Centering Justice in Legal Education Reform Discourse

Thanks to Mary Lynch for inviting me to post on this blog about my essay, Deep Critique and Democratic Lawyering in Clinical Practice, which was published in February by California Law Review. Over the course of my work on the essay over a few years, I have come to ask three main questions:

(1) How does the justice-seeking mission of clinical education persist in the face of the rapid expansion of experiential education and the imminent retirement of many of the founders of modern clinical education?

(2) Is there a progressive clinical response to the crisis of legal education in the aftermath of the great recession of 2008?

(3) How can legal educators preserve the public interest, justice-seeking values of the legal profession in the face of contraction, commodification, automation, and outsourcing?

The questions have gotten harder to answer as time has passed, as the post-Carnegie period of experiential expansion fell way to the economic crisis and then to the cyclical and structural breakdown of the market for legal services and the subsequent collapse of the markets for post-graduate employment and law school admissions. Initially, during the short expansionary period, my thought was that justice-oriented clinicians had to engage in the pedagogical excavation of their own work in order to defend it and to claim a share of the resources being allocated by law school administrators. The standard litany of clinical skills is incomplete and tends to favor an attenuated form of clinical practice that prevents clinics from participating in urgent struggles for social and economic justice ongoing in all of our communities. Both non-strategic individual service and private business-oriented clinical models take clinics out of community struggle and place them in service of a conservative political posture that has been maintained by law schools for many years. These approaches also subdue and suppress the justice aspirations of our students.

The necessity for lawyers to think structurally, suggested by Gary Blasi and further supported by Nisha Agarwal and Jocelyn Simonson in their survey of critical theoretical work, suggested to me the idea of “deep critique.” We want our students to think structurally, but how can we begin to think with them outside of what seems currently possible? As we see repeatedly in many areas of struggle, from police

devin allen

Photo credit: Devin Allen

violence to low-wage worker exploitation, liberal legalism doesn’t get us very far. We can teach our students that law is incomplete and inadequate as the sole response to various social crises. But how can we begin to consider responses outside of the liberal legal imaginary? In my experience, organizers have been the ones who have helped me to see both the value of the legal tools that we train our students to use and their use in moving us toward new worlds. I wanted to capture this quality of deep structural thinking that we aspire to develop with our students, hence, “deep critique.”

The second feature of complex, justice-seeking clinical practice that I thought worth bringing to the surface was easier to describe because of the prior synthetic work of Ascanio Piomelli. Piomelli draws from a wide range of poverty lawyering and critical theoretical sources to define a form that he calls “Democratic Lawyering.” Many clinicians have thought hard about the role of the lawyer in community. Democratic lawyering has stuck with me because of its central animating idea that lawyers may serve to support grassroots collectives in politics and to help them convert their political ideals and aspirations into political struggle in various realms, including protest, electoral politics, and policy and legislation. This was a second quality encompassing a fairly broad skill set that I believe should be added to the list of teaching goals to which legal educators gravitate.

The economic crisis and the subsequent challenges to the legal profession and legal education necessitate further consideration. Although clinicians have a great deal more security now than at any time in the past and clinics are seen as core curricular offerings at many law schools, the perception that clinical education is an expensive luxury is entrenched within legal education, especially when budgets are being shrunk. Bob Kuehn has taken this argument apart. However, it seems essential to me that clinicians go further and articulate an affirmative vision of reform that centers entrenched social problems and clinical practice as the core generators of contemporary legal education. Scholars such as William Henderson and Brian Tamanaha have made a significant impact on the discourse with their reform proposals, which largely make clinical education marginal and, to varying degrees, accept the breakdown of the legal profession as a given. Neither of their reform visions contemplate how legal education might preserve and advance the public, justice-seeking values of the profession. There is little contemplation in these largely neoliberal approaches to higher education of a professional exercising independent judgment in the performance of their duties to clients and the public. In an otherwise highly insightful book, progressive scholar Robin West views clinical education as actually setting back the agenda of critical legal analysis. Clinicians’ views are often dismissed as being focused on status; we are, therefore, burdened with an extra responsibility to lay an intellectual foundation for the centering of clinical practice in legal education.

