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……

Five Tool Lawyers

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

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

Building on Best Practices and the Clinical Theory Workshop

Thought-provoking discussion at the NYLS Clinical Theory Workshop on Friday.

Definitions. Carrie Kaas reported on the “definitions” project of an Alliance for Experiential Education Committee chaired by Cindy Adcock of Charlotte. That committee is attempting to generate a common vocabulary around experiential learning — a set of common definitions for the overlapping and inconsistently used terms now in use. The Building on Best Practices project will need to decide whether to adopt that vocabulary, or not.

One of the most interesting, and challenging, tasks is to decide what differentiates an in-house clinic from an externship. Is it geography? Who pays the supervisor? A distinction rooted in pedagogy? Degree of independent role assumption? Or perhaps the distinction is no longer useful & and is ready to be junked?

I lean towards pedagogy & intensity of supervision, and degree of independent role assumption. Except when I lean towards junking the terminology and recognizing that we’re dealing with a continuum on multiple dimensions, as argued in Revision Quest: A Law School Guide to Designing Experiential Courses Involving Real Lawyering.

Sequencing. Cynthia Batt from Stetson presented her draft article on curriculum sequencing that is one of several independent articles spawned by the Building on Best Practices book project. Arguing for what I have termed the “layer cake” curriculum model, she conceded that the model is not necessarily the “only” or “best” model. But, she suggested, at schools where significant numbers of faculty are resistant to integrating experiential education throughout the curriculum, whether due to insecurity about lack of practice experience, fear of change, or other reasons, it is one that might have the best chance of implementation. Fair enough. A reminder to me that I’m at a school with relatively little resistance to experiential education.

Under the Radar Creativity. Cynthia made another comment that I’ve been pondering: “I am so impressed with my colleagues’ creativity, the kinds of work they are having students do that no one else knew about. Why are people so reluctant to talk about experiential education embedded in ‘traditional’ doctrinal education?”

That creativity certainly permeates my own law school. Based on a survey last spring, my colleagues are integrating experiential exercises into over 50 doctrinal courses. And they’ve created a long list of very creative simulation oriented courses, ranging from Venture Capital Deals to Supreme Court Decision Making to International Contracting.

So much of this creativity operates pretty “under the radar screen”. But I’m not sure it’s reluctance exactly. Lack of time? Lack of an appropriate forum? Understated, we-don’t-blow-our-own-horn Seattle manners?

I don’t know. But if our two schools at opposite corners of the country are representative, perhaps legal education has changed more than we know. Are we approaching a tipping point?

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

American Bar Association Accreditation Standard 305  addresses “study outside the classroom” and, in particular, field placement courses.  Interpretation 305-3 states:

A law school may not grant credit to a student for participation in a field placement program for which the student receives compensation. This Interpretation does not preclude reimbursement of reasonable out-of-pocket expenses related to the field placement.

The written submission by the Clinical Legal Education Association (CLEA) filed January 31, 2014 (found here or on ABA site) argues

To revoke this regulation would give employers in paid field placements significantly more power both to control student work and to minimize the employer’s supervisory role, and would significantly reduce externship faculty control over the educational benefit of the placement.

This is a real concern. When I directed Albany’s field placement program, I often had to discuss with supervisors the difference between their treatment of academic interns and paid clerks. For example, throwing an inexperienced student into night court without direct attorney supervision may free up the evening of the harried assistant public defender or assistant prosecutor but it fails to teach the intern the constitutional way to practice law. And, if you pay the interns you may well be entitled to assign them to pick up your dry cleaning or walk your dog because your time is more valuable, however those activities are hardly educational. These were actual issues I addressed and was able to resolve in favor of the students educational experience because the employer had no money in the pot and needed to follow the requirements of the law school. That leverage will be undercut if interpretation 305(3) is removed.

I also agree with CLEA’s position that

……nothing suggests that field placement courses are displacing a large volume of paid part-time work for law students. To the contrary, pervasive anecdotal evidence suggests that employers are unable to pay and would prefer that students work without pay. Field placement directors (and placement offices) routinely field requests from employers who seek to offer unpaid work through a field placement experience. Nothing suggests an increased demand by employers to pay students who are also getting credit.

