college moot court teams, undergraduate students, journalists, clients, life-long learners, and so forth.  The possibilities abound.

This exercise can take us in a lot of different directions.  Every direction, though, will ask us to change and move beyond the status quo.  While change is hard, it is also necessary.  I hope our whitepaper provides sufficient impetus to get started.

Disrupting Law School

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In a new whitepaper, Disrupting Law School, Michael B. Horn and I explore various aspects of disruption in the legal services sector with an eye toward how law schools can respond proactively. As we state in the whitepaper, it is clear to us that law schools need to change. But many in the academy believe that we are insulated from disruption because of regulatory protections. In our view, reliance on this regulatory scheme for protection is misguided.

Heavily regulated industries can be disrupted. The taxi industry provides an example. Uber’s novel business model, which intentionally by-passed regulators, has been embraced by customers, investors, and drivers. As we have seen in other industries, once innovations like this accumulate sufficient market support, the regulations will ultimately be loosened to accommodate them.

It is no surprise, then, to see changes in the regulations affecting both lawyers and law schools. Horn and I identify at least three ways that regulations are opening up.

First, advances in technology are altering the traditional legal services value network. For decades lawyers have provided expensive customized solutions for each individual client. Now, the industry is seeing technological innovations bring more standardized, systematized, and, in some instances, commoditized offerings to the market. The rise of LegalZoom is an example of this kind of disruption. LegalZoomhasbeen challenged on regulatory grounds; the claims were that it was engaged in the unauthorized practice of law. LegalZoom won or settled the court challenges. Those successes have motivated it to expand upmarket, as is typical of disruptors.

Second, technological developments are breaking down the traditional rationale—the protection of the public—for granting lawyers a monopoly on the practice of law. State regulators of bar licensure are taking note. States are beginning to experiment with providing non-JDs limited licenses to provide legal services that until now only JDs could provide.

The State of Washington provides the first example.  It recently licensed legal technicians—non-JDs who are specially trained to advise clients in a limited practice area, in this case family law. Akin to a nurse practitioner, a limited license legal technician (LLLT) can perform many of the functions that JDs traditionally performed, including consulting and advising, completing and filing necessary legal documentation, and helping clients understand and navigate a complicated family law court system. Only two years old, this new model is already gaining traction outside of Washington; the bars in California, Colorado, Massachusetts, New York, Oregon, and Utah, are each considering similar limited licensing options to authorize non-lawyer practitioners to practice in limited capacities in their states.

Finally, on top of the changes coming about through technological innovations and new licensing models, higher education itself is also seeing a variety of potential disruptors emerge, all powered at least in part through online learning. The startups can transform higher education by offering programs that are more flexible, more convenient and, often, more affordable than programs offered in the traditional higher education model. And because they are able to take advantage of a variety of new technologies, business models and teaching pedagogies, these players are positioning themselves to change the status quo in higher education. Here again, law schools may feel protected from the disruption that is coming toward the universities in which we sit because of strict ABA accreditation standards that limit online competition. But here, too, we warn against becoming too complacent when relying on existing regulatory protections.

The ABA recently granted a variance to Mitchell Hamline Law School to offer a blended online, in-person JD program. This acceptance of online learning within the JD, coupled with the ABA’s push for the adoption of learning outcomes and formative assessment, suggest that efforts to innovate using online technologies will find support by accreditors. And students may find online programs attractive as well. Judging from its first class, there is pent-up demand for such an offering; the students who enrolled in Mitchell Hamline’s blended program had higher predictors of success (LSAT and undergraduate GPA) than the class of students enrolled in the live JD program. The program’s former dean, Eric Janus, told me that students in the blended program even expressed gratitude to the school for offering them an opportunity to learn the law. That’s because before this offering became available, the alternative was nothing at all.

Ultimately, we in the legal academy must acknowledge that we are exposed to the same form of competition that has lead to the devastation of entire industries. And then act proactively to create an improved educational environment for the legal services industry.

Law School Curriculum Review & Reform: Lessons Learned

In 2012, my dean asked me to chair a review our curriculum at the University of Tennessee College of Law. He asked our committee to consider the current three-year curriculum in light of our learning outcomes. It sounded like an overwhelming job.

