Getting from here to there: how are we going to implement Best Practices?

As someone who has been involved in the Best Practices project and its predecessors more or less from the beginning (though my longevity is more impressive than my substantive contributions), I am extraordinarily pleased by the publication of the book and the buzz that is creating. The essentially contemporaneous publication of Best Practices with the Carnegie Foundation report, along with the recently publicized efforts of schools such as Harvard, Stanford, Georgetown and Vanderbilt (to name but a few) to address curricular issues, and the proliferation of conferences (the Crossroads conference at University of South Carolina in November; the Stanford Carnegie conference in December; the AALS meeting in January; and the upcoming conference at Georgia State), has created an environment in which it is more possible to think about thorough-going changes in law school curriculum and pedagogy than ever before.

 But before we get too far ahead of ourselves, it will be important to think carefully about the strategy for implementing some version of the Best Practices recommendations at our law schools.  There are many cautionary signs of which we must be aware.  As powerful as the MacCrate Report was, I think it is fair to say that it had relatively little effect on law school curricula aside from its influence on clinical educators and some modest effect on clinical course content.  (This observation, however, is not to gainsay the Report’s important intellectual contributions, not the least of which was the The Statement of Fundamental Lawyering Skills and Professional Values, which has stood the test of time.) What makes us think we can avoid a similar marginalization of the Best Practices recommendations?

In my experience, most law schools are quite wary of curricular change, let alone intense focus on new pedagogical approaches.  How else to explain the mystifying persistence of a first-year curriculum that continues to exalt common law subjects as if the rise of the regulatory state had never occurred? The decentralized culture of most law school faculties makes it far easier to let every faculty member do his or her own thing (as long as it is done within courses that have traditional titles) than to be willing to make (and enforce) substantive judgments that certain kinds of curricular and pedagogical choices are superior to others.  But while it is understandable that even legal education reformers will need to pick their academic battles, it is difficult to see how fundamental change and paradigm shifts will occur if they require atomistic faculty magically to come together and decide it is in their interest (and within their ability) to change what they are doing.  We may wind up with some nice, even important, pockets of curricular and pedagogical change, but we will not have transformed legal education unless we can develop institutional ways of thinking about change.

I think it would be great if, as we roll out Best Practices to an ever-increasing audience, we gather the stories of (1) what law schools are doing to implement BP; (2) how they have decided to go about doing it (faculty retreats, decanal directives, faculty committees, ad hoc groupings of faculty and alumni, etc.); (3) what has been successful and what has not been; (4) and why.  We may also learn, I suspect, that there is a dynamic quality to the process of institutional change.  We may start out with volunteers and then, at some critical point, declare that there is enough excitement and enough of a consensus to adopt some of the changes on an overall basis.  We also have to be willing to hear criticism of the content  of the Best Practices book (if people are not being critical, they are not taking it seriously) and recognize that implementation of the book’s recommendations will inevitably look different at different schools because of differing contexts.

 Two final thoughts, at least for now. Clinical education, importantly, started out as a movement to reform legal education, as well as reform society (or at least the legal system).  We’ve developed a host of incredible programs, trained several generations of advocates for justice, developed a distinct pedagogy and scholarship, and more–but our reform project has fallen short.  Best Practices provides us with another opportunity to take the educational reform mission seriously.  Second, I firmly believe that most people only really do what they find adds value to their life (here, I am speaking about one’s professional life).  So our task is to persuade the doubters that there is a reason they should care about curriculum and pedagogy and embracing the prinicples of Best Practices is a way to make that part of their work more meaninggul (and fun–and, who knows, even lucrative).  That’s our challenge, as I see it.

I am new to this blogging stuff, so I apologize if the stream-0f-consciousness quality of these comments doesn’t do it for you.  I, and the other Best Practices bloggers, would love to hear from you, whether or not you agree with me/us (indeed, especially if you don’t).

— Bob Dinerstein

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3 Responses

  1. “Second, I firmly believe that most people only really do what they find adds value to their life (here, I am speaking about one’s professional life). So our task is to persuade the doubters that there is a reason they should care about curriculum and pedagogy and embracing the principles of Best Practices is a way to make that part of their work more meaningful (and fun–and, who knows, even lucrative).”

    I think this is a key observation. Until faculty members have some incentive to implement Best Practices, most of us will continue to use the same tried and true textbooks, syllabi, and teaching notes.

    The incentives for law professors encourage the production of scholarship and most law professors know it. At my school, law professors are hired because of their scholarly achievements or potential, not because of their teaching achievements or potential. Being an excellent classroom teacher might get you the “Best Teacher of the Year Award,” –which is voted on by students, not faculty members– but it won’t get you a substantial raise, tenure, or an endowed chair.

    If you want to see what happens when law professors focus their efforts on teaching, take at look at how your clinicians or legal writing professors are treated. (I am assuming that your school allows these folks to use the title “professor.”) When clinicians and legal writing professors are treated as full equals with doctrinal professors, then I think Best Practices will have a chance. Until that time, however, too many law schools have made it clear to the faculty that teaching is not valued the same way that scholarship is valued.

