The Wall Remains: Finkelstein’s “Barriers to Entry”

In a recent article in the Journal of Experiential Learning, Jay Gary Finkelstein describes the obstacles he encountered attempting to convince law schools to replicate his transactional course, International Business Negotiations. The article, Barriers to Entry: Putting it Together, School by School, tells a familiar tale: law schools remain resistant to curriculum change, legal academia continues to underperform in skills training, and experiential offerings—though on the rise overall after ABA Standard 303’s increased experiential learning requirement—still lag in the area of transactional training. This is a saga most everyone tracking experiential learning over the last few years is well-acquainted with.

But Finkelstein’s version of the story embodies an element that finds the spotlight less frequently: this delay in growth persists despite the plethora of tried and true experiential course offerings available. It often isn’t a question of availability or capability; it’s a question of resource allocation. In Barriers to Entry, Finkelstein describes how, for the last approximately eight years, he contacted various law schools in an effort to help them replicate his class. The reaction of the first two schools reflects another aspect of the problem: they essentially ignored him. “There was no response whatsoever; it was as if the communications had entered a black hole; . . . there was not even a ‘thank you but not interested’ rejection from either law school.”  In the remainder of his article, Finkelstein describes how, even once he began receiving replies, he encountered a persistent series of difficulties in convincing schools to adopt the course.

In some ways, those difficulties are not surprising. Law schools are often contacted by third parties offering to do or sell or say something. The course adoption process at law schools is often lengthy and fairly described as labyrinthine even among those already dwelling within its walls. And there are often many more adjuncts seeking to teach than there are positions available.

But Finkelstein’s experience, again, is striking: why did a successful practitioner pitching a course already adopted at well-known law schools where it received rave student reviews meet such resistance? Finkelstein’s course did not have a licensing fee. As a transactional course, it was not in an area that most law schools already had a wealth of offerings. Finkelstein’s credentials even passed the litmus test that too many law schools use in considering who can teach there (Finkelstein has a J.D. from Harvard and is a partner at DLA Piper).

Fortunately, the story in Barriers to Entry has a happy ending: the course is now taught at over twenty-five law schools internationally. As its availability continues to expand, Finkelstein has enlisted or trained additional individuals (both adjuncts and full-time faculty) to teach it. He has also co-authored a coursebook for the class. And he even eventually convinced one of the two schools he first contacted (and that ignored him) to adopt the course.

But is this ending just the result of Finkelstein’s persistence? Or also legal academia’s greater acceptance of experiential learning and the ways practitioners can enrich a law school’s curriculum? Hopefully both. Because as Barriers to Entry reminds us, the wall to experiential learning remains, and one of the many ways to scale it is through the joint efforts and open minds of practitioners and law schools working together.

And Professor Finkelstein: feel free to email me sometime—I promise to reply.

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Looking for experiential learning resources for your class? Try this list: https://goo.gl/59KlUP

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