If anything, during difficult economic times, law students need the negotiating power of an experienced attorney and faculty member even more, since they are more vulnerable to exploitation by employers. I urge the Council to keep Interpretation 305 (3) in place to protect the educational quality of field placements. As discussed in another earlier post, during Thursday’s public hearing before Council members, Interpretation 305 (3) was discussed, including the applicability of the Fair Labor Standards Act, possible exploitation of students, and the problem of differing expectations regarding treatment of paid and unpaid interns. These issues are complicated and deserve further attention. With the SRC members deciding to complete the comprehensive review at the February meeting and leave issues which need more data and input for another day, it was surprising, in my opinion, to observe them move so quickly on the proposal to remove 305-3 without a more informed vetting of the issues.

Disclosure: I was recently elected co-vice president of CLEA. However, I was not responsible for the CLEA position letter on this interpretation. When writing on this blog, I do not represent CLEA.

Evidence Based Experiential Learning?

Over on the Legal Whiteboard, Bill Henderson has an interesting post noting that despite the current call for more experiential education, we lack evidence to answer two key questions:

“(1) Among experiential teaching methods, which ones are the most effective at accelerating professional development? And (2) among these options, how much does each cost to operate? Quality and cost must be assessed simultaneously.”

Henderson is the principal researcher on Northeastern Law’s Outcomes Assessment Project (OAP) that is attempting to answer the question “Does Northeastern’s legal education model accelerate the development of law graduates who are ready to practice and to serve clients?” As Henderson notes, selection effectsmake these challenging questions to answer given Northeastern’s distinctive characteristics, including a progressive, public interest tradition, and a student body with high numbers of women and LGBT students decades before the rest of legal education.

If the OAP project shows that Northeastern’s legal education model does accelerate the development of its graduates, here’s an interesting follow-up question: Will that result be due to the co-op model specifically, or simply to the greater integration of exposure to practice into their students’ education than is typical. In other words, would a different version of a “marble cake” curriculum model have the same benefits?

Congratulations UNM and Editors of the proposed new Best Practices Book!

This weekend, the University of New Mexico hosted a workshop BEST PRACTICES IN LEGAL EDUCATION: The Walls Are Coming Down” in which draft chapters of a new “Best Practices” book were reviewed and discussed.  The proposal to create a second book focused on best practices in legal education is the brainchild of Professor Antoinette Sedillo Lopez, ably assisted by Professors Deborah Maranville, , Carolyn Kaas and Lisa Bliss. The symposium workshop brought together law professors from throughout the country interested in how legal education and the world of law schools has changed since the publication of the 2007 book Best Practices in Legal Education. Facilitated by Professors Beryl Blaustone and Alex Scherr, the conference explored how many law professors fluidly move from former silos of clinical, legal writing, lawyering, librarian, doctrinal, theory, or skills concentrations to pioneer a new kind of curriculum, better prepare students for the profession, explore the limits and usefulness of technology, and deepen the understanding and learning of law students through self-improving assessment processes.

Fully cognizant of the pressures on legal educators, the fact that not all in legal education welcome the need to change, and the moral imperative to address the concerns of debt-ridden unemployed law students, the authors, editors, advisory board members and readers reviewed challenges, cross-cutting themes and areas of promise. They engaged in innovative thinking about how to move legal education forward for the good of the profession, society and the students who desire to be lawyers of tomorrow. The keynote speaker for the Friday night dinner and author of the first book, Professor Roy Stuckey, directed the participants’ attention to what legal education should look like in 2027. At the same time, he reminded us that those seeking to improve legal education today stand on the shoulders of folks such as the honorable Rosalie Wahl and former ABA president Bob MacCrate who paved the way for the changes we have seen in the last 40 years. He recalled their joint mission to prepare “agents for justice in our communities.”

Every law graduate needs to understand fully that civic professional role of the lawyer. And every admittee to the bar has a sworn duty to improve our system of and access to justice. Returning to those principles can help prioritize our cost-cutting and can position us to move forward in the best interests of our students, our institutions and the society our profession is pledged to serve.

