The Task Force Speaks!

By: Margaret Martin Barry

I suspect that like many others in legal education, I turned to the final word from the Task Force on the Future of Legal Education with interest and hope.  After all, it has become the poster child for the growing crisis in higher education.  We recognize that there is high personal and public value in an educated populous.  That accounts for our investment in elementary and secondary education. However, unlike many of our Western counterparts, we limit our investment in higher education to loans, program-based grants and ever diminishing contributions to state schools.  What the report describes as the tension between the public and private value of legal education is not so much a tension between these two values as a lack of collective will to invest in our future through education.

This does not mean that higher education, including law schools, is off the hook with regard to  addressing costs.  There is evidence that law schools have gone to task in doing just this. However, it is unrealistic to look back to a day when law schools were less expensive and conclude failure if the earlier benchmark is illusive.  Higher education costs more today.  Similar to others in higher education, law students need and expect access to technology, high quality education that expands and refines their thinking and effectively prepares them for the work they hope to do, academic support, career support, and support for extracurricular activities that nourish their academic and professional development.  To produce this costs money.

Central to the production costs is having faculties that are dedicated to meeting educational needs, needs that are part of the public and private bundle of values the Task Force references.  While one may question the historic inflexibility of law school faculties in the face of critique of their educational priorities, I know I have, the inflexibility has been essentially born of a fundamental disagreement with regard to what constitutes high quality in legal education and priorities in maintaining that quality.

As the Task Force points out, the decibel level of criticism coupled with uncertainty about the market for legal services has induced a “climate receptive to change”.  Many law schools have engaged in cost cutting measures and curricular redesign.  Support for teaching is no longer limited to the broader support for scholarship, and the trajectory towards reduced teaching loads to support increased production of scholarship is halting, or at least being reconsidered.

Law schools and their faculties are also less certain that their task is sufficiently achieved if legal education is limited to the exercise of covering a body of doctrine and learning to think and write in a certain way.  Other skills that are part of the value a legal education should provide are making their way into the core goals for providing a quality legal education.  Slowly, the old dichotomy between what the 2007 Carnegie Report described as “knowledge” and the other competencies that a legal education suggests, which Carnegie referred to as “skills and values” is breaking down.  Yet the Task Force identifies dichotomy without recognizing its limited value or acknowledging its growing irrelevance:

“…[I]t is commonly stated that the basic purpose of law schools is to train lawyers, but there is no consensus about what this means.  It matters greatly whether, for example, one takes a view of lawyers as deliverers of technical services requiring a certain skill or expertise, or as persons who are broad-based problem solvers and societal leaders.”

Can one seriously deny that lawyers deliver technical services requiring not a certain skill but a range of them?   Are problem-solving and leadership skills somehow relegated to another strata that can be disaggregated from the professional role?  The Task Force goes on to correctly point out that a law school’s “views about purpose may not be reflected well in the curriculum”.  However, this is not because of such a narrow view of what lawyers do but a limited, though evolving, view about the extent of law school’s role in preparing them to do it.

To move law schools along the path of change, the Task Force speaks much about heterogeneity.  I certainly value diversity, but when it comes to what law schools should offer, there are considerations not specifically addressed by the Task Force that should be expressly understood before we get too far down the path.  Society, including the law student, has an interest in knowing that a graduate of a law school has a working foundation in the work that lawyers do.  We can discuss whether this expectation is realistic, whether indeed clinical legal education is the answer or post law apprenticeships are inevitable or legal education should train specialists instead of generalists, but legal education has for some time promised more than we produce.  Now that the cover provided by the law firms and agencies that provided post graduate training is eroding, the reality of the limitations of traditional legal education is more apparent.  Expansion of clinical offerings and outreach to the bar are manifestations of this recognition.

Connected to its assessment of the financial burden of law school, the Task Force speaks of the need for more limited training that would allow for greater service to those who cannot afford the debt laden lawyer.  It referenced the Limited License Legal Technician provisions that Washington State has been rolling out.  Limited licensing may well be inevitable for a variety of reasons, though without specific funding for the services they would provide, it may not do much more than what lawyers offering unbundled services and pro bono legal services are currently seeking to do for those unable to otherwise afford legal service.

The Task Force proposes several new entities within the ABA to address cost, debt burden and assessment and improvement of legal education.  It does not discuss where these entities should fit in relation to the existing Section of Legal Education and Admissions to the Bar.   However, it does goes on to list a number of Accreditation Standards and Interpretations of Standards that the Council of that section should “eliminate or substantially moderate”.   I believe it is fair to say that several have been under significant reevaluation for the past several years.  What I found of concern from a Task Force that took a year to produce its report is the fact that it listed the Standards and Interpretations without connecting their existence or elimination to goals for the quality of legal education, or even directly to cost reduction.