During the first year of our curriculum review, I remember reading the book Reforming Legal Education: Law Schools at the Crossroads. Michael Hunter Schwartz and Jeremiah Ho wrote a great chapter titled Curriculum Reforms at Washburn University School of Law.

I would describe Schwartz and Ho’s chapter in two ways: (1) full of practical suggestions about the process for reviewing curriculum and considering reform; and (2) terrifying.

I stole many of the practical, process-related suggestions from their chapter. We had a committee retreat where we spent an uninterrupted day discussing the curriculum. Committee members went door-to-door and talked to each faculty member about the curriculum and possible changes. The committee developed two proposals for curriculum reform and discussed these proposals with the full faculty. I am sure there are other ideas we borrowed from Schwartz and Ho.

The terrifying part of Schwartz and Ho’s chapter was this line: “[O]ne might conclude that, after nearly three years of work, Washburn’s curriculum reform efforts have been unsuccessful.”

Three years? We may do this for three years and feel it wasn’t a success?

Of course, Schwartz and Ho go on to explain that there were successes in the three-year process. (The Washburn faculty reached a consensus on key issues and made progress toward some important goals detailed in the chapter). But it was daunting for me to think that the process would be difficult and might take three years.

In 2015, the University of Tennessee College of Law faculty adopted a package of significant changes to the 1L curriculum. While the substance of those changes is important, I think it is also important to contribute to Schwartz and Ho’s discussion about the process. So here are a few of the lessons I learned about the process of curriculum review and reform over the past three years.

1) Three Years is a Good Start. When we started, three years sounded like a long time to work on a curriculum review. I now know that three years of curriculum review passes in the blink of an eye. We needed that much time to understand our curriculum, talk to faculty, alumni and students, research what was happening elsewhere, create proposals for change, seek more input, and generate new proposals.

2) Less is More. Our committee accomplished something in three years because we narrowed the focus. Even though our original committee charge was to review the entire curriculum, we ended up focusing on the first year curriculum. That was a more manageable project. Also related to “less is more,” after two years we realized the committee was spread too thin. Our dean originally gave the curriculum review charge to the Academic Standards & Curriculum Committee. For two years that committee juggled the curriculum review and the regular business of Academic Standards. In the third year, our dean created a separate task force to focus solely on the curriculum review. That change made us much more efficient in year three and allowed us to reach a faculty vote on a package of proposals.

3) Seek Input from Faculty, Alumni, and Students Multiple Times, in Multiple Settings. Throughout the three years of our curriculum review, we talked to faculty, alumni, and students. When we met with alumni and students, we gave them the chance to address the room, answer questions anonymously (with clickers), and respond in writing to questions. We often continued these discussions on the phone, by email, and in person. We were able to compile all of this input and share it with the faculty. The committee spent even more time gathering ideas from the faculty in one-on-one meetings, in multiple forums, in small group sessions, and in many informal conversations over the course of three years. Seeking input in all of these settings helped us learn from all of our stakeholders and resulted in a variety of suggestions.

4) Compromise Can Lead to Something Better. Near the end of our second year of the curriculum review, the committee presented the faculty with two packages of possible reforms to the 1L curriculum. Discussing and debating the merits of these proposals helped the committee see potential problems we had missed and opportunities for meaningful change. With that information, we met with small groups of faculty to generate ideas about new classes and other innovations. In these meetings, members of the faculty often suggested they wanted to take the lead in making a change or teaching something new. As the third year came to a close, the faculty approved a package of 1L curriculum changes that was substantially better than what the committee had suggested at the end of year two.

5) Curriculum Review “Success.” Three years ago, it was unnerving to read that Schwartz and Ho thought we might not find curriculum reform “success” in three years. But I now know that is a good thing. Curriculum review and reform does not have to be perfect, because we are never done. Curriculum review should be an ongoing process. This allows us to identify what is working and determine what we will do next as we prepare students for practice.

A 21st Century “generalist legal education”? Skills & professional identity focused.

More musings on generalist v. specialist education, and how much doctrine law schools need to teach.

