Clinical Education in Tumultuous times

Having recently returned from the AALS Clinical Conference, which was focused on engaging in clinical legal education during tumultuous times, I’ve had a thought percolating, one about which there was little occasion to address during the conference:  how do we manage, balance, and relate our own personal political activities “in these times” vis a vis our students?

Do we inform our students of our “after hours” activities? Invite them to join us? Encourage them to engage in their own, if they can find the extra time, given their studies and case work? Encourage them to find the time?

Or would this be a mistake? Might this type of encouragement alienate our students who don’t agree with our own political views and accompanying activity, making those students uncomfortable in the clinic we operate?

How have the rest of you out there been handling this?

Call for Papers – The Ethics of Legal Education

Call for Papers

The Ethics of Legal Education

AALS Section on Professional Responsibility

2018 AALS Annual Meeting

San Diego, CA

January 3-6, 2018

 

The Section on Professional Responsibility is pleased to announce a Call for Papers for the Section’s 2018 Program: The Ethics of Legal Education. In addition to featuring invited speakers (Professor Joan Howarth, Dean Andrew Perlman, and Dean Daniel Rodriguez), we will select up to two speakers from this call.

This panel will explore the ethical challenges U.S. law schools have faced during the past decade and will consider the path ahead. Speakers will address various subjects that may include: alternative and accelerated degree programs, for-profit law schools, accreditation decisions, admissions and scholarship practices, employment issues, and litigation filed by students and alumni against law schools. The panel will explore the factors that have influenced ethical and values-based decision-making, leadership challenges, and how law school leaders’ ethics and values in this area may influence the future of the legal education and the legal profession.

Participants need not write a paper, but will have the option to publish a paper if they choose to do so.

Any member of the full-time faculty of an AALS member school may submit a 500-1500 word proposal by August 15, 2017 to Renee Knake at rknake@central.uh.edu. The title of the email submission should read: Submission – 2018 AALS Section on Professional Responsibility.

The Planning Committee for the Annual Meeting of the Section on Professional Responsibility will review all submissions and select up to two papers by September 1, 2017. Please note that all faculty members presenting at the program are responsible for paying their own annual meeting registration fee and travel expenses.

Any questions should be directed to 2018 Program Co-chairs Renee Knake at rknake@central.uh.edu or Paula Schaefer at paula.schaefer@tennessee.edu.

The Potential Adjunctification of Law School Faculties

Under proposed ABA Standard 403, future law schools could have only a handful of full-time faculty members.  If those full-time faculty members teach the first year curriculum, the proposed Standard allows for upper level classes to be taught entirely by adjunct faculty as long as the law school ensures the adjunct faculty effectively teach their assigned courses.

As a practical matter, does the proposed standard mean most law schools will become institutions staffed largely by adjuncts?  Probably not.  However, it may mean that for-profit law schools will staff their upper level classes almost entirely with adjunct faculty.

For-profit schools – the beneficiaries of no restrictions on adjunct teaching

If legal education follows the trends seen in undergraduate institutions, for-profit schools are the schools most likely to take advantage of the proposed standard.  A study authored by Phillip W. Magness found that 93% of faculty at for-profit universities are part-time faculty.  This compares with 29.5% part-time faculty at four year public schools, 42% part-time faculty at four year private schools, and 65% part-time faculty at two year non-profit colleges.

At a time when for-profit law schools are facing increased scrutiny for bar pass rates, should the Council on Legal Education be considering a rule change that enables those schools to rely heavily on adjunct faculty?  What impact will an adjunct faculty have on student learning in core doctrinal courses?  These questions should be addressed.

Justification for changing Standard 403 to allow more adjunct teaching

Unquestionably, adjunct faculty serve important roles in law schools.  Practicing attorneys and judges bring a depth of experience into the classroom that full-time faculty may not have.   However, the current Standard already allows for one-third of the upper level classes to be taught by adjuncts.  Why is there a need to allow for more adjunct teaching?