For example, while one might argue that the current detail in interpretations 402-1 and 402-2 are byzantine and not directly related to ratios in a given classroom, is it enough to say that a law school must have “a sufficient number of full-time faculty to fulfill the requirements of the Standards and meet the goals of its educational program”, which is what would be left if the interpretations are eliminated (something that is currently proposed by the Sections Standards Review Committee, by the way)?  Once we identify full-time faculty as a basis for developing a student faculty ratio, what do we do about administrators and those full-time teachers that a law school might not identify as faculty?  What benchmark do we have for enforcing this indicator of quality?  If we are responding to concerns about costs, should classes of 300 students be acceptable because it is cheaper and arguably meets educational goals that can be identified?

Similarly, if we throw out Standard 405, and 206(c) and 603, what are we saying about leadership in law schools?  Why, at the core, does higher education value security of position?  It has long been understood that such security attracts those who value legal education and want to dedicate themselves to the teaching, scholarship and service that is expected to maintain and improve law schools that have, for all the flaws identified and assessment in progress, managed to provide significant educational value.  The idea that tenure is dragging law schools down ignores not only the dedication of many law professors, but their ability to speak to the educational mission they serve instead of being ignored or dismissed by administrators who may be more focused on a bottom line than balancing the equally significant institutional purpose.

The report also spends time discussing generally the need for greater ability to innovate, suggesting that the ABA Standards inhibit heterogeneity.   While I agree that the variance process should be made more transparent and that successful innovations should lead to appropriate regulatory modifications, it is worth reminding ourselves that not that many schools have innovated within what is currently consistent with and arguably encouraged by the existing Standards, much less sought variances to go beyond them.  It may well be that far more than underscoring differences, we first need to be more certain than we are about what constitutes a sound legal education, at any institution.   The end result may not be as homogenous as the Task Force fears, but it should provide greater assurance of reliable preparation for the profession.

All this said, I am grateful to the Task Force for undertaking this project.  I know it reflects a lot of work over and above busy schedules.  Given the membership and some of the input entertained – indeed, given the waves of criticism that legal education is facing coupled with uncertainty about legal service market, I dared to hope for something more than additional committees, cursory comments on accreditation standards that have already been the source of significant discussion, and a call for law schools to reduce costs and other steps the vast majority are already undertaking.  Maybe the message is that there is nothing new to add, we will continue to mull it all over, propelled relentlessly by evolving markets and minimal public commitment to the value of higher education.

Law School Hybrid

December 18, 2013
By: Carl Straumsheim

William Mitchell College of Law has received approval from the American Bar Association to launch a part-time J.D. program that blends face-to-face instruction with online courses. Although the hybrid program marks the first of its kind, experts are split on whether it marks an experiment or a turning point for how legal education is delivered in the U.S.

The four-year part-time program, meant for students whose location or work commitments prevent them for pursuing a legal education full-time, will mix recorded lectures and quizzes with video conferences and online discussion forums when it launches in January 2015. Students will also be required to complete externships and attend weeklong on-campus simulations at the end of each semester to practice their legal skills. Mitchell’s Board of Trustees approved the program Tuesday night.

“Our message is that this is not an online J.D. degree,” said Eric S. Janus, president and dean of the college. “This is a J.D. degree that has very substantial and rigorous face-to-face components that I think are going to be designed in a unique way to help people become more prepared to practice law.”

Online education and accreditation from the American Bar Association rarely mix. Although fully online law programs exist without ABA approval, institutions that seek accreditation need to tailor their programs to a set of standards that have been in effect since 2002. The program itself needs to consist of at least 83 credits — Mitchell’s hybrid program clears that hurdle exactly — but no more than 12 can be granted from pure distance education. Of the remaining credits, one-third of the coursework can also be completed remotely. As an added twist, programs can offer only four credits of distance learning per semester.

Barry Currier, managing director of the ABA’s legal education section, said the four-credits-per-semester rule may have discouraged law schools from experimenting with hybrid programs. He also pointed out that few law schools seem to be aware of or interested in developing programs that take advantage of those regulations.

“Maybe they think their students won’t like it?” said Currier, previously dean of the online Concord Law School of Kaplan University, which after clashing with the ABA decided not to seek its approval. “Maybe they think employers won’t be interested in students that went to a school that was one-third blended?”

For many law schools, the requirements regulating distance education have been been viewed as “insurmountable,” said Simon Canick, associate dean of information resources at Mitchell. “I think a lot of law schools also use the existing ABA standards as a reason to not push the envelope,” he added.

To receive approval for its hybrid program, Mitchell submitted a variance request that exempts the program from the requirements — under certain conditions. The college must enroll no more than 96 students per year, assess the program on an annual basis and report its findings to the ABA. The college also had to waive its right to confidentiality to help other law schools learn from its experiences.

“I see this as a first step for the ABA to be welcoming of innovation,” Janus said.

Variance requests represent another untapped opportunity for law schools to experiment with new forms of legal education, Currier said. “The ABA has not gone around and said ‘Oh please, please, please submit a variance request,’ ” he said. “It is not the case that there are dozens of requests for variances about distance learning that have been turned down. Maybe the perception is they would have been turned down.”

If the experiments prove successful, however, they could guide the ABA to revise its own standards, Currier said.