A conversation with one of our University of Washington alums — Leo Flor, Westpoint grad, Gates Public Service Law Scholar, Equal Justice Works Fellow at Northwest Justice Project, and spark plug for the new resource Representing Washington Veterans  — has me chewing on whether we need a new understanding of what a “generalist legal education” means.

Leo noted that the JD is often viewed as a relevant generalist credential, even though most law school grads move into traditional bar-passage-required “law practice” jobs.  And he observed that many job postings for alternative positions list an MBA or MPA as a relevant qualification, but not the JD.

The traditional generalist education of my era, and to a significant extent still, was intended to teach a set of analytical skills and and expose students to a broad range of legal doctrine potentially relevant to a general practitioner and to passing the bar exam. Though passing the bar remains important and is a significant factor in designing the educational program for lower tier schools, few 21st century lawyers are truly general practitioners.

Perhaps the generalist foundation needed in this era is built on skills, more than doctrinal knowledge.  And for Leo’s purpose not only skills in a technician sense.  Skills also in a “professional identity” sense.  Self-awareness & understanding of ones’ own gifts.  Leadership and interpersonal skills. Such an understanding of generalist could make the JD an appropriate credential for the types of job Leo described.

In a previous post, I suggested that that, at least for those students who come to law school with significant self-knowledge and experience, a substantively specialized curriculum could make sense, if combined with the general analytical and research skills to learn new areas.  This is not a new  idea.  Back in 2002 then-law-student Kevin E. Houchen self-published a detailed review of the trend toward certificate programs and concentrations, arguing that for a subset of students such specialization makes sense.

A decade later in 2012 the New York Times touted  NYU’s  limited moves toward greater specialization not just once, but again in an article  promoting specialization for law schools focused on Biglaw.

And in early May of this year 2015 at the National Summit on Innovation in Legal Services sponsored by the ABA and Stanford Law School, speakers reiterated these themes.   Richard Susskind (13:08) argued that legal education needs to train graduates for 21sth century jobs like legal project managers, legal process analysts, legal knowledge engineers, and legal risk management.  Prof. Deborah Rhode(13.29) observed that it “makes no sense to train Wall Street M &A lawyers the same way we train someone who’s going to be doing routine real estate and divorce work in a small town.”

It is not so very difficult to understand what acting on Prof. Rhode’s observation might mean.  As a practical matter, some curricular differentiation based on where graduates will practice already takes place, linked primarily to  different levels in the law school hierarchy.  Beyond that, many schools offer an extensive enough curriculum – both in doctrine and skills — to permit considerable specialization aimed at traditional law practice niches, even beyond formal concentration tracks and certificate programs.

For more specialized training law schools that offer extensive LL.M. programs routinely allow students to complete an accelerated JD/LL.M in three calendar years.  In the tax field, where the LL.M. has long been de rigueur, many schools provide such opportunities, including NYU, the long-time leader in tax LL.M’s.  And increasingly, schools educate students not just in substantive tax specialties, but also — using my own school, the University of Washington as an example — with  tax-focused skills and clinical training for both JD. and LL.M. students.

My hunch is that increasing numbers of students already opt to specialize, sometimes with a substantive law focus, often combined with a skills focus, e.g.  corporate deals with drafting or criminal & tort law with trial advocacy.

Richard Susskind’s challenge is a bigger stretch for legal education, though, again, some initiatives are visible, such as Michigan State‘s Reinvent Law Laboratory.

A key challenge for law schools is to learn how to identify prospective students or develop admitted ones who understand their life goals and values, and their intellectual and personal gifts well enough to make intelligent decisions around specialization.  To meet that  challenge, a holistic approach to education is needed –whether understood in the MacCrate framework of knowledge,  skills and values, or the Carnegie framework of cognitive, professional skills and ethical professional identity apprenticeships.

Birth, Maturity, Creative Destruction & Renewal At AALS Clinical Conference

As someone who collaborated on a concurrent session titled “Facing Our Fears in Changing Times” at the AALS Conference on Clinical Legal Education, it’s probably not surprising that I was especially drawn to sessions that brought in models or speakers from other disciplines to provide insight on how to operate effectively in the midst of the current period of change in legal education.

