Teaching Legal Reasoning More Efficiently?

Teaching the traditional analytical skills more efficiently and effectively could provide a much needed opening for broadening the range of skills taught to all law students. In the legal academy’s version of the “socratic method”, law teachers historically taught the analytical skills” implicitly”. They demonstrated legal reasoning by pushing students away from their raw intuitions of fairness and justice to articulate rules and exceptions, while attending carefully to the inevitable ambiguities of language.

Some law teachers suggest that the process of learning to “think like a lawyer” fundamentally requires time and practice and therefore cannot be significantly speeded up.

Yet the implicit approach has been repeatedly challenged by scholars seeking to teach legal reasoning more explicitly, by naming and explaining how it works.*  (An obsession with the goal of teaching legal reasoning more efficiently was a major thread in two phases of my own legal career when I taught first year civil procedure. I struggled both to teach skills more explicitly and to provide students with opportunities to practice them.)

A recent contribution to this quest by my colleague Jane Winn grows out of her experiment teaching common law legal reasoning to undergraduates. Students were randomly assigned to use either a well-regarded study aid, or Winn’s own materials. The materials were also leavened by her own and colleagues’ experiences teaching foreign LL.M. and J.D. students coming from legal systems growing out of the European continental legal tradition.

Winn’s effort, aimed at law students, is notable in three respects. First, at twenty-nine pages it fills an intermediate-length niche: longer than a typical class “handout’, but shorter than the various book length alternatives. Second, it covers case briefing, outlining and exam questions, demonstrating how the three are related. Third, it grew out of an attempt to test her teaching method empirically using random assignment to a control group. Both law students and legal educators should find it a useful contribution.

The 2015 ABA accreditation standards may provide a laboratory in which to test efforts such as Winn’s. Standard 302 now requires law schools to adopt learning outcomes that, under subsection (b), must include legal analysis and reading; Standard 314 requires law schools to provide students with both formative assessment (feedback) and summative assessments (final “grades”); under Standard 315 law schools must engage in “ongoing evaluation of the program of education, learning outcomes, and assessment methods”. At its best this combination of more intentionally articulated outcomes, feedback to students, and program evaluation could prompt law schools to evaluate the potential for greater efficiency and effectiveness in teaching legal reasoning. I remain hopeful that enough schools will approach this task rigorously and in good faith that at least some progress can be made.

*Winn’s illustrious predecessors include:

  • Leading Legal Realist Karl Llewelyn, whose The Bramble Bush: Classic Lectures on Law and Law School have been assigned to generations of law students;
  • University of Chicago Professor and President and U.S. Attorney General Edward H. Levi, author of An Introduction to Legal Reasoning, originally published in the University of Chicago Law Review and then in book form;
  • Critical Theorist and Harvard Professor Duncan Kennedy, who took the decidedly un-Harvard step of visiting at New England School of Law in his attempt to reach beyond elite students and sharpen his skill at teaching students about the “gaps, conflicts and ambiguities” that underlie the development of the common law. He shared his insights widely with former students moving into teaching careers. produced a short volume
  • My former colleagues Pierre Schlag and David Skover, who produced a short volume early in their careers that catalogued the Tactics of Legal Reasoning (1985).
  • Richard Michael Fischl and Jeremy Paul, Getting to Maybe: How to Excel on Law School Exams (1999)
  • Leading clinical teachers Albert J. Moore and David Binder, Demystifying The First Year of Law School: A Guide to the 1L Experience (2009)

In recent decades much of the heavy lifting in legal reasoning has devolved upon teachers of legal analysis, research and writing. Among the results is a burgeoning literature proposing variations on the syllogistic Issue-Rule-Analysis (or Application)-Conclusion approach to analyzing and writing about legal problems, as well as a variety of textbooks.