The approval of the hybrid J.D. program can also be seen as the ABA responding to those who have called for law school reform — a group that includes President Obama, a graduate of Harvard Law School. The ABA last year launched a Task Force on the Future of Legal Education, which concluded the organization’s own policies was stymieing innovation.

“The current procedures under which schools can seek to vary from ABA Standards in order to pursue experiments are narrow and confidential,” the task force reported in September.

Mitchell submitted its variance request in July, and Canick said the college benefited from the timing of the task force’s report.

“I think the ABA faces some significant pressure externally to innovate and allow innovation,” Canick said. “Here comes this proposal that’s really good. I think they were eager to show they were going to embrace innovation.”

Mitchell, an independent law school located on one block in the residential Summit Hill neighborhood of St. Paul, Minn., may not seem like a hotbed of legal education reform. Like many law schools, the college has seen its enrollment shrink over the past few years. About 240 students enrolled this fall, down from about 260 the year before and about 300 two years ago.

“We’re doing fine, comparatively speaking,” Janus said. “I do think that part of the message is that law schools have to add value, and the programs they offer need to be meaningful and accessible to the people who want to study law. This is not a response to declining enrollment.”

The online option instead represents a third track and a nod to the college’s history, Janus said. Mitchell was founded in 1900 as St. Paul College of Law, a night school catering to the same type of students who would consider an online education. The college added a full-time option in the ’70s.

Aside from the mode of delivery, the three tracks are fairly similar. Applicants for the hybrid program won’t see more lenient admissions requirements or tuition savings, for example. “We understand that the blended learning is not for everybody, but it will meet — we think — the needs of a group of people,” Janus said.

The law school has for years offered about a dozen blended and online courses, and plans for a fully hybrid J.D. program have been in the works since 2009. Currier said the the decision to approve the request was a result of the strength of Mitchell’s application, not external pressure.

“What the council saw was that this was a school that has a long history of part-time legal education and a long history of serving students who are a little more nontraditional in terms of age and working experience than many law schools,” Currier said. “I think it’s safe to say something like this has never been approved before.”

Read more: http://www.insidehighered.com/news/2013/12/18/american-bar-association-approves-experimental-hybrid-jd-program#ixzz2nryuK8wt
Inside Higher Ed

The Ideal Law School Graduate? A ‘People Person’ Who Can Do Research

By: Jacob Gershman

You can be a sharp writer and a nimble researcher who is skilled at analyzing cases.

But for law school graduates entering the workforce, it’s the softer skills, like work ethic, collegiality and a sense of individual responsibility, that really impress legal employers, according to a new study.

University of Dayton School of Law researchers conducted focus with legal employers to find out what they expect from new law school graduates.

Dayton law professor Susan Wawrose said researchers had thought that the attorneys would focus mostly on the need for basic practical skills, like writing, analysis and research. But comments on soft skills — defined as “personal qualities, habits, attitudes and social graces that make someone a good employee” — tended to dominate the responses.

“The most surprising outcome of our research was the primary importance employers placed on the ‘intra- and interpersonal (socio-emotional)’—soft skills—needed for workplace success,” writes Ms. Wawrose, who authored a report on the study appearing in the Ohio Northern University Law Review.

The researchers interviewed 19 attorneys in the Dayton area who are “actual or potential employers” of graduates from the law school. Most were employed at law firms of varying size. Several others worked as in-house counsel, as an assistant federal public defender, or for legal aid.

The focus group participants said ideal job applicants have a strong work ethic, can work independently without excessive “hand holding,” and would bring a positive attitude to the workplace.

One attorney griped about new hires who “come in . . . [with] this expectation that we’ll sit down and kind of spoon feed them.” Others agreed that some attorneys fresh out of school think “they have a law school degree so they’re entitled to rise up and become partner.”

Other comments suggested that law schools put more of an emphasis on teaching research:

Employers, particularly those with more years in practice, rely on new attorneys to be research experts. The employers in our focus groups have high expectations when it comes to new hires’ research skills, i.e., “[t]hey should be able to adequately and effectively find everything that’s up to the minute.”

Being a research expert also means knowing how to scour books, not just websites, the paper said. “Statutes, treatises and encyclopedias, and desk books are the sources employers still use in paper form. For this reason, new attorneys may want to be familiar with these paper sources,” writes Ms. Wawrose.

The employers also observed that while some new hires are good at cranking out a “full-blown research memo,” the same ones stumble on shorter assignments:

The purpose and audience of the assignment are the key. “[T]hey need to be very cognizant of who their audience is.” Is the document for a client? And, which client? Is it the one who is “very busy” and “want[s] to know, ‘boom,’ ‘what’s the answer[?]’” Or, is it the client who is “all into the details” and will feel “nervous if you don’t give them all the specifics.”

http://blogs.wsj.com/law/2013/11/25/the-ideal-law-school-graduate-a-people-person-who-can-do-research/

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.

Student Practice Rules

Our DC colleagues are leading a charge to change student practice rules to afford additional practice-related experiences for law students.  Are other groups considering similar proposals?  http://bit.ly/HIWCnW 

 

 

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