The justification, as stated in the Council’s March 24, 2017 memo, is that elimination of the full-time faculty requirements allows for innovation and flexibility and that the Standard retains the requirement that schools ensure effective adjunct teaching. However, with a smaller subset of full-time faculty, many of whom will have additional institutional service work and have scholarship demands, the ability to also meaningfully supervise a large contingent part-time faculty may not be realistic.

Studies on adjuncts in undergraduate institutions

Of course, not all full-time faculty are better teachers than adjunct faculty.  In fact, on an individual level, often the opposite is true.  The question is what happens when a law school begins to rely heavily on adjuncts for two thirds of the courses students take?

For the past twenty years, undergraduate institutions have moved toward increasing use of adjunct faculty.  Although no definitive studies exist comparing undergraduate student learning outcomes between part-time versus full-time faculty, some studies suggest that student learning declines when students do not have the benefit of full-time faculty teaching doctrinal courses.

For example, a study by Florence Kirk and Charles Spector found undergraduate business students taught by full-time faculty had stronger learning outcomes than students taught by adjuncts.  Another longitudinal  study found that increased use of adjunct faculty correlated to lower undergraduate graduation rates.  However, other studies suggest adjuncts do not negatively affect student learning.

One reason for the Standard change might be that it sets the stage to allow schools to teach more online courses and staff them with adjuncts.  However, at least one study found that full-time undergraduate online faculty produced stronger learning gains than adjunct online faculty.

None of these studies examine the impact of adjuncts on student learning in law school doctrinal courses.  Before moving to a Standard that allows law schools to staff all upper level courses with adjunct faculty, it might be prudent to study law students’ learning outcomes in doctrinal courses taught by adjuncts versus those taught by full-time faculty.

Teaching aside, another study found that, not surprisingly, contingent faculty have less time for class preparation, fewer interactions with students on course and non course related issues, challenge students less, and use less interactive and collaborative teaching methods.  Additionally, adjuncts likely have less access to university teaching resources and less time to take advantage of those resources.

Adjunctification can lead to schools that have few tenured faculty members

The impact of the proposed Standard 403 change  on student learning raises some significant concerns.  Another concern is that part-time faculty are not tenured or tenure-track faculty. In undergraduate institutions, the Magness study notes that the growth in part-time undergraduate faculty resulted in “a decline in the overall percentage (though not in the absolute number) of tenured and tenure track faculty” – with tenure systems “virtually non-existent in for-profit higher education” institutions.

To the extent that tenure ensures both academic freedom and a robust system of faculty governance that protects the interests of students in an era of the monetization of education, a Standard that allows schools to significantly limit, or largely eliminate, tenure and tenure track faculty raises concerns.  This is especially true because the schools most likely to take advantage of a part-time faculty that has little voice in governance are the for-profit schools – schools which may be most likely to put economic interests ahead of educational concerns.

Notice and Comment Period Open Until July 10

 As the ABA Council on Legal Education grapples with a host of issues related to ensuring law students receive a strong legal education, is now the time to deregulate and allow schools to fully staff all upper level courses with adjunct faculty? Are the potential benefits of adjunctification when compared with the potential risks, worth the change?  Should the ABA be enacting regulatory rollbacks that may primarily benefit for profit schools?  All these are questions the Council should address before approving this Standard.

If you have thoughts about the implications of the proposed change to Standard 403 and the potential adjunctification of law schools, written comments or a request to speak at a hearing on the proposed change should be addressed to JR Clark, jr.clark@americanbar.org, by Monday, July 10, 2017.

Law Schools in the “Age of Accelerations”

How can law schools prepare students to enter what Thomas Friedman calls the “Age of Accelerations,” when new technologies, climate change, and globalization will likely reshape the planet, and the legal profession, for decades to come?  Friedman’s prescription for educators, contained as part of his eye-opening new work, “Thank You for Being Late: An Optimist’s Guide to Thriving in the Age of Accelerations,” suggests that higher education needs to become more student centered, student directed, and project based.  It must offer students opportunities for mentors who can guide them through their educational experience and internships that can give them exposure to real-world problems.  In an interdisciplinary course I teach at Albany Law School, together with faculty from the University at Albany, entitled “Law and Social Innovation: Creative Problem Solving,” my colleagues and I try to put some of Friedman’s prescriptions to the test.