Unmasking Assumptions about Employment Outcomes and Legal Education

In an upcoming Wisconsin Law Review article, Robert Kuehn, Associate Dean for Clinical Education and Professor of Law at the Washington University Law School, presents a cogent, well-supported and thoughtful article describing the limitations of and lessons we can learn from the existing empirical analysis correlating student enrollment in clinical education and employment outcomes.  Kuehn’s article, entitled Measuring Legal Education’s Employment Outcomes is particularly powerful because it provides a thorough empirical rejection of the claim that clinical coursework might actually harm employment outcomes, as asserted by Professor Jason Yackee and which attracted some sound-bite attention earlier this year. In what is, perhaps,  an unexpected twist, Kuehn demonstrates that using Yackee’s statistical assumptions and methodology also would produce negative correlations for those students who participate on law journals or in moot court competitions.  Kuehn argues that one can’t draw any reliable conclusion from Yackee’s 2013 model, and perhaps not from any nationwide statistical model – as opposed to a particularized analysis of one school –  on the likely effect of clinical courses (or other activities like law journal or moot court) on employment, and surely not the negative effect Yackee posits. Kuehn points out that as to clinical coursework, the available evidence (through surveys) indicates that such experiences do aid some students in securing employment.

If you, like me, still become a bit nervous about how much you actually remember from undergraduate statistics courses, do not be alarmed by this post!  You will find Kuehn’s article accessible and a quick good read, even when he is using words like “regression analysis,” “granular data” and “variable choices.”   Here are the points made in Measuring Legal Education’s Employment Outcomes which I found most helpful:

  1. Kuehn’s reminder that when one confuses correlationwith causation one is bound to come up with a “misdiagnosis.” One problem with Yackee’s analysis is the lack of granular data to calculate the true employment rate for those who took a clinic (or who did not).  In fact, the data is so poor that “the results never account for more than half of the variability in employment across schools.”
  2. Kuehn’s explanation of the “confounding effect of prestige” and bar passage on employment outcomes.
  3. The problems of validity and reliability raised by analyses which employ information from ABA questionnaires, particularly those self-reports submitted prior to 2014.
  4. The fact that “13% of law schools” provide 80% of the school-funded jobs to law graduates. Not surprisingly, Kuehn found this factor biases many results if you examine nationwide statistics. And when Kuehn removes those jobs from the statistical analysis, Yackee’s correlation with clinical education falls apart even using his own assumptions and methodology.
  5. Yackee’s model yields completely different results if one uses the US News Lawyers/judges data versus academic peer data to control for the possible influence of perceived prestige.
  6. Application of Yackee’s model to “Law Journals” and “Skills Competition” and S. Newssub-groups also show no relationship to employment outcomes!
  7. In Yackee’s model, a better ranking is “strongly associated with improved employment outcomes.” However, Kuehn points out that a “closer examination of the relationship between rank and employment indicates that this positive association, although statistically significant when applied across the entire range of top 100 schools, does not hold true for schools ranked 51 through 100 (emphasis added).” 
  8. Kuehn’s documentation of employers who require, “strongly prefer” or identify law clinic experience as a positive factor in hiring such as The U.S. Department of Homeland, legal services and  legal aid offices, district attorney, public defender, fellowships and private law firms.
  9. Kuehn’s description of National Association of Law Placement (NALP) existing information: such as the  2011 survey of lawyers with non-profit and government offices;  the NALP survey of lawyers in firms of predominantly more than 100 attorneys; the NALP survey of public interest legal employers;  and the NALP 2013 presentation on the employment market reporting that ” law firms say they want new graduates to have ‘more experiential learning, client-based and simulation.”
  10. Kuehn provision of good information on other employer information such as the Lexis-Nexis WHITE PAPER: HIRING PARTNERS REVEAL NEW ATTORNEY READINESS FOR REAL WORLD PRACTICEProfessor Neil Hamilton’s employer survey to determine the relative importance of twenty-one different competencies in employer hiring decisions, and Professor Susan Wawrose’s legal employer focus groups which found employers prefer new hires with ” well developed professional or ‘soft skills” along with “strong fundamental practice skills.”

Professor Kuehn concludes by recommending that studies could best be done on a school-by-school basis by “surveying likely employers to find out what educational experiences of students are most valued.”  Professor Kuehn also recommends that schools could also “retrospectively look at various employment outcomes for graduates and any relationship” to students’ experiences while in school.