The Language of Experiential Learning

Here’s the note on terminology promised in Monday’s post.

For CLEA’s in-progress Building on Best Practices:  The Walls Are Coming Down book project my co-editor Antoinette Sedillo Lopez and Iare considering whether to include a section on terminology.   At least one effort to provide some consistency in usage is currently percolating, initiated by the Alliance for Experiential Education coordinated by Northeastern Law School.  An Alliance committee led by Elon’s Cindy Adcock is discussing initial draft recommendations on terminology in the hope of encouraging consistent usage.  Convincing schools to adopt any such recommendations could, of course, be a monumental task.  If accomplished, however, it would go a long way towards helping prospective students compare curricular opportunities.  And it could help prospective employers evaluate law graduates’ legal education.

My thoughts on what’s behind these initiatives and on the terminology conundrum:

The current downturn in law school enrollments, still bleak job prospects and changes in the structure of the legal profession has been accompanied by an explosion of interest in experiential learning, as law schools respond to the call to graduate practice ready professionals and seek to justify the three-year law school.  Law schools are experimenting with a wide range of experiential learning structures both for offerings involving real lawyering  — shameless self promotion moment: see my co-authored article Re-vision Quest:  A Law School Guide  to Designing Experiential Courses Involving Real Lawyering — and simulation based efforts.   Labels used for such efforts have proliferated and consistency of usage seems nowhere to be found.

Among the labels:

Clinic:  Perhaps the term with the longest pedigree and most consistency, but no shortage of unresolved issues,

  • Must a clinic involve an individual client?
  • If an effort focuses on tasks like lobbying or community education  that don’t require a J.D. and bar admission, should it qualify as a clinic?

For instance, should Street Law,  a community education effort, qualify as a clinic?  Schools that say “yes” include my own University of Washington, Georgetown,  where Street Law originated, UCLA and many others.   But Street Law is also offered as a  for-credit course not qualifying as a clinic, a part of a pro bono requirement, or a volunteer student activity.

My own program defines clinic expansively, in an effort to counterbalance the traditional litigation focus of law school, especially the first year.   Our clinic offerings include  mediation, legislation, public policy, community education, plus several that  include multi-forum advocacy.  But other leading educators have argues passionately for a narrower, more client focused definition.

Externship/Internship: These seeming  twins cause much confusion among the uninitiated.  The primary distinction follows from current ABA accreditation rules for externships, i.e for-credit, not-for-pay placements with a range of legal employers and opportunities for reflection through a classroom component or otherwise; internship is typically used for otherwise similar experiences that do not satisfy ABA requirements.

Practicum:  The new kid on the block in law, but familiar in social work and other programs for experiences analogous to law school externships. May be used as synonym for externship or  to denote an externship-like offering that doesn’t satisfy ABA requirements (my school uses it for LLM. “externships”).  Increasingly popular to describe externship-like “in the field” experiential opportunities  integrated with a seminar classroom course. In the last several year, for instance,  Georgetown, has developed a structured program of such courses in order to provide experiential education for a higher % of the student body in one of the larger law schools in the country.

Service learning:  A term widely used in undergraduate and K-12 contexts.  Often adopted by individual teachers eager to heighten their students’ understanding of current issues though exposure to how they play out in context.  May look very similar to some versions of a “practicum”.

Lab course:  A term initially coined at Seattle U. to describe small credit  simulation based courses to accompany doctrinal courses and provide an opportunity to apply the doctrine in a lawyering context and still often used that way, in for instance, Gonzaga’s first year required Skills Labs.   Other schools appear to use the term Lab for a specialty program designed to provide practical exposure to an area of law,, often including opportunities that would be considered a “clinic” under a broad definition of that term, e.g.  Chicago’s Corporate Lab, Vanderbilt’s International Law Practice Lab .

is it a ‘pipe dream” to think we can, or should, rationalize our use of these terms?  Your perspectives welcome.

Follow

Get every new post delivered to your Inbox.

Join 519 other followers

%d bloggers like this: