Readers may be interested in Populist Outrage, Reckless Empirics: A Review of Failing Law Schools, a recent blog post by Michael Simkovic & Frank McIntyre drawing on their article The Economic Value of a Law Degree .
Simkovic & McIntyre challenge the empirical analysis underlying Brian Tamanaha’s claim that legal education is no longer a good value given current law school tuition levels. They point out numerous ways in which Tamanaha’s argument rested on apples to oranges statistical comparisons, and note flaws in other studies he relied on.
Key conclusions: “[T]he value of a law degree typically exceeds its costs by hundreds of thousands of dollars. Even at the twenty-fifth percentile, a law degree is typically a profitable investment. At current price levels, law degrees generally provide an attractive double-digit pretax rate of return.Legal education is profitable both for students and for the federal government as tax collector and lender.”
For me the most provocative idea in the post was one from Tamanaha — supported by Simkovic & McIntyre — that I hadn’t remembered: Law students are good enough loan repayment risks that law schools might consider providing loans directly to their students at lower interest rates than are currently available. A new best practice, perhaps?
Filed under: Best Practices for Institutional Effectiveness, Uncategorized | Tagged: Failing Law Schools, Financing legal education, Simkovic & McIntyre, Tamanaha, Value of legal education | 2 Comments »
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?
Filed under: Best Practices & Curriculum, Best Practices & Externships, First Year Law School Innovations, Teaching Methodology, Uncategorized | Tagged: Alliance for Experiential Education, Carrie Kaas, Clinical Theory Workshop, Cynthia Adcock, Cynthia Batt, experiential education | Leave a comment »
Chief Judge Jonathan Lippman of New York State’s highest court (the NYS Court of Appeals) announced today the creation of a Pro Bono Scholars Program in which certain qualified law students may sit for the February Bar Exam during their third year of law school and then spend from March to May of their third year performing 500 or more hours of pro bono legal services. He made this announcement as part of his 2014 “State of the Judiciary” address. During what the Chief Judge describes as a “challenging economic environment and legal job market” for new law grads, the Pro Bono Scholars Program is intended to facilitate “quality mentoring relationships” and provide “adequate practical training” under the direct supervision of a practicing lawyer, while “helping those who cannot afford legal services.” It also “builds upon New York’s 50 hours pro bono admissions requirement.”
Judge Lippman noted
“In New York, we are so fortunate to have stellar law schools, with innovative clinical programs and well-crafted curricula.”
The NYS Board of Law Examiners (BOLE) has already approved the initiative which “will be offered to all of New York’s 15 law schools, as well as other schools that wish to participate.” Judge Lippman also noted that the supervision will “take place through educational programs developed by law schools and their clinics, and in partnerships with legal service providers, corporations and law firms.”
Senior Associate Judge Victoria A. Graffeo will head an Advisory Committee composed of law school deans from around the state to address “the logistics of an expanded February bar exam, ensure compliance with ABA standards, and develop a more precise timetable for the implementation of the various aspects of the Program.” Judge Lippman praised Graffeo’s “tremendous expertise and formidable organizational and managerial skills” in ensuring a “smooth transition for the new protocols,” noting that Graffeo used the same strengths in leading the 50 hour pro bono requirement.
For an audio webcastand transcript of the address see:
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.
To revoke this regulation would give employers in paid field placements significantly more power both to control student work and to minimize the employer’s supervisory role, and would significantly reduce externship faculty control over the educational benefit of the placement.
This is a real concern. When I directed Albany’s field placement program, I often had to discuss with supervisors the difference between their treatment of academic interns and paid clerks. For example, throwing an inexperienced student into night court without direct attorney supervision may free up the evening of the harried assistant public defender or assistant prosecutor but it fails to teach the intern the constitutional way to practice law. And, if you pay the interns you may well be entitled to assign them to pick up your dry cleaning or walk your dog because your time is more valuable, however those activities are hardly educational. These were actual issues I addressed and was able to resolve in favor of the students educational experience because the employer had no money in the pot and needed to follow the requirements of the law school. That leverage will be undercut if interpretation 305(3) is removed.