I agree with Professor Kuehn and am happy to report that  Albany Law School,  through its faculty Assessment committee and Admissions office,  is currently engaged in conducting employer focus groups and analyzing what best helps our students obtain employment in their desired career paths.  Until good data and information suggests otherwise, Professor Neil  Hamilton’s advice to law students,which Professor Kuehn quotes in his “must read” article, bears repeating:

In this challenging market for employment, a law student can differentiate herself from other graduates by demonstrating to legal employers that the student both understands the core competencies that legal employers and clients want and is implementing a plan to develop these competencies, including an ability to demonstrate that the student has experience with these competencies.

What’s going on in California? “TFARR- recommended” 15 credits of competency training

For those who did not closely follow the California State Bar debate on the requirement of 15 credits of competency training for bar admission (the work of the Task Force on Admissions Regulation Reform, or “TFARR”), I summarize the current status.  (Although I am currently co-prez of the Clinical Legal Education Association, known as CLEA, this post is not written with that hat on.)  This is my own thinking, albeit, informed by the excellent work of the CLEA Advocacy committee.

The TFARR process was two-staged, over a three year period, with opportunities for public comment throughout. CLEA  participated in that process and submitted five separate comments on the proposals that are available at http://www.cleaweb.org/advocacy under “Briefs and Other Advocacy” (documents 4-8).

In the end, TFARR recommended 15 credits of competency training which can be achieved in a variety of ways (in addition to how experiential credits can be earned under the new ABA regulations), and which include six credits of summer work. You can read the TFARR Phase II Final Report  at: http://www.calbar.ca.gov/AboutUs/PublicComment/Archives/2014PublicComment/201411.aspx

The process was complete in November, 2014, with final TFARR recommendations to the State Bar Board of Trustees (that responded to public comments) and unanimous adoption by the Board: http://board.calbar.ca.gov/Agenda.aspx?id=10891&tid=0&show=100008800&s=true#10013881 (agenda item 113). The TFARR Phase II FInal Report represents a compromise based on extensive input.

Lately, some confusion has arisen because of a letter posted to the AALS website authored by a non-standing committee of Deans.  The confusion arises because:

  1. Neither AALS nor this special Dean’s committee ever participated in the two stage TFARR process and so appear to be sort of “johnny come latelys, ” and
  2. The letter mistakenly focuses on an earlier draft of the final proposal failing to recognize the compromises already reached in the final proposal.

I understand that there are efforts underway to correct the confusion which makes me happy since the Deans’ letter is signed by two people whom I have long admired in a variety of contexts.

Other blogs are already exploring the 15 credit  proposal and its interesting and creative approach. For example,   “Kudos to California”  What do our readers think?

Building on Best Practices now available as eBook

Are you trying to:

  • Develop a meaningful law school mission statement?
  • Understand new accreditation requirements, learning goals, and outcomes assessment?
  •  Expand your experiential offerings?  Decide whether to use modules or courses?  An on-site clinic, an externship, or community partnership?
  •  Teach ALL of your students in the most effective ways, using a full range of teaching methods?
  • Add to your curriculum more of the professional identity, leadership, intercultural, inter-professional and other knowledge, skills, and values sought by 21st century legal employers?
  • Lead thoughtfully in the face of the challenges facing legal education today?

These and other topics are addressed in Building on Best Practices:  Transforming Legal Education in a Changing World,  now available in ebook format from LexisNexis at no charge.

The print version is not yet out.  LEXIS-NEXIS is taking advance orders for $50, plus shipping.  BUT we understand that they will make one copy available to every US legal educator for free upon on request.  Details on this and international availability still to come.

Thanks, and congratulations, to book project sponsor Clinical Legal Education Association (CLEA), the more than fifty legal educators who participated as authors, and the countless others who assisted as readers and in numerous other ways.

And, a huge shout-out to my wonderful and talented co-editors, Lisa Radke Bliss, Carrie Wilkes Kaas, and Antoinette Sedillo Lopez.