In addition to my last post on Michele Weise’s Closing Plenary, in this and my next two posts, I’ll discuss three other provocative sessions that addressed different aspects of this theme.

On Tuesday morning my University of Washington colleagues Jennifer Fan and Lisa Kelly, worked with Rutgers-Newark’s Randi Mandelbaum and Syracuse’s Mary Helen McNeal to introduce the “liberating structures eco-systems model” of leadership.  That model views organizational change as an  infinity loop in which organizations move through four cycles that call for different styles of leadership:

Stage                                                   Leadership Style

Birth                                                     Entrepreneur

Maturity                                                Manager

Creative Destruction                           Heretic

Renewal                                               Networker

The model suggests that embedded in the cycle are two “traps“:

1. Between the Maturity and Creative Destruction stages lies the Rigidity Trap of “not letting go” of what the organization has birthed and brought to maturity.  Staying stuck in the past and wedded to the old ways of doing things.

2. Between Creative Destruction and Renewal lies the Poverty Trap of “not investing enough to accomplish renewal”.

Sound familiar? The session included an exercise where attendees decided which stage  they perceived their individual clinic, program, institution, or the clinical legal education movement to be in.  Participants  then added on the infinity loop diagram post-its with their results.  Although responses were spread around the loop, most clustered  among Maturity — Creative Destruction — and Renewal.  Most responses addressed clinical programs and law schools.

I find this framework a helpful reminder that our current struggles are “normal” and that they won’t last forever.  And inspiration to let go of fears and rigidity.

I’m grateful to my former colleague Tim Jaasko-Fisher for his work with liberating structures in the Court Improvement Academy of UW Law’s Children and Youth Advocacy Clinic.

Disruptive Innovation & the AALS Clinical Conference

One of the highlights of last week’s AALS Conference for Clinical Law Teachers was the closing talk by Michele Weise, Senior Fellow, Education at the Clay Christensen Institute for Disruptive Innovation. (A big shout out to Michele Pistone for her role in making that talk happen!) I was superficially familiar with the  disruptive innovation thesis, but Weise’s half-hour talk brought to life its relevance to the current moment in legal education in a way that previous exposure had not. Disruptive innovations that shake up a market or industry often follow a predictable pattern, it is argued. The established players in the market target a higher end client base and compete on quality, improving the product and selling it at a high margin.  This leaves a significant, low-end segment of the market unserved. New entrants provide an inferior product to these unserved consumers, and gradually improve the product and expand their market.  Poof go the established players. Think personal computers, print media, digital cameras, mobile phones . . . . Traditional higher education has long failed to reach a significant segment of potential consumers and the federal government’s shift from financial aid grants to student loans has greatly exacerbated that problem. Arguably, the stage is set for disruptive innovation and on-line technology may be the means to that disruption. The next step of Weise’s analysis was what really captured my attention. She noted that higher education currently serves many functions – transmission of content and certification of knowledge or skills; providing a safe space for young adults to mature socially; networking opportunities, mentoring and tutoring; research & dissemination of scholarship. These functions can be – and are being – disaggregated and provided more cheaply on line. Even the Harvards of the world are potentially at risk, according to Weise. Law schools have traditionally provided a generalist education.  As legal practice becomes more specialized, that educational model arguably serves to mask more specialized functions that could be disaggregated.  This is already being tried in my home state of Washington with our new Limited Licensed Legal Technician (aka/ Triple LT) program.  But lawyers also wouldn’t have to be trained as generalists.  As course offerings expand, the potential for moving away from the traditional generalist education does also.  Already,  this shows up in the transcripts of some of my students who are not necessarily taking the doctrinal courses that were considered foundational in my day.  Does this matter? Before hearing Weise’s talk, during the Law Clinic Directors Workshop, I raised the question “how much doctrine do we need to teach?” Good lawyers, I observed,  have extensive doctrinal knowledge.  (Of course, law schools historically haven’t taught doctrine in connection with the experiential anchor points that many of us need in order to retrieve that knowledge for practice.)  Elliott Milstein later challenged the importance of doctrinal knowledge,  observing that his clinic students handle their cases well regardless of whether they have taken relevant doctrinal courses.  Often true.  And yet . . .  The counter-example that I didn’t have a chance to share:  one of my  students  recognized that we could challenge a new unemployment compensation statute on the ground that the subject was not properly included in the title of the legislation.  A classic case of issue spotting that came about solely because he was taking a Washington State Constitutional Law course.  (I didn’t recognize the issue.) A reminder that the ability to issue spot is valuable.  But  . . . state constitutional law isn’t a classic “foundational” “bar course”. This issue spotting was strictly serendipity – a traditional doctrinally-focused course load would not have accomplished this result. I’m still struggling with the generalist/specialist question.  But it leaves me thinking about the potential for niche curricular innovation aimed at students – often older ones who understand their talents, passions and life goals – who come to law school with a commitment to a practice area like criminal law, immigration law, or business law.

  • Are there enough of those students to justify a legal education targeted at those niches?
  • If so, can we focus their education in a way that really prepares them for their specialty?
  • And, can we at the same time identify a “sweet spot” of “just enough” generalist knowledge to accompany that specialization?  One that provides a foundation for passing the bar exam and the analytical and research skills to master new areas of the law, but does not take up the bulk of a three year curriculum?

I don’t know the answer to these questions.  But they strike me as worth investigating.

Using Portfolios for Assessment

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

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

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

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

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

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

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

The Baby Has Finally Been Birthed!

Comprehensive revisions passed

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

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

Well, it’s a start……

TEACHING RESILIENCE AND BEING RESILIENT : Filling Our Tanks This Summer

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

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

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

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

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

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

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

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

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

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

Quite Moving but Frightening Testimony at AALS Conference

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

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

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

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

School Missions & Visions

School Missions & Visions

By: Professor Pamela Armstrong

List of goals that applicants to law school want to fulfill (in no special order and some may not apply to every student):

  • I want to see Justice done.
  • I want to stand for the helpless.
  • I want to belong to a profession, not an industry.
  • I want to move or change the way our society conceptualizes “law” to account for the amalgam of cultures in our society.
  • I want to be able to put our culture’s ideas about “rule of law” against other cultures’ ideas, compare and maybe push for growth or something better.
  • I want to challenge the adversarial nature of our system as having gone too far from being representative to something else, and I need a way to expand my thinking.
  • I want to be part of the shrinking “market place of ideas.”

Sub-needs or sub-wants – the skills applicants would like to develop:

  • I want to find a better way to solve problems and disputes.
  • I want to think critically so that I can see the fallacies in positions, be aware of inherent inconsistencies in and weak foundations for ideas, and be prepared to stand up and challenge proponents of such flawed arguments.
  • I want to be able to move seamlessly between the legal regimes of many cultures.
  • I want to make my profession better than the generation before me.

Law School Applicants: What Are The Jobs Students Hire Law School To Do?

Following on some recent discussions about disruption and legal education, I’d like to solicit help from the community in determining what are the “jobs to be done” in legal education?

HBS Professor Clay Christensen tells us that a central place to begin an analysis of disruptive innovation is with the question: What jobs do our customers want us to do for them? In other words, what needs arise in our customers lives that they look to us to meet/satisfy?  Here is a relevant article: http://www.forbes.com/sites/stephenwunker/2012/02/07/six-steps-to-put-christensens-jobs-to-be-done-theory-into-practice/

I think that once the legal academy gets a good handle on this question, it may help us figure out how to reform legal education in light of the recent dramatic changes in market conditions.

I am still forming my ideas on this, so am looking to start a discussion and for feedback.  The more I think about it, we actually may have to address two questions, one focused on law school applicants and the second on law school students.  Or maybe the law school student questions are a sub-category of the overarching law school applicant questions.  That still needs to be fleshed out.

Here is my draft list of jobs that applicants to law school need to be done (in no special order and some may not apply to every student):

  • I need something respectable to do after college
  • I need to feel good about myself (to feel smart, special, elite)
  • I need a place where I can enjoy spending time with my friends/people who share the same ideas/talents/perspectives as I do
  • I need to become qualified to sit for a bar exam/ to become an entry level lawyer
  • I need to feel part of a larger community/network
  • I need to figure out how to use my gifts/talents for a fulfilling career (I am not a math, science type, so medical school, computer science, engineering, are not for me)
  • I need to find a career that will enable the lifestyle I anticipate for myself and my family

Each of the above needs has sub-needs.  For example: “I need to become qualified for the bar/ to become an entry level lawyer” has lots of sub-needs, such as:

  • I need to learn how to think like a lawyer
  • I need to learn fundamental legal concepts and theories
  • I need to learn the laws and legal theories that are relevant to my field of interest
  • I need to begin for form a professional identity
  • I need to learn the practical skills and professional values of lawyering
  • I need to learn how to conduct legal research
  • I need to learn how to write like a lawyer . . .
  • I need to find a job in my field
  • I need to begin to meet lawyers in the community in which I will work

I realize that many students may not independently identify these are needs.  What does that mean for the “jobs to be done” analysis?  Is education different in the sense that professional students may not always know their needs?  I’d also like guidance on how that is handled in the analysis.

Thanks in advance for any guidance, suggestions, comments, corrections, etc.  I hope that this sparks a fruitful discussion and look forward to hearing your feedback.

Law Practice at the Cusp of Disruption

Colleagues, please read this article by Clay Christensen and his colleagues.  As law professors, we need to understand how the practice of law is changing.  Only if we understand it can we best prepare our students for the world they are entering and will be practicing in going forward.  It talks about the move from BigLaw to NewLaw, and sees more evolution along the lines of Axion, AdvanceLaw, Lawyers on Demand, all within the scope of BigLaw.  

Then let me know what you think in the comments section below. 

Flipping Law School Classes

I flipped my class yesterday.  And I think it worked!

The class was on persuasive lawyering.  Over the summer I made a video about persuasive lawyering.  It talks about persuasion in relation to classic rhetoric, and the elements of logos, pathos and ethos.  The video is available on LegalED.

Here is what I did during the 55-minute class segment that I allocate in my syllabus for introducing the topic:

I assigned the video for students to watch as homework.  It is less than 5 minutes long.  Then, when we got to class, instead of starting the discussion of persuasion with a short lecture on the topic, I started with an exercise.  The students were asked to work with a partner to persuade my co-teacher (I am very fortunate to be co-teaching with Harriet Power from our university’s theater department this semester) and I that we should serve wine and cheese during each class.  The student teams had two minutes to come up with their arguments.  Then, each student team had one minute to stand up and persuade us, with each partner contributing equally to the argument.  Most argued about the health benefits of wine, others about how drinking wine would make the students more relaxed and open, which would facilitate better in class discussions, and others pointed out how the professors could benefit from the wine as well, at the end of a long, busy day.  The theme of culture was raised as well; some arguments tied the wine and cheese to our abilities to learn about different cultures through their food and drink.

My co-teacher and I then facilitated a discussion of the arguments in relation to the theory of persuasion.  We used the students’ arguments as jumping off points – we broke them apart to identify what worked and why, relating everything back to the theory the students had learned from the video and the tactics of persuasion – logos, pathos and ethos.  For example, the argument drew on logos when it referred to the research on the health benefits of drinking red wine.  The part of the argument that was more personal about us as professors and how we could also enjoy the wine, was about pathos, appealing to the audience’s emotions.

I have taught a class on persuasive lawyering about ten times before and this one seemed different; it was better.  Instead of my talking at the students about the foundations of persuasive argument, by flipping the classroom my students could learn the foundational information before coming to class.  That opened up the class for an activity in which the students could actually try it out.

Another added benefit was that we could provide feedback on the students’ presentation skills as well.  We told them whether their tone was appropriate and authoritative.  By getting the students out of their chairs, we could provide feedback to the students on their posture and stance and how body language can enhance or detracted from the persuasiveness of an argument.

I hope to make shorter videos on each of the three elements – ethos, pathos and logos – in which I flesh each out in more detail in the coming weeks.

If you have any questions, ask them in the comments section below.  I’d be happy to share more about the experience.  I also welcome comments on the video.

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