I also agree with CLEA’s position that
……nothing suggests that field placement courses are displacing a large volume of paid part-time work for law students. To the contrary, pervasive anecdotal evidence suggests that employers are unable to pay and would prefer that students work without pay. Field placement directors (and placement offices) routinely field requests from employers who seek to offer unpaid work through a field placement experience. Nothing suggests an increased demand by employers to pay students who are also getting credit.
If anything, during difficult economic times, law students need the negotiating power of an experienced attorney and faculty member even more, since they are more vulnerable to exploitation by employers. I urge the Council to keep Interpretation 305 (3) in place to protect the educational quality of field placements. As discussed in another earlier post, during Thursday’s public hearing before Council members, Interpretation 305 (3) was discussed, including the applicability of the Fair Labor Standards Act, possible exploitation of students, and the problem of differing expectations regarding treatment of paid and unpaid interns. These issues are complicated and deserve further attention. With the SRC members deciding to complete the comprehensive review at the February meeting and leave issues which need more data and input for another day, it was surprising, in my opinion, to observe them move so quickly on the proposal to remove 305-3 without a more informed vetting of the issues.
Disclosure: I was recently elected co-vice president of CLEA. However, I was not responsible for the CLEA position letter on this interpretation. When writing on this blog, I do not represent CLEA.
Filed under: Best Practices & Externships, Uncategorized | Tagged: #reformlegaled, ABA, ABA Council on Legal Education, ABA STANDARDS REVIEW, best practices for legal education, CLEA, clinical legal education, experiential learning, field placement courses, field placement program, law schools, law students, legal education | Leave a comment »
Standards Review Committee Says “Our Work is Done” on Skills Requirement and Tenure and Security of Position: It’s in Council’s Hands Now
I am sitting in the lovely and warm Conrad Ballroom of the Conrad Hotel in windy, freezing Chicago. So far today, the Standards Review Committee (SRC) of the ABA Section on Legal Education has decided to leave some major issues in the hands of the Council on Legal Education. (As you know from my earlier post, the Council yesterday held the last of its public hearings on the proposed revisions posted for notice and comment.) The overall theme of today’s session appeared, at least to this observer, to be an urgency to finish the comprehensive view (which began in 2008) as soon as possible so that the Council can finish its work by June and the ABA House of Delegates can vote in August. Many times, it was noted that issues not currently resolved in this comprehensive review can be considered carefully by the committee going forward.
First, in previous meetings the SRC had voted to send up to the Council a proposed revision that require each student to take six credits of experiential courses. Last December, the Council decided to post for notice and comment an alternative proposal made by CLEA that would require 15 experience-based credits. Today, the Standards Review Committee decided not to further discuss the 15-credit proposal but to leave the choice to the Council without any revised recommendation from the SRC.
Similarly, with respect to security of position and tenure, the SRC decided that the very robust and interesting comments on the issue should be considered directly by the Council. SRC member and Southwestern Professor Catherine Carpenter in presenting a review of the recent comments noted the helpful law review article submitted on tenure and said that two interesting themes emerged from the recent comments: 1) whether academic freedom can truly be secured by any framework other than tenure; and 2) whether a time of financial exigency is the best time to change the rules of the game. The SRC and the Council members present agreed that the Council is in the best position to review the recent submissions and comments and take action.
With respect to Bar Passage revisions, the working committee reported that the continued resistance of some states to reporting individual pass results to law schools counseled against taking action at this time. In addition, they did not feel that they currently possessed all the data on state cut rates, pass rates and other “meta data” to create a properly informed recommendation. It was underscored that there are several important issues regarding bar passage that must be revised and/ or clarified before the standard should be amended. The committee will take up the matter again after the summer.
There were some changes made which I will report on later.
The past two days in frigid Chicago, members of the Council on Legal Education heard testimony from almost 20 speakers deeply interested in the future of legal education and the education of future law students. I was fortunate to make it out of icy New Yorkto be able to attend yesterdays morning session. I was impressed with the speakers’ deep knowledge of legal education and their mastery of the intricacies of each of the multiple versions of proposed revisions. Several speakers advocated strengthening the pro bono requirements of the standards. Even more argued in support of the proposal to require 15 credits of experiential courses.