Disruptive Innovation & the AALS Clinical Conference

One of the highlights of last week’s AALS Conference for Clinical Law Teachers was the closing talk by Michele Weise, Senior Fellow, Education at the Clay Christensen Institute for Disruptive Innovation. (A big shout out to Michele Pistone for her role in making that talk happen!) I was superficially familiar with the  disruptive innovation thesis, but Weise’s half-hour talk brought to life its relevance to the current moment in legal education in a way that previous exposure had not. Disruptive innovations that shake up a market or industry often follow a predictable pattern, it is argued. The established players in the market target a higher end client base and compete on quality, improving the product and selling it at a high margin.  This leaves a significant, low-end segment of the market unserved. New entrants provide an inferior product to these unserved consumers, and gradually improve the product and expand their market.  Poof go the established players. Think personal computers, print media, digital cameras, mobile phones . . . . Traditional higher education has long failed to reach a significant segment of potential consumers and the federal government’s shift from financial aid grants to student loans has greatly exacerbated that problem. Arguably, the stage is set for disruptive innovation and on-line technology may be the means to that disruption. The next step of Weise’s analysis was what really captured my attention. She noted that higher education currently serves many functions – transmission of content and certification of knowledge or skills; providing a safe space for young adults to mature socially; networking opportunities, mentoring and tutoring; research & dissemination of scholarship. These functions can be – and are being – disaggregated and provided more cheaply on line. Even the Harvards of the world are potentially at risk, according to Weise. Law schools have traditionally provided a generalist education.  As legal practice becomes more specialized, that educational model arguably serves to mask more specialized functions that could be disaggregated.  This is already being tried in my home state of Washington with our new Limited Licensed Legal Technician (aka/ Triple LT) program.  But lawyers also wouldn’t have to be trained as generalists.  As course offerings expand, the potential for moving away from the traditional generalist education does also.  Already,  this shows up in the transcripts of some of my students who are not necessarily taking the doctrinal courses that were considered foundational in my day.  Does this matter? Before hearing Weise’s talk, during the Law Clinic Directors Workshop, I raised the question “how much doctrine do we need to teach?” Good lawyers, I observed,  have extensive doctrinal knowledge.  (Of course, law schools historically haven’t taught doctrine in connection with the experiential anchor points that many of us need in order to retrieve that knowledge for practice.)  Elliott Milstein later challenged the importance of doctrinal knowledge,  observing that his clinic students handle their cases well regardless of whether they have taken relevant doctrinal courses.  Often true.  And yet . . .  The counter-example that I didn’t have a chance to share:  one of my  students  recognized that we could challenge a new unemployment compensation statute on the ground that the subject was not properly included in the title of the legislation.  A classic case of issue spotting that came about solely because he was taking a Washington State Constitutional Law course.  (I didn’t recognize the issue.) A reminder that the ability to issue spot is valuable.  But  . . . state constitutional law isn’t a classic “foundational” “bar course”. This issue spotting was strictly serendipity – a traditional doctrinally-focused course load would not have accomplished this result. I’m still struggling with the generalist/specialist question.  But it leaves me thinking about the potential for niche curricular innovation aimed at students – often older ones who understand their talents, passions and life goals – who come to law school with a commitment to a practice area like criminal law, immigration law, or business law.

  • Are there enough of those students to justify a legal education targeted at those niches?
  • If so, can we focus their education in a way that really prepares them for their specialty?
  • And, can we at the same time identify a “sweet spot” of “just enough” generalist knowledge to accompany that specialization?  One that provides a foundation for passing the bar exam and the analytical and research skills to master new areas of the law, but does not take up the bulk of a three year curriculum?

I don’t know the answer to these questions.  But they strike me as worth investigating.

Using Portfolios for Assessment

A few years ago I started to use student portfolios as part of the end-of-semester evaluation of my students. I have found that portfolios can be an excellent vehicle both for the student’s own self-reflection and for providing summative feedback.

