Increasing Experiential Education is Not a Remedy for the Broken Legal Services System – Thoughts from the U.K.

The lack of available legal representation for low income persons is a persistent problem, and not only in the U.S. Cuts to legal services programs have been deep in England and Wales, where access to civil legal aid has fallen by more than half.

In a recent post, a Solicitor Tutor at Northumbria University, Newcastle, lauds U.K. law schools for increasing clinical opportunities for students, but cautions against using them to attempt to fill the increased need for pro bono legal services. Her message is both important and familiar:

But what we mustn’t do is look upon law schools as a replacement for legal aid, or a sticking plaster for a somewhat bruised legal system.

We cannot forget that this is clinical legal education, designed to give law students the opportunity to hone their practical legal skills, to experience what it is like to sit opposite a real person with a real issue and help them solve a problem. They need to understand how the cases and legislation they learn about in the classroom truly affect individuals and organisations – and to reflect meaningfully on their personal strengths and weaknesses.

Thankfully, we may have moved beyond this corrective conversation in the U.S., where the ABA requires 6 credits of experiential education for all students graduating from accredited law schools, starting very soon. The ABA mandate is intended to improve educational outcomes, not to fill the void for legal services. Experiential courses are explicitly required to integrate and develop legal doctrine, skills, and values through faculty-supervised performances and self-assessments (ABA Standard 303(a)(3)). In contrast, pro bono opportunities “need not be structured to accomplish any of the outcomes required by Standard 302″ (Interpretation 303-3). While there is often a wonderful overlap between clinical courses/field placements and public service, it is nice to see the distinction between them articulated by the ABA.

Preparing Students for the Multistate Bar Exam

The trend has been fewer applications for law school and smaller graduating classes. Now we see a drop in bar exam performance. The ABA Journal reports that, according to Above the Law, “Nationwide, scores on the Multistate Bar Exam are nearly three points lower than the national mean for the July 2013 exam, the largest year-to-year drop since the start of the test.” Why? The National Conference of Bar Examiners points to “less able” test takers to explain the drop in scores on the Multistate Bar Exam. What does that mean?

Lawyers don’t need multiple choice test-taking skills to be effective in their work, but law graduates must master this form of test-taking to gain a professional license. So law schools, and their curriculum committees, must consider the extent to which they will shoulder the responsibility for preparing students for the bar exam – including improving their ability to succeed on multiple choice tests. Even before this marked decline in scores, many schools had already changed their bar preparation efforts from subtle to overt.

But at a time when law schools are focusing on teaching integrated doctrine, skills, and values, an already ambitious undertaking, is it backtracking to reconsider the multiple choice test – like LSAT prep all over again – instead of progressively developing knowledge and true professional competence? Or is it appropriate to simultaneously develop the skills students need to pass the (often criticized) bar exam?

Occupied

Last week Jeffrey Toobin joined the growing chorus decrying the state of legal education in his article in the New Yorker entitled “The Legal One Percent”. One might expect this nationally renowned legal expert, CNN commentator and author of numerous books on legal issues, to write a thoughtful and inspiring piece on the changes facing legal education and the legal market in general. Instead, what Toobin gives us is an intellectually lazy finger-wagging at law schools, boldly asserting that our “system of professional education” is “directly contributing to inequality.”
This inequality, according to Toobin, is related solely to income. He notes that lawyers working “at the top of the pyramid” at white shoe firms like, for example, Cravath, Swaine, and Moore (his example, not mine) are earning “profits per partner in the multimillions.”
Toobin goes on to characterize “recent law school graduates” as those “at the bottom of the pyramid” and cites the Atlantic for the statistic that “­[m]ore than 180 of the 200 US law schools are unable to find jobs for more than 80% of their graduates.”
I have no quibble with Toobin’s data or his freedom to express his opinion about the state of legal education. I do find it ironic that he took the time to write what could have been a thoughtful piece on the subject in such a time of change, and then simply pointed out that law firm partners make more than young lawyers and that new lawyers are finding it hard to land jobs in the softest economy this nation has seen in a generation.
More troubling, though, is his assertion that law schools are “exploiting” their applicants; and his utter failure to address the massive dearth of access to legal assistance faced by this nation’s citizens–not its law graduates–at the “bottom of the pyramid.”
Finally, Toobin, makes the assertion that “[t]he vast middle of the legal academy—at the big state schools, for instance—is doing only a little better than the schools at the bottom.” He seems to be referring to debt load of graduates, but fails to contextualize the assertion at all. And what of the actual justice-serving work that we in Toobin’s so-called vast middle of the legal academy are engaged in? What of the successful petition to the Inter-American Commission on Human Rights by the University of Miami’s human rights clinic faculty and students on a domestic violence case, yielding a globally landmark decision on police practices in domestic violence cases? What of the MacArthur Foundation grant awarded to Professor Sarah Deer of William Mitchell College of Law to continue her legal work empowering tribal nations to protect their citizens from violence?
Perhaps Toobin’s article title includes the term One Percent because he focused on them, rather than the Occupiers.

