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?

How Much Experiential Legal Education is Enough?

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

My, how times have changed.

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

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

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