The issue of whether students could receive academic credit for paid employment received serious attention. DePaul Law Student Matthew Kerbis of the ABA’s Law Student Division requested that the Council change the standards to allow students to receive both credit and pay, while Professor Kate Kruse of the Clinical Legal Education Association urged that the current rules properly acknowledge that paid employment and a properly structured academic experience involve different sets of goals, legal frameworks and expectations. Judge Solomon Oliver, Chair of the Council, asked about possible exploitation of law students by employers.
SALT representative and University of Minnesota Professor Carol Chomsky, American University’s Professor Ann Shalleck and Hamline’s Professor Kate Kruse, all tenured professors, each argued against the two alternatives to 405 now before the Council, which effectively eliminate tenure and security of position for future teachers. They all agreed that the Council should support tenure and 405(c) security of position so that legal educators may continue to exercise academic freedom, to contribute educational perspectives to institutional governance, and to transform the outdated Langdellian model and integrate the professional development of law students’ practical lawyering and reflective judgment into American Legal education. As American clinical faculty became more secure under tenure and 405 (c), they took risks in teaching, pioneering a pedagogy which has become a model nationally and internationally. However, for those without tenure, Kruse argued supported by a chart CLEA submitted, there is a demonstrable absence of meaningful participation.
The President of the Association for Legal Writing Directors, Anthony Niedwiecki argued in a similar vein for the need to provide security of position and meaningful participation in governance to legal writing professors. In his testimony, Professor Niedwiecki referred to a recent survey of legal writing faculty which ironically shows attacks on LRW professors at the very moment that the profession and accreditors are demanding law schools provide the multiple assessments and hands on skills development LRW professors do best.
In my experience, at my school, the warnings of Kruse, Shalleck, Chomsky and Niedwicki are not speculative. We are experiencing those attacks now.
For written comments (including my own) submitted to Standards Review see http://www.americanbar.org/content/dam/aba/administrative/legal_education_and_admissions_to_the_bar/council_reports_and_resolutions/20130906_notice_comment_chs_1_3_4_s203b_s603d.authcheckdam.pdf
Tune in later today for a report on the Standard Review Deliberations.
My January 21 blog entry about how to best reach, and teach, the “miillennials” in law school, an issue raised in the fall 2013 article by Professors Benfer and Shanahan, highlighted several attributes of these students. While noting that these students’ preferences are particularly well-suited to clinical education, I neglected to mention other aspects of the law school curriculum to which the students’ inclinations are well-suited. Their orientation toward service, desire to contribute to the greater good, comfort with frequent and multiple forms of feedback, and enthusiasm for using real life opportunities for learning suggest that we can build into our curricula productive classroom engagements through a variety of experiential collaborations. At UMass Law, we are taking advantage of these possibilities through a pilot course entitled ”Community Research Project,” which satisfies our third semester Legal Skills requirement. During the pilot semester this fall, Professor Shaun Spencer guided students to develop their lawyering skills and values in a real-world context. Students in the class worked in teams to plan, organize, and complete a legal research and writing project involving constitutional, statutory, and empirical questions in support of an effort to amend the Massachusetts involuntary commitment statute. Through this collaborative effort, students enhanced their skills in legal research, analysis, and writing; and developed skills in problem solving, interviewing, professionalism, and teamwork (they worked both on their own and in groups).
Many of the suggestions made by Benfer and Shanahan can be tested in such collaborative projects. First, students’ experience in an ongoing process, requiring give-and-take with the “client” organization, can challenge their focus on short-term achievement (grades) rather than long-term success. They can experience critique of their work product not as destructive or insulting but as a way to help them become better lawyers by learning the importance of attentiveness to their clients’ needs. They can experience the internet as just one of a number of tools to be used in their own law practices, learning over time that instant answers are often insufficient to help them develop the necessary lawyering skills of critical thinking.
Courses such as the Community Research Project undoubtedly raise many issues for faculty, including how to choose the partner organizations, “who’s in charge?” — experiential learning/legal writing/skills directors/others, grading/assessment policies, students’ rights to object to subject-matter of projects, appropriate student preparation, use of journaling, and more. Our faculty will be considering these issues soon as it decides whether to permanently incorporate this course into the curriculum.