NEW YORK STATE BAR ASSOCIATION VIGOROUSLY OPPOSES PROPOSAL TO BRING UBE TO NY THIS JULY

Less than a month ago, the New York State Courts circulated a proposal to change the New York State (NYS) Bar Exam by adopting the Uniform Bar Exam (UBE) along with a second, separately graded “New York Law Exam” segment consisting of 50 multiple-choice questions, tested for one hour on the second day of the exam.   The proposal would make the changes effective for all current graduating law students who face the bar exam in July 2015.    This past weekend, the New York State Bar Association House of Delegates unanimously opposed the proposed immediate changes,  sending a  message to the NYS Board of Law Examiners and to the New York Court of Appeals – do not bring the Uniform Bar Exam and a yet to be formulated or studied New York Exam to NYS in  July 2015.  Even more significantly, the House directed the State Bar President, based on an amendment from the floor,  to do everything possible to prevent immediate implementation of a new bar exam in New York.  

So, how did NYS get to the point where the Courts and the Bar are in such conflict over proposed changes to the bar exam?

For several years,  the NYS Legal Education and Admissions to the Bar Committee (LEAB)  (on which I have formerly served as an active member) has been studying how to improve the bar exam to make it fairer for all groups of test takers and more relevant to what graduates need to know, value and do in the early years of practice. See NYSBA Legal Education September2013Journal particularly page 31.  The Committee, through its chairs, has reached out to the NYS Board of Law Examiners and the Chief Justice about these matters without success.  The UBE was not one of the reform measures which LEAB proposed for further study or pilot projects.

Suddenly, and without notice to the NYSBA LEAB Committee,  co-chaired by  well-respected practitioner Eileen Millett and equally well-respected Touro Law Center Dean Patricia Salkin , the courts circulated and posted the following:

1) UNIFORM BAR EXAMINATION (UBE)
 POSTED OCTOBER 7, 2014

The New York State Board of Law Examiners has recommended to the New York Court of Appeals that the current bar examination be replaced with the Uniform Bar Examination (UBE). The Court of Appeals is considering adopting the UBE for the administration of the July 2015 bar exam. On October 6, 2014, the Court of Appeals issued a Request for Public Comment on the proposal. Submissions will be accepted until November 7, 2014. A copy of the Request for Public Comment is available by clicking this link:   New York Court of Appeals Request for Comment  http://www.nybarexam.org

The proposal and request for comment document asserts that  “The UBE is prepared by the National Conference of Bar Examiners (NCBE) and passage of the test would produce a portable score that can be used to gain admission in other states that accept the UBE, provided the applicant satisfies any other jurisdiction-specific admission requirements. As the UBE is accepted by more states,the portable score will facilitate lawyer mobility across state lines, resulting in expanded employment opportunities for lawyers throughout the nation and facilitating multi-state law practices.”

Given the surprise announcement from the Court on October 6, 2014 of a 30-day comment period (open until this Friday, Nov. 7th) , the LEAB and its co-chairs  had only a matter of weeks to research, discuss and prepare a report for the State Bar Association about the implications of the proposed changes. The LEAB report 10-29-2014 (2) argues that it is simply too soon to discuss the merits of the Uniform Bar Exam and its potential impact on test takers in New York because of the surprise nature of the announcement along with absence of any study or report discussing a need, a cost-benefit analysis, or a discussion of whether there could be disparate impacts on minority test-takers.  LEAB is concerned about potential increase in costs for test-takers, impact on barriers to entry to the profession in New York, and impact on the New York job market.  LEAB  discussions emphasized that the practicing bar has been pressuring law schools to meet the demands of a changing market place including, among other things, producing more “practice ready” lawyers that would presumably include a richer knowledge of New York Law.  Impacts on foreign lawyers and other important issues for consideration were also raised.

On this past weekend, co-chairs Millett and Salkin presented their findings to the NYSBA House of Delegates.  The presentation to the State Bar can be viewed here (Click on the Nov. 1 House of Delegates Meeting and then click on the Report of the Committee on Legal Education and Admission to the Bar)  Co-Chair Millett challenged the notion that the proposed reforms as outlined would actually result in  portability. Co-chair Salkin pointed out that the notion of “uniformity” seems misleading given that in NY many uniform rules are not used and that  current law school  courses focus on statutes different than those used by the UBE .   Significantly, three past presidents of the NYSBA testified against the proposed immediate changes including Steve Younger who emphasized the issues raised by New York’s special connection with international lawyers from around the globe admitted to practice  in New York State.  Many expressed concern for current students facing the July Bar, including Albany Law School Professor Michael Hutter who asked  “Why the Rush to Judgment?” Dean Patricia Salkin and Betty Lugo (President-elect of the Puerto Rican Bar Association founded in 1957) expressed particular concern that minority bar associations were not consulted, and that questions on the proposed brand new “New York Law Exam” component have never been tested on previous exams, a “best practice” for all standardized tests that are given as points of entry to higher education and the professions.

Why does this matter?

