ABA Commission on Future of the Profession & ABA Vote on Bar Passage Proposal

During the midyear meeting of the the American Bar Association  (ABA) held last week in Miami, several issues were considered which relate to legal education.  I will discuss two of those issues here: the creation of the Commission on the Future of Legal Education and the proposed changes to accreditation standards concerning bar passage requirements.

First, the ABA Board of Governors created a new ABA “Commission on the Future of Legal Education”, which will become operational in August.  Championed by incoming president, Hilarie Bass, the creation of the Commission was just one component of a proposal  to restructure the power and responsibilities afforded the Section of Legal Education and Admissions to the Bar . President-elect Bass believes that the ABA’s “lack of response to the constant barrage of grievances about our system of legal education is undoubtedly impacting membership and also preventing top students from entering law school.” Bass cites “low bar passage rates, excessive law student debt, the depressed job market for new lawyers and the lack of value that employers place on the capabilities of recent law graduates” as reasons to restructure.  Although the Board of Governors voted to create the commission, it did not “sign off on the extensive slate of responsibilities that the commission would have under the original proposal from ABA president-elect Hilarie Bass.

Earlier this month, Karen Sloan’s February 1st article in the National Law Journal helpfully outlined the arguments for and against the Bass proposal, including suggestions that the proposal was made too precipitously.  Sloan also notes those who  applauded the need for reform quoting SALT co-president Denise Roy about the need for reform in legal education and bar licensing,

Ms. Bass’s proposal promises to do just that, and SALT supports the effort. Of course, its success will depend on naming a commission whose members are high­quality creative experts who will consider a wide range of views from both within and outside the academy.”

Clinical Legal Education Association co-presidents Beth Schwartz and C.Benjie Louis agreed that there are challenges with the current structure and are also quoted in the February 1st article:

The Council has often ignored the comments of members of the law school community when considering changes in ABA accreditation standards.  The Council also has failed to provide leadership or a forum for discussing the challenges and opportunities of legal education and bar licensing.”

This past Tuesday, those of us who are members of the Section on Legal Education and Admission to the Bar, received an e-mail from the Chair Greg Murphy reporting  that

“the ABA Board of Governors passed a motion last week authorizing the creation of a new ABA Commission on the Future of Legal Education, which will become operational in August. The Board did not address President-Elect Bass’s proposal to change the name of the Section of Legal Education and Admissions to the Bar, the functions of the Section, or the funding of the Commission on the Future of Legal Education. I have invited President-Elect Bass to come to the Council’s March meeting where these matters will be the subject of collaborative discussion. The members of the Section and other stakeholders will be kept advised, as appropriate.”

So, stay tuned!

The second issue important to legal education concerned the ABA House of Delegates vote on proposed revisions to Standard 316 concerning bar passage.  The revisions would eliminate the old more nuanced standard and replace it with the following ultimatum:

Standard 316. BAR PASSAGE At least 75 percent of a law school’s graduates in a calendar year who sat for a bar examination must have passed a bar examination administered within two years of their date of graduation.

Proponents and opponents of this proposed revision make good points. For example, consider Law School Transparency’s view that the present toothless standard (no school has ever been found to be out of compliance with 316) has permitted many schools to exploit students by enrolling some with LSAT numbers that predict failure. Equally persuasive are the views of those, such as the National Black Law Students Association  and SALT who oppose the revision on grounds that the proposal failed to address racial inequities in the law school admissions process and legal education.  In the ABA law Journal, Stephanie Francis Ward described data submitted for the initial hearing in March of 2016 by William Patton, a professor emeritus at Whittier Law School, which found that 33.4 percent of black students in California and 29.8 percent of the state’s Hispanic law students attend the five ABA-accredited law schools that would be most at risk of violating the proposed revision.

Meanwhile, CLEA called its nationwide membership  to action to oppose the proposed revision by  contacting their individual state delegates to the House.  CLEA’s formal statement in opposition acknowledges the ABA’s responsibility to discourage predatory practices but also emphasizes the need for more understanding of the diversity consequences.  The CLEA and SALT  opposition also makes crucial points about the danger of our using the current bar exam as the gatekeeper for the profession. As the SALT comment notes, “we continue to have fundamental concerns about the limitations of the current system of licensing lawyers through the bar exam and the unfortunate ways in which Standard 316 affects law school admissions and pedagogy.

In my opinion, the bright-line test which the proposed revision creates would upend the balance of legal education in a harmful way. First, there should be a deeper exploration of the consequences to the diversity of law schools and  our profession before revising. This should be done in conjunction with those committed  to remedying the embarrassing  fact that our profession is so much whiter than other professions.   Our profession is almost 90% white and has decreased in diversity between  2000 and 2010 according to ABA lawyer demographics.  Second, this proposal is likely to be  harmful to the interest of current and prospective students in proper preparation for  current practice in the 21st century economy.  One glimpse at the detailed survey work of the Foundations for Practice project demonstrates the plethora of skills which legal employers in this economy desire and which the bar exam does not even begin to test.  Third, imposition of this standard now will likely harm future students and the development of innovation in law schools for those students.  This is a time when all of us entrusted with the professional development of lawyers need to be thinking strategically about what lawyers will be doing 10 to 40  years from now. We have to be concerned about what a  future in a reduced labor economy – with artificial intelligence infused throughout it – means for the role of lawyers and the development of law students.  Finally,  making a bright-line test for only one factor – bar passage rate – and not for employment rate, skills and clinical opportunities, or other significant indicators, will reify a bar licensing process that is deeply flawed.  

In short, I agree with the ABA House vote to send the proposal back to the Council of the Section on Legal Education and Admission to the Bar for more pondering.  There must be a better way to discourage predatory behaviors by certain law schools without potentially destroying much that is good and promising in legal education.

AALS Statement on Executive Order Restricting Entry to U.S.A.

Statement by the AALS Executive Committee on the Executive Order

Restricting U.S. Entry for Certain Foreign Nationals

Washington, D.C. (January 30, 2017) – The following is a statement by the members of the Association of American Law Schools (AALS) Executive Committee:

Law schools and universities in the United States are greatly enriched by the presence of international students and scholars from around the world. The Association of American Law Schools is thus deeply concerned by the Executive Order issued by President Donald Trump that restricts the ability of students and scholars who lawfully have the right to come to the United States from being able to enter or remain in our country. The Executive Order is inconsistent with our nation’s tradition of welcoming talented individuals from all nations to study and teach in the United States.

We commend the lawyers, including a number of law faculty, law students, and courts, who responded immediately to represent these individuals and to uphold the rule of law. The AALS urges the Trump administration to withdraw this Executive Order as inconsistent with freedom of inquiry and with basic principles of law.

 

I applaud the AALS for issuing this statement today. As a professional association, its first obligation is to the students and scholars affected by  the order as well as to the effect on learning in law schools and universities generally.

 

A Cool Course Assignment and A Scholarship Opportunity

This post suggests that you might want to assign your students to interview a lawyer about an actual case and it provides some materials you could adapt if you are interested.  I realize that it is probably too late for you to incorporate this into your courses this semester, but you might want to do so in the future.

This idea grew out of a symposium I organized at the University of Missouri Law School about improving negotiation theory.  Two of the speakers, David Matz and Adrian Borbély, wrote an article arguing that too little negotiation theory is based on detailed analyses of actual negotiations.  I wrote a short essay agreeing with them and suggesting, among other things, that academics interview negotiators to collect and analyze detailed accounts.  Then it occurred to me that law students could do this as a course assignments.  I am particularly interested in research about negotiation, though you could use the same process to do interviews about virtually any aspect of legal practice.

Although this assignment might seem particularly appropriate for courses focusing on practical skills, it could be valuable in one focusing more on legal doctrine.  As an illustration, Stewart Macaulay’s classic article, Non-Contractual Relations in Business: A Preliminary Study, was based on his interviews with automobile executives who helped him understand how real-world business often deviated from what Macaulay taught in his contracts class.

You could require each student to interview a lawyer for up to an hour about a recent negotiation.  You could set the parameters of the assignment in terms of the types of cases, questions to ask lawyers, and content of the summaries.  These assignments could be fairly short papers that count for a small portion of a grade or longer papers that count for more.  Indeed, if you want to make this a bigger part of students’ learning, you could require students to do several interviews.

This assignment would have several benefits.  First, it would give students experience learning about actual cases that lawyers have handled, advancing the goal of preparing students for real-world practice.  Second, students would get a chance to practice interviewing, a difficult and critically-important generic skill.  Lawyers regularly interview people about sensitive matters and must develop rapport to get the candid information they need.  Third, it would give students a chance to practice protecting confidentiality.  Students would need to assure the lawyers they interview that they would not disclose certain matters, and then students would convey key information in their assignments while avoiding disclosure of unauthorized information.

Using Student Interviews for Your Research

Although most faculty would do this purely as a course assignment, you might want to use these papers as the basis for your own scholarship.  Many law faculty are curious about how people act in real-life legal situations, as distinct from principles from black letter law, theoretical analyses, anecdotes, “common sense,” etc.  They are tempted to do some empirical research, which they often assume requires surveys with large samples.  Not so.

As explained in my post, What Me – A Social Scientist?, this is a common misconception.  Moreover, doing good survey research is much, much harder than most novices realize – and is likely to produce less useful data than they expect.  The good news is that you can do very valuable research involving relatively small samples of semi-structured interviews like the ones described above.

If you assign students to conduct these interviews solely as a class assignment, presumably you would not need to get this approved by the Institutional Review Board (IRB) at your school because it would not be considered as research.  Of course, if you do plan to use these papers for your research, you would need IRB approval.  If in doubt, check with your IRB.

I described these ideas in more detail in a post on the Indisputably blog.  In a later post, I provided documents you could adapt for this assignment.  These documents include the assignment itself, guidance for students in conducting and writing up interviews, and model solicitation letters and should be useful in getting IRB approval.  Although you shouldn’t need IRB approval if this is purely a course assignment, these documents are useful in any case because they reflect good, ethical research practice.

 

 

 

 

 

 

 

 

 

 

PUBLIC OPPOSITION TO JEFF SESSIONS RESULTS IN AN OPEN RECORDS REQUEST

Along with 1,400 other law professors, I signed a letter opposing the nomination of Jeff Sessions for Attorney General of the United States. As a law professor, I signed this letter because of my concerns about maintaining the integrity of the legal system.

Shortly after the law professors’ letter was published, my university counsel’s office got an Open Records Act request seeking my emails.

The request, from a reporter working for a conservative political publication, sought: “a copy of each email (inbound, outbound, deleted, or double deleted) for the university email accounts of Andrea A. Curcio and [a colleague who also signed the letter] from the dates of December 15, 2016, to and including January 3, 2017, which includes any of the keywords “Sessions,” or “Jeff Sessions” or “Attorney General.””

A similar request was sent to university counsel for law professor signatories working at other public institutions.

Open records requests are a key to governmental transparency. Being personally subjected to one is unnerving.

How do you avoid such a request if you work at a public law school? You stay silent. Non-involvement with anything in the least bit controversial helps protect you from the possibility that anyone will ever ask to see the content of your emails.

I have often asked myself the theoretical question: if I had lived in Nazi Germany, or in the McCarthy era, would I have remained silent or would I have taken the risk and spoken up. That question is no longer theoretical.

Celebrating Martin Luther King, Jr. Day reminds us of the courage of those who stood up for what they believed was right. Today we again have a very visible choice about whether to step off the curb or to let fear silence us.

 

Do You Want to Engage Students More in Class? Consider Prohibiting Laptops.

Pace Law Professor Darren Rosenblum published an op-ed in the New York Times describing his experiences with and without laptops in his classroom.

He wrote, “When I started teaching, I assumed my ‘fun’ class, sexuality and the law, full of contemporary controversy, would prove gripping to the students.  One day, I provoked them with a point against marriage equality, and the response was a slew of laptops staring back.  The screens seemed to block our classroom connection.”

He then described what probably all instructors know these days, that many students are distracted by their online world and don’t pay attention in class.  He reported observing a colleague’s class, where he could see that many students were shopping online or surfing Facebook.  His article cites research consistent with these concerns.

After banning the laptops, he found that, “With constant eye contact, I could see and feel when they understood me, and when they did not.  Energized by the connection, we moved faster, further and deeper into the material.”

I prohibited laptops in my classes and found that students were much more engaged.  Banning laptops also reduced distraction by nearby classmates as well as my own distraction watching student clack away, obviously not related to the class discussion.  When I mentioned my policy at a faculty meeting, several colleagues enthusiastically endorsed this idea based on their own positive experiences.

About 25% of syllabi posted on the Dispute Resolution Resources in Legal Education website either prohibit or restrict use of laptops.

If you prohibit laptops, some students may resist, coming up with all sorts of cockamamie reasons why using laptops really promote their learning.  Although there can be some merit to these pleas, I think we all knew that they mostly wanted the freedom to mentally check out of class without detection.  Fortunately, most students accepted this policy without complaint, especially if it was presented decisively.  Indeed, I think that some students actually were relieved to be protected from this addictive form of distraction.  It probably also helps if a critical mass of colleagues at your school have the same policy so that it doesn’t seem as if you are just a single mean old Luddite when all your colleagues allow laptops.

If you are going to ban laptops, you should also prohibit use of cell phones except in emergency.  You probably have had the experience of seeing students appear to be fascinated by their laps as they check their phones beneath their desks.  I told students that they should let me know if they had a particular reason why they needed to check their phones.  For example, one student’s wife was expecting to deliver a baby and he wanted to know if he needed to rush to the hospital.

Here’s the language I used in my syllabus (including the following link): “You may not use laptop computers in class.  After many years of allowing students to use laptops in class, I decided to prohibit them because they distract students too much.  You may not use smartphones or other electronic devices in class except if you may have to deal with an urgent matter (such as a medical situation of a relative).  If you anticipate needing to deal with an urgent matter, please let me know at the beginning of class.”

It also helps if you provide students with some of the material of your presentations so that they don’t need to madly transcribe all your words of wisdom.  Even before I banned laptops, I posted on TWEN outlines of the class material for the day, which I think that also helped students focus on the class discussion.  Part of the trick is providing enough detail so that students have confidence that your notes provide the basic information they need but not providing so much that they feel they can get all they need just by reading your notes without paying attention in class.

Have you banned (or restricted) laptop and/or cell phone use in your class?  If so, what changes, if any, did you observe?

Best Legal Education Articles of 2016

At Tax Prof Blog, Scott Fruehwald has posted the Best Legal Education Articles for 2016. You can find it here. Cognitive science themes play a prominent role in the list, as well as interesting articles on professional formation by Louis Bilionis and assessment by Adam Lamparello. On the topic of professional formation, I would add Neil Hamilton and Jerry Organ’s article Thirty Reflection Questions to Help Each Student Find Meaningful Employment and Develop an Integrated Professional Identity. Add your “best of 2016” in the comments.

Teaching Self Reflection

Self reflection is a valuable skill which should be taught across the law school curriculum.   Engaging in self reflection will serve students’ life long personal and professional development.  While self reflection is perhaps not the first topic that comes to mind when thinking  of a typical law school curriculum,  it may be one of the most important, as self reflection aids learning in all areas.  To reflect, we process information, synthesizing and evaluating data with the hope of translating what we’ve learned about ourselves to contexts beyond the original situation in which we learned.  That is what lawyers do with every new client or situation.   Shouldn’t we teach this important skill alongside others fundamental to lawyering?

Students may not have thought concretely and specifically about their learning processes prior to entering law school. They may view their academic successes and failures as isolated and unrelated events.  However, upon reflection there likely are threads which run through those successes and failures which could prove instrumental to further development.  Law school requires higher order thinking, which may not have been required of students before.  To allow students to develop these abilities, in addition to teaching black letter law, we must also teach students to reflect:  on their work to enhance its meaning and on their experiences to encourage insight and complex learning.

While self reelection might appear to be an inward and solitary process, that is not always true. Reflection can be enhanced by thinking about our learning with others and the classroom is a perfect place to introduce it to students.  In fact, the ABA has opined in relation to revised standard 302(d) that self evaluation may be one of the “[o]ther professional skills needed for competent and ethical participation as a member of the legal profession”. While clinicians have been teaching self evaluation and reflection for some time, it is a skill which can be taught and practiced in any law school classroom.

Some easy ways to introduce self reflection into a class include:

  1.  Ask students to complete a self reflection of the content of their graded work–what did they do well, what do they plan to improve upon, etc.  This helps students to actively internalize their role in the learning process, rather than being passive recipients of grades and information.
  2. Have students reflect on the process of doing the work itself– what came easily, what did they struggle with, and why.  This allows students to become better learners as they implement changes in response to their own observations. This can be done in writing or orally in class if time permits.  If your class is too big to allow every student to share their reflections, have students volunteer or randomly select a sampling of students.  This way students can also appreciate others students’ learning process.
  3. After students receive a graded assignment back and have had time to review it, have students comment on something they have now “learned”, after looking back at their work.  To the extent a common thread appears in the students’ reflections, the teacher can identify topics with which students may have collectively struggled.  The teacher can model self reflection by commenting on how their teaching of those topics could be adapted in the future.  Even better, the teacher should continue to reflect and make appropriate changes as needed.
  4. One of my favorites:   I ask my students to identify questions they wish they had asked me before an assignment was due. This helps students once again recognize that they are not merely passive recipients of information, but rather, that they can and should control the process and seek guidance when appropriate. If they recognize this, it will allow them to ask for help and take charge of their own learning more appropriately in the future.
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