For those interested in learning more about this project, Shaun and I will be discussing at a conference session, “Bringing Outside In: Social Justice Collaborations in the Legal Writing Curriculum,” this June 29 in Philadelphia during a one-day workshop on Social Justice Collaborations in the Legal Writing Curriculum, just before the start of the Legal Writing Institute Conference.
Between the Building on Best Practices book project and a new role this year as Chair of Curricular Innovation, I’m pondering what we mean by integrating our curriculum. I’ve been playing with potential metaphors. Permeable box? Didn’t resonate. Suitcase — still playing with that one. Garden — potential but maybe too complicated for everyday conversation.
One that seems to work for many people — my dean loves it! — is a cake metaphor. Two contrasting images this metaphor brings up:
Think of the curriculum as a layer cake:
– in the first year we teach vocabulary, basic concepts, legal analysis and argumentation
– in the second year add in some simulation based skills courses like interviewing and counseling, negotiations, trial advocacy.
– in the third year, add real experiences representing clients, or capstone courses bringing together a range of substantive material, skills and opportunities for professional formation.
Or view it as a marble cake: incorporate each of the different aspects of legal education throughout all three years of the curriculum — building the knowledge foundation, developing a professional identity, learning professional skills, acting in role, including real experiences with clients.
I’m a fan of the marble cake myself. (Or perhaps it’s almond cake with chunks of almond paste & toasted almonds –oh, the perils of blogging while hungry.) If we emphasize only 1 side of becoming a lawyer in the first year — the intellectual, analytical side — we lose, or skew, too many of our students.
I’ve argued for years that “early and often” for clinics and other real experiential opportunities is the best strategy to give students context for their learning to help them understand and remember, maintain their passion (or enthusiasm, if you prefer), and teach lawyering skills. Colleagues such as Russell Engler and Susan Brooks reach similar conclusions.
Whichever approach to curriculum you prefer, does the cake metaphor help you in understanding our choices?
In “A Lawyer and Partner, and Also Bankrupt,” James B. Stewart of the New York Times [http://www.nytimes.com/2014/01/25/business/partner-in-a-prestigious-law-firm-and-bankrupt.html?_r=0 ] yesterday contextualized the plight, even for large-firm lawyers, of the constraining forces in the legal profession, while linking the fall-off in law school applications to this “widespread malaise.” Stewart highlights the story of Gregory M. Owens, a 55 year-old successful Wall Street lawyer and former partner at Dewey, Ballantine, Bushby, Palmer & Wood, and after a merger, Dewey & Leoeuf. Mr. Owens, who still works at a “eminent global law firm,” White & Case, has just filed for bankruptcy after being demoted to a nonequity “service” partner. Service partners neither share the risks nor rewards of the law practices and generally do not have their own clients; thus, their salaries are held to levels far beneath those of equity partners. When Mr. Owens declared bankruptcy, his listed annual salary $375,000 a year and, while clearly more than that earned by most, it is not sufficient to satisfy his New York City-based expenses, which include upwards of $10,000/month in child support and alimony, $7,500/month rent, and all the rest.
The recent growth of the service or nonequity partner (by the end of 2012, 84% of the largest 200 law firms maintained service partners, up 20% since 2000) is no doubt troubling for aspiring large-firm lawyers. It signals that these firms are having trouble maintaining the high salaries of the lawyers already in their firms. The service partners are the most vulnerable of all, as they are often not the rainmakers, and “not economically viable,” according to an expert in law firm management. Scott Westfahl, professor of practice and director of executive education at Harvard Law School, suggests that, in order to protect their job security, these law firm employees must develop a “deep expertise that’s hard to find” elsewhere. Professor Westfahl warns that, even with this additional expertise, “[t]here’s no job security” – even full equity partners are under growing pressure by clients who are demanding more accountability, resulting in more and more partners being “de-equitized.”
One suggestion offered by an equity partner interviewed for this article for those in practice today: periodically reinvent yourself and be prepared to work “more hours than rainmakers” to justify maintaining high salaries.