The contents, pass rates and disparate impacts of the bar exam matter tremendously .  This is our profession’s gatekeeping device.  It announces  what we value and what we do not value. It will be a make or break change for many law students starting in July who have prepared their course of study under different sets of expectations. For many schools and many students, bar exam subjects and testing methods determine their course curriculum rather than what they need to meet student learning outcomes or preparing for practice. This proposed change deserves further scrutiny and evaluation.  New Yorkers also deserve that the Court evaluate  the success of licensure practices which include clinical evaluation while in professional school as opposed to sole reliance on standardized testing.

See attached SALT Letter-NY Bar opposing the proposed changes.

My  Reaction to the Proposed Changes:

POTENTIAL ADVANTAGES:

  • Should proposed changes result in a decrease in the number of doctrinal subjects tested on the NY Bar exam that will be an advantageous change both for making the bar exam more relevant and for allowing law schools and students to craft better curricular choices to prepare them for the jobs and careers of today and tomorrow.  (see earlier BLOG post on this issue here.)

POTENTIAL DISADVANTAGES:

  • The process for adopting the proposed change is too hasty and is unfair to current third year students and to second year students who have already planned three semesters around the exam.
  • The proposed changes have not been studied appropriately. For example, no one knows if the new format, particularly the 50 question NYS multiple choice format,  will exacerbate the already disparate impact on graduates of color and/or if it will create a separate barrier for admission to those who will make great lawyers but not particularly good standardized test-takers given the speededness/speediness factor – 50 multiple choice in one hour will make or break you on the NY part!
  •  The proposed format fails to address the critical need for bar licensure to include evaluation of actual, supervised, and  limited practice of law while in law school or immediately thereafter.  As a gateway to a client-centered, civic profession, evaluation of the limited supervised practice of law could and should replace – at least some part – of the current standardized testing.

NEW YORK LAWYERS, LAW STUDENTS  AND LAW PROFESSORS ACT NOW!  Comments due by this Friday November 7th.

Address comments to:

UniformBarExam@nycourts.gov

LegalED helps free classroom time for experiential learning

Regular readers of Best Practices for Legal Education Blog know about Michele Pistone’s LegalED. LegalED shares short videos of leading law professors discussing various topics. (Subject matter areas include administrative law, constitutional law, copyright, evidence, immigration law, legal ethics, trial advocacy, and more). Videos can be viewed by students outside of class, freeing up class time for hands-on, problem-based learning and assessment.

If you have not already joined LegalED, you can join now by filling out this short form.

An interview with Michele Pistone on flipping the law school classroom is currently featured in Scholastica Blog.

So you want to be a law professor

So you want to be a law professor. If you do a quick Internet search (as I did today), you will likely find the following advice:

  • The most important factors in determining your success in the market for a law professor position are: (1) the law school you attended (top 5 is ideal; top 20 is workable; a school ranked below that will make your search difficult); (2) law review membership, (3) federal clerkship or clerkships; (3) having one or more published law review articles after graduation; (4) a couple of years of practice experience; and (5) excellent recommendations from law faculty.
  • Adjunct teaching experience is not helpful to your candidacy.
  • Generally, practice experience is not helpful to your candidacy.
  • If you want to be a clinician, practice experience is likely important and a record of publication is likely less important. In one article, a professor explained that in his time on appointments committees he found that most candidates who had extensive practice experience were more interested in teaching than scholarship. He suggested, “Such people often are better directed toward clinical work than regular tenure-track positions.”

In the new era of legal education, this seems like a faulty framework for law school hiring decisions. Maybe this is a non-issue. After all, with declining applications and enrollments, many law schools are not hiring.

But for schools that are hiring, isn’t it irresponsible to continue hiring based on the old criteria? Today’s law students expect to be prepared for practice. The old model – a single exam at the end of a semester of case law and the Socratic method – does not cut it. It never adequately prepared people for practice. But in the old days (when I went to the law school), we got our experiential learning after graduation.

Today, that hands-on learning needs to start in the law school classroom. Preparing students for practice means providing context. It means putting students in the role of lawyer so that they can begin to understand how lawyers use the law to help solve clients’ problems in practice. It means providing students feedback during the semester.

This can, and should, be part of legal education for all three years of law school. It need not be reserved for clinics and externships. This education is something that all law professors should be able to provide our students.

Who should law schools hire to train the next generation of lawyers? Does it make any sense that people (1) interested in teaching; (2) with practice experience; and/or (3) who did not attend a top law school should be viewed as less qualified for law professor positions? Why is a clinical teaching position not a “regular tenure-track position” at most law schools? Aren’t people with a passion for teaching and/or with significant practice experience just as capable as the “traditional” applicants to produce meaningful scholarship?

Some law schools have followed a different hiring model for many years and others are changing. I am sure there are others that believe there is a work-around. They will continue with business as usual, but lean heavily on clinicians in non-tenure track positions to provide the experiential learning students and employers demand. But maybe it’s time to start thinking about the advantages of a different approach.

The “Dark Side” of Being a Lawyer

http://blogs.wsj.com/law/2014/09/15/law-students-need-to-hear-about-the-dark-side-of-being-a-lawyer-says-professor/

Follow

Get every new post delivered to your Inbox.

Join 630 other followers

%d bloggers like this: