Looking Beyond the Trends: Who’s Our Curriculum Really For?

Just catching up on my summer reading and I came across a short piece titled, “My Best Marketing Advice for Lawyers,” by John H. Fisher, Esq.  In the article, Attorney Fisher responds to an inquiry for his best marketing advice by saying: “Identify your ‘Ideal Client’ and nurture and cultivate the relationship with your Ideal Client through a series of educational and informative newsletters, speaking events, books, and social events.” 1  This three-step plan: paint a picture of your ideal client, attract your ideal client, and nurture the relationship with your ideal client was clear, linear, and supported with some truly clever and constructive examples of providing best tips and advice – for your referral partners. The article concludes that this plan has the power to change law practices, create goodwill, and perhaps make the actor a “mini-celebrity among peers.”  Apropos of the previous blog, such advice seems consistent.  And, to be fair to Mr. Fisher given what follows, he was posed the question, and we are still in the post “failing” law school phase.


Two of several things that give me pause here, are in who is assumed to be the “ideal” client and how we are affecting our students’ priorities when we offer and even encourage them to take “law” school courses in economic trends in the legal profession and personal finance.  The apparent underlying assumption of both articles is that the “ideal” client is someone who will financially advantage the lawyer, and/or that the wealth of our profession and ourselves is worthy of credit in a school devoted to the study of law. Understanding that making a living is important, I’d note that there are no major stories about whether lawyers make a “living wage” either here2 or in other nations, or of lawyers who cobble together several jobs over the long-term to support themselves or a family.  But I did, however, recently listen at a ceremony where the head of a non-law institute spoke eloquently about the goal of that educational institution as doing justice and having their faculty involved in field-work toward helping others establish workable justice systems.  Non-lawyers.


Whenever students struggle with understanding a statute or regulation and where I sense a disconnect, I encourage asking who benefits from a policy or something being advocated.  Then, recognizing how easy it is to go along with an idea that is being advocated when it is self-benefitting, I encourage students to ask who is left out and, if appropriate, why we continue to allow others’ priorities to be that determinative.

Expanding the Curriculum to Build Better Lawyers

Just finished reading a fascinating piece in the Journal of Legal Education by Pamela Bucy Pierson, Bainbridge Mims Professor of Law at the University of Alabama School of Law.  Her article, Economics, EQ, and Finance: The Next Frontier in Legal Education,  describes the results of her survey of how law schools are covering the topics of: (1) economic trends in the legal profession; (2) emotional intelligence in issues such as managing stress, building resilience in the practice of law; and (3) personal financial planning for tomorrow’s lawyers.  The article outlines why each of these topics is essential to preparation of tomorrow’s lawyers.  Ninety-one law schools responded to the author’s survey on this topic, and the results are encouraging. piersonchart  The descriptions of courses and ancillary programs addressing these topics provides a rich source of ideas for approaches to building these topics into the curriculum. So grab that copy of the Journal that is likely piled in your mailroom or read the article on SSRN

The Cost of Traditional Legal Textbooks . . . and Alternatives

As the semester starts, 1Ls face a shock as their basic required textbooks cost over $200 apiece. Publishers have realized how the used textbook market cuts into profits and have decreased the number of years between editions.

These prices are not sustainable, especially for those law students who are already squeezed to the limit.  As a librarian, I have seen more and more students relying on the textbooks on Course Reserve, even going so far as to using them in open book exams.  We fear the day when we have 5 students who want the text for their open book exam and we only have 3 copies.

At the same time, as a library, becoming a textbook supplier helps our students, but it also means there are other materials that we cannot acquire or license.  With this bundle of challenges, there should be an easy solution, but most faculty who assign textbooks are removed from the cost of the assigned text.

Intellectual property textbook authors are at the forefront of this wave of change with several free and low cost alternatives. For examples, see Semaphore Press and Clause 8 Publishing, but there is also quite a bit going on beyond IP, notably e-Langdell (CALI). At that site, you can find texts on torts, sales, contracts, etc. It is no longer an excuse that there are no alternatives to traditional legal textbooks.

Some faculty have started creating their own textbooks, and many of those have matured and are now distributed, but some live primarily on Canvas or TWEN pages.  For those of you who have done this, why not make your materials more widely available?  Yes, they might not be as perfect as you would like, but what is?  Help students around the country by freeing your course materials.  If you are not sure how to do it, contact your AALS section or contribute to H2O, a legal crowdsourcing site associated with top names in the field.  If you are looking for edited cases and course structures, it should be a first stop if you would rather not edit a new case when someone else already has.