My essay flags these challenges in the legal education reform discourse, without providing a comprehensive response. In many ways, it is a call to legal educators to begin to articulate reform visions from the standpoint of our client communities and our idealistic students. In the context of unprecedented social movement activity in the United States, it is incumbent on teachers to think creatively about how we might mobilize our educational institutions to support democratic engagement  and to think structurally outside of the box of liberal legalism. Legal educators must consider how we train law students and contribute to the construction of our evolving profession, one not solely defined by economic efficiency, but instead by core commitments to justice and the public good.

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Legal Education & Civility in the Legal Profession

A recurrent theme in current critiques of legal education is the need to develop lawyers with interpersonal, intrapersonal, and leadership knowledge, skills and values, as well as the traditional analytical skills and doctrinal knowledge. (A significant portion of Chapter 6, Teaching the Newly Essential Knowledge, Skills, and Values in a Changing World in the recent volume Building on Best Practices: Transforming Education in a Changing World (Lexis 2015) is devoted to the what and how of teaching such topics.)

Opportunities to reflect on this theme abounded in early October, when I had the privilege of attending the Civility Promise Continuing Legal Education seminar in Sovana, a small hill town in southern Tuscany, Italy. Sponsored by Seattle University Law School. and Robert’s Fund, the seminar brought together fifteen attorney participants from diverse practice backgrounds. They included a retired corporate attorney and managing partner of what is now a leading global law firm, a retired trial court judge, and lawyers with criminal or civil litigation, or transactional practices in both private and government settings.

Conceived by Paula Lustbader, teacher extraordinaire and emeritus professor of law at Seattle U. in collaboration with Italian artist Sergio Tamassia, the seminar was co-taught by two exceptionally skilled presenters: Tim Jaasko-Fisher, Senior Director of Curriculum and Programming for Robert’s Fund, formerly Assistant Attorney General and then Director of the University of Washington Law School Court Improvement Training Academy, and Craig Sims, Chief of the Criminal Division of the Seattle City Attorney’s Office.

The seminar identifies three pillars of civility: consciousness, community, and creativity. After fostering each pillar within the group in a brilliantly executed mix of didactic, reflective, and creativity-facilitating teaching methods, participants are challenged to take their learning into the profession.

Each participant was drawn to the seminar for their own personal reasons and several shared compelling experiences — the opposing counsel whose business model was the shake down, the ultimately unsuccessful malpractice suit based on the theory that an attorney approaching a case with a collaborative mindset violated her duty to her client, the former colleague who cracked under pressure and – the ultimate case of incivility — murdered his opposing counsel. And all bemoaned the all-too-common misconception that the adversary system is about behaving uncivilly, rather than developing and presenting the most compelling arguments on the merits.

Concerns over incivility have led some jurisdictions to adopt mandatory civility codes and help inspire the burgeoning mindfulness movement. Like the profession, many law schools are pursuing mindfulness for multiple reasons, including encouraging civility. Whether these efforts will be sufficient to effect widespread change in individual attorney behavior and the culture of the legal profession remains to be seen. But the Civility Promise seminar provided both incentive and tools for change. We can also hope that it will inspire similar efforts in legal education.

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?

Gender and Lawyers’ Worklives

As we think about how to improve legal education, it’s always helpful to understand  our students, their careers, and what they value.   UW Law reference librarian Mary Whisner shared this item, that I missed when it initially came out:

Harvard Study: Women Lawyers Work More Than Men,

Bloomberg BNA Big Law Business, May 12, 2015

Harvard Law School’s Center on the Legal Profession released the results of a widespread survey of its graduates which suggests women work more hours on average than men, among other potentially myth-busting findings.

Through a survey of HLS graduates from the classes of 1975, 1985, 1995 and 2000 and other research, it provides a detailed portrait of the gender gap within the legal profession, including all the ways women have advanced or failed to advance.

. . .

https://bol.bna.com/harvard-study-women-lawyers-work-more-than-men/

The study also finds the women graduates satisfied  with the substance of their work, but dissatisfied with their compensation, while the reverse is true for men.

The full study (86 pp.) is David B. Wilkins et al., The Women and Men of Harvard Law School: Preliminary Results from the HLS Career Study (2015).

Would these findings about Harvard Law grads would hold true for lawyers generally.  If so, are there any implications for legal education?

Here’s one speculation:  Perhaps men experience more cultural push towards financial security and success in the form of work in Big Law. They might also experience less cultural encouragement toward emotional self-awareness, introspection about purpose in life,  and a service orientation. If so, the result might be that more men focus on external motivations and pursue the Big Law path,  even when it’s a bad fit with their interests, skills and values. They then find themselves less satisfied with the substance of their work. (And, given gender myths about women’s lesser commitment to the workforce, the men might be able to meet expectations with fewer hours.)  If so, legal education would be well advised to improve efforts to help students develop their professional identify, focusing both  on developing students understanding of lawyers work in different settings, and on students’ own talents, interests and values.

Another speculation:  Perhaps women tend to be less confident about the quality of their work and log more hours as a result.  Legal education could help them appreciate their own talents and skill level.

Other thoughts?

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.

Inner Development, Community, Social Justice (Concurrent Session, AALS Conference on Clinical Legal Education)

Last, but not least, in this series highlighting lessons from experts in other disciplines relevant to how to navigate the chaotic “new normal”  in legal education: Thursday’s concurrent session organized by Tennessee’s Paulette Williams:  “A Commitment to Inner Development: Connecting the “New Normal” with Clinics’ Social Justice Mission”.

The session brought  Edward Groody and Timothy Dempsey from the Community Building Institute in Tennessee.  The Institute helps social service and criminal justice organizations become more effective by training participants in community building practices.  Taking an evidence-based approach built on motivational interviewing, trauma-informed care, and pro-social supports, community building is a “highly experiential process that helps participants remove barriers to communication and unlearn unproductive attitudes and behaviors.”

Groody began the session with a detailed overview of a four-stage process for building community:

  • Pseudo-community
  • Chaos
  • Emptying/Letting Go
  • Community

That process adds an important step — emptying/letting go — to Bruce Tuckman’s familiar “forming, storming, norming, performing” model of group formation.  My own interpretation of this additional,  third step is that it provides space for  participants to recognize,  and learn skills to address, the emotional issues that so often get in the way of honest connection with others.

Dempsey then shared powerful stories of how that process helps ex-offenders with post-prison re-entry,  allowing them to move past behavioral responses that may have seemed — and perhaps were — functional in their previous lives, but would block their efforts to move forward.   Or, to put it another way, this step acknowledges that in order to take advantage of education or employment opportunities, people need to let go of fears, resentments or trauma.  This is challenging work that is the foundation of many spiritual traditions, but can help build strong connections with others.

Time constraints prevented Paulette Williams from speaking in detail about how she makes use of this process in her clinical teaching work.  I hope she finds other forums for sharing those experiences and insights.

The insights of this community building process struck me as relevant not only to social justice and clinical legal education work, but also to faculty interactions within our law schools.  From another time and place, I well remember a year when every faculty meeting resulted in controversy, usually about something relatively minor that seemed to be a proxy for other, larger, but unacknowledged issues festering beneath the surface.    I suspect that many faculties are experiencing something similar as they operate  in the  current climate of uncertainty and change, too often getting stuck in the fear those conditions foster.  It’s  difficult for me to imagine applying this model in the typical law school environment.  But successfully moving through the “emptying/letting go” phase, as individuals and a group,  could be oh, so helpful!

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