Here is how I use them. At the end of the semester, I ask each student to prepare a portfolio of the written work the student did over the course of the semester. In doing so, each student is asked to read the first and final version of the principal documents that the student drafted during the semester (in the context of my cases, these include the client’s affidavit, any witness affidavits and a brief).

I also ask them to bring the drafts and final versions to the meeting. During the meeting, each student is expected to have reflected on his/her writing, considered how his/her writing progressed over the semester, and point out 2-3 improvements that he or she made. They are also expected to use the drafts to illustrate the progress.

My students find that the act of assembling the portfolio and rereading their own written work serves as a reminder of how far the student has come in crafting a legal theory or developing a factual account of the relevant events or even about some of the obstacles that he or she encountered along the way and how he or she managed to overcome them. I like this method of assessment because it is mainly about self-reflection. Each student in learning from his or her own work. The portfolio is simply a vehicle to make that learning tangible. It is a wonderfully, tangible way to show someone how much he or she has improved over the course of a semester.

I was recently speaking with Larry Farmer from Brigham Young University School of Law. He mentioned that he uses portfolios too. But in his case, they are videos. At the beginning of his course on Interviewing, before any class has been conducted, he asks each student to conduct a mock interview, which is videotaped. The students then spend the semester learning about, practicing, and refining their interviewing techniques.

Then, at the end of the semester, they are asked to review that first interview and to reflect upon their own improvement over the semester. Like the written portfolio that I use, this one also uses a student’s own work to demonstrate learning and progress. I plan to try it next semester.

Are there other ideas out there? Do you use portfolios? If so, how? How can I improve my process? I’d love to hear your thoughts in the comment section below.

Starting with WHY — Building Curriculum for Clinic-wide Orientation

My clinical colleagues and I are planning to convert an Orientation that we currently jointly teach into a 2-credit Clinic Orientation module. The Orientation typically includes a mixture of joint classes and smaller individual clinic-focused sessions.

Since we are developing this new course from scratch, it provides an opportunity to think deliberatively about how we design the course and to clarify our objectives and learning outcomes. In light of the changes in ABA accreditation standards, including the need to define learning outcomes and to assess according to our stated objectives, I thought it could be helpful to document the process we are taking as we develop the course.

My faculty colleagues and I met for the first time this week to start brainstorming for development of this new Clinic Orientation course. We started by brainstorming about WHY we want to develop the course. (I was inspired to Start with Why by Simon Sinek. Here is his inspiring TED talk on that topic).

Here is what we came up with as to WHY we want to develop a new jointly-taught, credit-bearing, Orientation module:

  1. Students need to be able to do certain activities early in the semester/hit the ground running:
  • Interviewing
  • Office procedures
  • Reflection/self-critique
  • Professional responsibility 101 (when working with clients)
  • Research
  • Fact investigation (including reading/maintaining files)
  • Working with interpreters
  • Persuasion
  • Attention to cultural difference/ competency/empathy
  1. Explain the WHY of our pedagogy (explain clinical pedagogy to students)
  • Active and engaged learning
  • Direct responsibility – WHY? Autonomy, mastery, purpose
  • Collaboration – across the board, with team, fellow clinic students, students in other clinics, support staff, faculty
  • Acting for Lawyers
  1. Reinforce “one firm” culture – clinical courses are different, collegial, work together, spaces where you can learn while having fun!
  1. Service Mission of Clinics
  1. Set our expectations for students
  1. Efficiency of teaching resources

As we developed this list, our goal was to brainstorm and include as wide a scope of objectives as possible. We decided to leave for another set of meetings the tasks of thinking about how to achieve these goals and what the classes designed to achieve them would look like. Keeping the conversation on task was a challenge; the temptation was to move onto thinking about how or what. We found it easiest when we designated a person to draw us back to the WHY task when the conversation started to branch off into thinking about HOW or WHAT.

Our next step is drawn from the IDEO Design Thinking for Educators Toolkit. IDEO is a design firm. It looks at systems from a design perspective. I am excited to start applying their theories and practices to legal education. I’ll keep you posted as that project develops.


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