Given this current picture of the large law firm, what other suggestions might be gained from Mr. Owens’ story, for those of us involved in legal education as either professors or potential law students? Perhaps we all might realize that “following the money” may not necessarily make for a successful career. Maybe if law professors structured their curricula to support new lawyers who “follow the people” — both individuals and small business people in our communities who need but cannot afford legal assistance — these new lawyers would see that they could build satisfying lives in the law, ones that, while not necessarily supporting staggering material wealth, would nonetheless support interesting and appreciative clients, constructive and supportive relations with colleagues, gratifying intellectual challenges, a decent way of life, and constructive participation in our society.
Just appearing in the Fall 2013 edition of the Clinical Law Review is an astute and riveting article by Emily Benfer and Colleen Shanahan, “Educating the Invincibles: Strategies for Teaching the Millennial Generation in Law School” that should give us all pause, especially those of us now teaching our second and third generation of law student.
After describing specific types of nurturing that this generation experienced during their formative years, the article provides detailed and specific strategies for teaching these students, who were born between 1981 and 1999. It is assumed that, because of the particular formative experiences these students experienced as children, they have distinct needs, as learners, than did those of other generations, and that, if we want to “reach” them most effectively, we need to understand first who they are, so that we will be able tailor our teaching to them, in both the traditional and clinical types of classrooms.
The authors see these students as “confident and optimistic,” “service and cause-oriented and want to contribute to the greater good.” Yet they are also described as pressured, impatient, sheltered, and privileged. Because they have been told they are special, they can seem to have a sense of entitlement. Their assumption that short-term achievement equals long-term success causes them to focus on grades and not on the processes by which their grades are achieved. They do not expect failure, so are often surprised when their performance does not result in high praise. Again, because they were taught that they are “winners” simply for participating, they are accustomed to receiving awards for just that. They can become uncomfortable with criticism and “aggressive and even caustic when criticized.”
Further, according to Benfer and Shanahan, being inseparable from the internet, these students are able to take in massive amounts of information simultaneously and consider themselves to be efficient multi-taskers. Yet, because they are accustomed to instantaneous answers that do not require deliberation or examination, they may not have developed the tools to extract the depth of information necessary to develop critical thinking.
The types of learning environments preferred by Millennialists are made-to-order for clinical professors. According to the authors, these students thrive in learning environments that are self-directed, interactive, collaborative, team-based, and hands-on; and that employ frequent and multiple forms of feedback, multi-media, and stress simulations and real life opportunities for learning.
On the other hand, because of their common experiences with teamwork, the authors caution that these students may be uncomfortable working independently, perhaps due to the higher risk of personal failure.
Especially if you’re engaged in clinical teaching, do you recognize any of these traits in your recent students? Have they chafed at independent work? Been so over-confident that they have prepared insufficiently for court or other case responsibilities? Pushed back at any meaningful critique? Seem to feel they are entitled to that “A,” regardless of the difficulties they had with their class and/or case responsibilities? Expected results to come not from hours of work but from an initial impression gained while reading a couple of pages? If so, you will both enjoy and find helpful “Educating the Invincibles.”
A belated tip of the hat to Chuck Weisselberg and his colleagues at Berkeley, and Wasada for sponsoring a fascinating conference on December 16 & 17 bringing together U.S. and Japanese legal educators to discuss the challenges facing clinical education in both countries.
A key takeaway (paraphrasing Weisellberg, I hope accurately): By contrast to our colleagues in Japan, we in the U.S. are fortunate to have the experience of decades of clinical education, a large cohort of capable clinical educators and much more support in key sectors of legal education and the bar.
The movement toward professional education in Japan a decade ago was predicated on admitting significantly more graduates to the bar and other changes that have not materialized, resulting in grave structural challenges for the future of professional legal education in Japan.
Another positive note: One of the AALS Annual Meeting Hot Topic/Bridge Program sessions – After the JD: A Look at the Evolving Careers of Lawyers Who Entered Practice in 2000 discussed the new (3rd?) round of results from the American Bar Foundation’s important longitudinal study. I was only able to pop in for a few minutes, but was heartened to hear that the overall news is encouraging, including for graduates of lower tier law school on both employment and salary fronts, despite significant concerns around the progress of minority lawyers. Even Bill Henderson said something like “Gee, maybe things really aren’t so bleak.” Chime in with details if you were able to attend the entire program!