In short, the time to embrace alternatives to traditional textbooks, even for traditional subjects has arrived.  Imagine if you could give each of your students $200 . . . well, you can.

For more on this topic, see James Grimmelman, Alternative Publishing Models for Cost-Conscious Professors, and Ben Trachtenberg,  Choosing a Criminal Procedure Casebook: On Lesser Evils and Free Books

Fall and Spring Reading Group Suggestions


As we ready ourselves to begin a new academic year, I wanted to offer some suggestions for inspiring reading.  Perhaps you will even consider, as I am, starting a faculty reading group to grapple with related issues.


Implicit Bias and its Consequences.    I suspect that many of you have continued to reflect about how “black lives matter” and how we might encourage our law students to grapple with related issues.  I strongly recommend a new book, out in paperback just last week, from one of the principal researchers on implicit bias.  The authors are Mahzarin R. Banaji and Anthony G. Greenwald, and the title is Blind Spot:  Hidden Biases of Good People (Bantam Books, 2016, $17.00, available from Amazon.com and elsewhere).  The authors are experts on the ”implicit association test”  (available at https://implicit.harvard.edu/implicit/takeatest.html ), a tool used to explore the relationship between visual stimuli and perceptions.  For more background, see https://www.projectimplicit.net/index.html .  The test involves responding to various sets of paired visual stimuli, such as black and white or Asian and non-Asian faces.  https://www.projectimplicit.net/stimuli.html This highly accessible book explores the sources and nature of hidden biases, the dynamics of stereotyping, and the social implications of widespread implicit bias.  The book is highly accessible, and its research is also well-documented in footnotes.  I’m working with a former student to develop a continuing legal education program on cultural competence and implicit bias, which we hope to roll out in February.  I’m also thinking of inviting faculty and staff colleagues (and perhaps some students) to come together for lunch time reading group using this text.  I’ll keep you posted on how these efforts proceed.  I’d also encourage others to post about ways that they may be working to engage similar issues.


A Culture of Assessment.  Culture plays an important but potentially negative role in shaping implicit biases and stereotypes.  Culture can also be shaped in positive ways to improve institutions.  I recently read Professor Andrea Funk’s manuscript for “The Art of Assessment,”  forthcoming in January 2017 from Carolina Academic Press (http://www.cap-press.com/books/isbn/9781611637359/The-Art-of-Assessment).  This book, too, would be a wonderful choice for a faculty/staff reading group.  As most readers know, the American Bar Association now requires law schools to set “learning outcomes” for students, adopt more comprehensive forms of assessment and develop plans for “ongoing evaluation” of their “program[s] of legal education, learning outcomes, and assessment methods.”  Many in legal education fear that these new standards will result in intensified bureaucratic burdens.  Professor Funk, on the other hand, sees them as offering a new arena of creative activity, a space for engaged inquiry, a means of helping students learn more effectively, and a framework for building institutional pride.


Professor Funk’s book focuses on how individual faculty members and their schools can create a culture of assessment, perhaps the most crucial but often invisible element in achieving an energizing and constructive assessment process.  She is very effective in deconstructing opaque language and concepts, suggesting methods for getting started, and creating a sustainable assessment cycle.  She offers important tips on building on existing practices, gathering and using information, grappling with doubts about why and how assessment can work, and building institution-wide interest and commitment.  This is a book that gives readers important tools, but goes further, by illuminating the real potential of assessment for teachers, learners, and educational institutions.  It puts me in mind of Parker Palmer’s wonderful The Courage to Teach, with its uplifting willingness to confront fears but build on hopes that are dear to the hearts of the best law teachers:  helping students learn, working with colleagues, and “teaching from the heart of hope.”


I hope your coming year will be a fruitful one.  Important conversations with colleagues, spurred by books like these, can help make it so.  Please share your own suggests with others on the Best Practices Blog!

Experiential Learning Resources

Looking to add experiential learning to your law school course but not sure where to start or what to add? There’s a list for that!

As we start another school year, let me take this chance to mention the list of experiential learning resources that I maintain and update on an ongoing basis. You can access it here:


In the list, you’ll find experiential learning resources sorted by topic, including books, articles, simulation ideas and examples, and links to numerous databases that host even more materials.