    If we want to change legal education, we will have to change the incentives.

  2. David makes some interesting, and important, points. Law schools sometimes talk a good game re: the value of teaching, but when crunch time arrives, it’s scholarship that counts.

    So, then, the question is what can be done about this incentive structure? Here are a few thoughts:

    1. Produce scholarship about curricular change, pedagogical approaches, and the role of Best Practices (or Carnegie): Although some faculties might rate scholarship about pedagogy/curriculum to be less valuable than doctrinal or critical scholarship, I don’t think we should accept that marginalization without challenge. To the extent some writing about curriculum is “merely” descriptive, the critics might have a point. But there is no reason that curricular scholarship need be so characterized. Clinical writing in the earlier days had a high percentage of such descriptive work, but that hardly characterizes the explosion of exciting clinical scholarship that has taken place in the last 20-25 years.

    2. Get your school to recognize that there may be some advantage to them (market share, reputation, USNWR status, etc.) in being seen as a place in which curricular innovation is occurring. Emphasize the role that clinical teachers can play in contributing to that innovation. If it is good enough for [Harvard, Stanford, etc.] it should be good enough for your school.

    3. Try to build alliances with non-clinical colleagues. If you can find a fellow traveler from the non-clinical side of the street and come up with a series of classes or approaches that appeal to both of you, you might not only come up with something great but you’ve potentially made an ally/friend who can be helpful on other fronts.

    4. Emphasize that since preparing students for “effective and responsible participation in the legal profession” is one of two core goals of legal education under ABA Standard 301 (a) [the other being preparing students for admission to the bar], law schools have to deliver a product that addresses that goal. Who better to do so than clinicians? And, as faculties move increasingly toward hiring faculty with limited or no practice experience (and some without even a law degree), there is a particular premium on taking seriously (and treating seriously) those faculty whose focus is undeniably on this goal–clinical faculty.

    All this, of course, is easier said than done. But the bottom line is that we have a great product, and it is time that the world not only recognized it but understood the role (and value) of those doing the cooking.

    –Bob Dinerstein

  3. This discussion has triggered a number of thoughts, and so here they are.

    I think there are few faculties that set out to reform their law schools’ curricula without being motivated to do so. Those faculties that do seek to make legal education better seem to fall into one of three categories.

    First, there are a few schools that from their founding have made curricular reform part of their mission. CUNY is an excellent example of this. Antioch, now UDC, is another example, and there are a few, very few, other examples. The new University of California at Irvine may also become one of the schools that take curricular reform seriously, but that will largely depend on the vision of the dean, Erwin Chemerinsky, and the founding faculty. At schools that try to take making law school better a serious proposition from their founding, the faculty are on board (at least to some extent), and new faculty join understanding that there is an emphasis on this.

    The second, much larger group of schools, are those who have a dean, or series of deans, that have some type of vision, or least a commitment to a process to craft a vision, to improve legal education. These deans, who make up a handful of deans at any one time, are to some extent visionaries. They are deans who actually are committed to trying to improve legal education. That requires a dean to be committed to curricular reform, and if the reform is to succeed, to reward faculty who engage in the process wholeheartedly. At the present time, there are few deans doing this. As Bob and David point out, without this, real reform does not stand much chance.

    The third group are the “me too” schools. These schools engage in whatever reform seems to be the “hot thing” because they do not want to be left behind. The clinical legal education programs at many law school were started as “me too” programs, especially with the CLEPR and then the Department of Education through Title IX were funding clinics.

    So, what is to be done?

    It seems that inroads may be able to be made in three areas.

    First, in hiring new deans, those of us committed to curricular reform can try to urge our universities to hire deans who see that as part of their vision for our law schools. That occurred at when Vanderbilt hired Ed Rubin.

    Second, the Best Practices Blog can be set up to identify the successes that Bob mentions. By identifying schools that are moving forward, perhaps this Blog can urge some schools to become “me too” schools. Now that a few highly ranked law schools have engaged in very modest curricular reform, perhaps it can become the “hot thing.” Imagine a time when prospective law students factor a meaningful, 21st Century, legal education into their equation in picking a law school over one that still grounded in the 19th Century methodology.

    Third, and no less important, we can try to implement the recommendations identified in Best Practices that apply to our own courses. In classroom courses, providing formative as well as summative evaluations can yield great results in terms of student learning and engagement in the material. Using short quizzes in classroom classes is one way to provide formative evaluations, especially if the quiz is quickly reviewed after it is given. In terms of the summative (final exam) evaluation, using a take home exam or an exam with time limits that are very generous can permit students to be judged on their analysis and not HOW QUICKLY they can write.

    In terms of the third recommendation, it is true that there may be no external reward (read pay raise here) for anyone improving his or her teaching, especially when it takes more time and effort and that could be spent on writing (where the real pay raises usually come). In this regard, improving our own teaching and courses is like the myriad of other “good things” that we all do that take some extra effort without any visible reward to us. For those things, like for our own teaching, the rewards are visited on our students, who have a better learning experience, and less tangibly on ourselves – knowing that we are trying to do our best rather than just enough to get by.

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