Don’t see a resources that you are familiar with? Or have an idea that isn’t on the list? Send it to me! I update the list regularly, and I’d love to add your materials so the international community benefits from your ingenuity.

I should highlight especially that the list includes the ABA Guidance Memo on experiential learning. As we enter a year of site visits that will address, among other topics, the revised 303(a)(3) and 304 standards on experiential learning requirements and simulation courses, you’ll want to be familiar with that memo’s recommendations.

Hope to receive your list suggestions soon!

Learning and Teaching – the Progression

I have become interested in progression and ordering lately.  Not so much with chickens and eggs, but more with respect to progressions used in the classroom.  Traditionally, I would start a class with a case and deploy it to open up an area of substantive law, utilizing questions, problems, canons of interpretation, and other cases to explore the meaning of concepts presented in the initial case or topic. The substantive areas depended on the course and ran from appurtenant easements (Property Law), to impeachment by prior untruthful acts (Evidence), to searches incident to lawful arrests (Criminal Procedure). My interest in ordering made me aware of the fact that I approached each class with a duality of teaching and learning.  Teaching usually was first in my progression.  The spotlight was on me as the teacher; I opened and conducted the class and then ended it when time ran out. I had many assumptions.  I assumed student motivation existed; that students started, followed, and ended the class with me; that students had effective practices of adding information to their understanding; and that students readily retrieved the information when needed.

But I wondered what would happen if I reversed the norm of ordering?  What if I placed learning first in the progression, especially in reference to motivation?  Motivation in law school is a lot like a roller coaster (at least it was for me) – it ebbs and flows quite a bit, sometimes within the same day. Motivation is often invisible to the classroom, but weighs heavily on learning.  Early in the first year there is a surfeit of it, and by the third year, well, lets just say there is not as much of it.

This reversal of progression, with learning first, changed a lot for me in the classroom.  In the past year or two, it has allowed for more variation, for greater focus on student improvement, for more experiential “doing” as part of basic courses, and for more direct consideration of student motivation.  For example, in this new progression, students fill out cards explaining what motivates them to learn the most and the least. Students also start each class by indicating where we are in the tapestry of subject matter – something they were used to me doing.  Since experiences often are helpful motivators, many more experiences are blended into the course — students now interview real world participants in law (e.g., police officers in a Criminal Procedure course) or Evidence (trial lawyers) and create short but deep PowerPoint presentations or videos in all courses about a point in the course that was worth further exploration.  These presentations served to recap what people had learned and to offer a combined “outline” of sorts for exam preparation.  Further, classes now end (at the students’ request) with a brief synopsis of what we did, to see if everyone finished around the same place.

In all, I found that focusing on learning generally, and motivation in particular, were very worthwhile.  I enjoyed the new way of guiding the course even more than I did the old.   There were different assumptions made, but I think they were more accurate.  Priorities can inform progression.

Life balance: Our students recognize false promises and are demanding real changes based on a value set.

The millennial worker is an educated consumer armed with details about the global economy. They acquire knowledge that provides factual comparisons of how similar professionals work-life is balanced in other countries versus the many demands of the American lawyer.

In externship classes, students hear about the work life of attorneys in various office settings and explore how their values may merge in the professional world. Even more interesting, the students who gain an international perspective and further enlighten the class. For example, I recently had a student return from an internship in a Sweden.

The student shared:

“I have a desk that can be raised and lowered so I can stand and work. My work phone is an iPhone and there is free lunch here every day! We only work until 4 pm and the attorneys are only required to do 1000 billable hours per year!!! It is all about streamlining and efficiency here.” The student further remarked about the clear message that is sent when a society endorses such a model: We want you to be happy and produce quality work.

As a legal educator, how do you defend the 2100 billable hour or the underfunding and understaffing of government offices? How do we arm our students with grit and resilience for more than the first few years, but a lifetime of sacrifice?

Students interning or externing at law firms or other placements quickly notice the deficient message our American profession endorses. Over and over again, I hear in my classroom students remark about the inadequate time lawyers have to invest in family or pursue individual interests.

So, why are less people deciding to become lawyers? Because, the millennial worker is focused on community values, family, and life balance and our profession continues to pay lip service to such values. The time for reform is now. Reform not just focused on legal education, but the profession as a whole. If we do not readily restructure our value set, work habits, hiring practices, funding sources and curricula, we will lose the next generation of brilliant change makers. Both our profession and society crave such reform, specifically to foster leaders who will pursue justice, uphold government, adhere to the rule of law and build community.

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