In the class, law students and public administration students work in teams to provide high quality research support to local governments on a range of issues, most recently helping local cities deal with issues of urban blight.  The students work on projects that have them conducting field research and assisting local government lawyers and technology staff in bringing legal actions to combat the scourge of vacant and abandoned homes that impact many cities in Upstate New York.  The students assist those lawyers in working through the process of taking such actions and then make recommendations as to how the cities can streamline their processes to make them more efficient and effective.  In these ways, students learn not just how things are done in the cities and how to get things done, but how to work effectively in teams, to tap into their own creative sides, to engage in problem solving, and to communicate their ideas effectively.  The liaisons in city government offer them the chance to work closely with them in a real-world setting and mentor them on the realities of real-world practice.  My faculty colleagues and I also offer mentoring and individualized and customized support throughout the semester as our students explore their own capacities for creativity, leadership, and public service. In these ways, we tap into what Anders Ericsson calls “deliberate practice”: intentional, focused attention to measured, incremental improvement on discrete tasks, leading to ultimate mastery.  We also glean insights on how knowledge workers can distinguish themselves in a time of automation and outsourcing, thanks to Dan Pink’s “A Whole New Mind: Why Right-Brainers Will Rule the Future,” and working in teams, from research on the functioning of groups at Google, as captured by Charles Duhigg in his work “Smarter, Better, Faster: The Secrets of Being Productive in Life and Business.”

In short, I would like to think the students learn the skills and approaches that Friedman believes are needed generally in this Age of Accelerations, but also much of what is recommended by those in legal education specifically, like the Clinical Legal Education Association’s Best Practices efforts and the work of Educating Tomorrow’s Lawyers consortium.  I have written in greater depth about this class—its educational goals, the strategies we use to meet those goals, and the current state of the profession and the context in which students entering law schools currently find themselves—here.  Give the article a few moments of your time if you can spare them; I welcome comments and feedback on the class structure and approach and would be happy to share syllabi and thoughts on how the class can be adopted in and adapted to other contexts.

Developing the University of Missouri “Stone Soup” Case Database

Stone Soup graphic

The University of Missouri’s Center for the Study of Dispute Resolution is exploring the feasibility of developing a searchable database of descriptions and analyses of actual cases.  This post describes our plan and invites you to respond with your comments, suggestions, and commitments to participate.

The source of cases would be course assignments in which students interview people about actual cases and then write reports including narratives of the cases.  The reports would include some standard elements to permit efficient searches but otherwise, faculty would design the assignments as they wish.  The reports could focus on disputes, transactions, and other decision-making processes.  The database project would use procedures to ensure compliance with ethical requirements and good research practices.

We have a very broad conception of dispute resolution, which includes litigation.  In the past, there was a clearer division between “alternative” dispute resolution and litigation. These days, they are thoroughly intertwined and hard to separate.  In addition to cases about traditional ADR processes, the database would include reports about pretrial litigation, trial, and appellate litigation as well as government administrative procedures, internal organizational processes, and many others.

Faculty could use the assignment in a wide range of courses including ADR, litigation practice, clinic and externship, civil and criminal procedure courses, and even courses focusing primarily on legal doctrine.  In any course, the reports would need to include detailed chronologies of events in cases, though the focus would vary depending on the subject of the course.

Students generally would be required to submit the papers to satisfy course requirements (though some students could write up cases for extra-credit, independent studies, law review notes etc.).  Students would not, however, be required to have their papers submitted to the database.  In addition, interview subjects could agree to have the interviews used for the course assignment but not the database.  There would be an agreement specifying intellectual property rights, providing that the students would retain the copyright to their reports and specifying the rights of the University of Missouri and database users.

The database would be like a variation of Westlaw and SSRN.  Like Westlaw, it would include accounts of actual cases but it would focus on empirical accounts of what happened, not analyses of legal issues limited to legally-relevant facts.  Like SSRN, it would depend on contributions by our community, though the contributions would be case reports and/or analyses of cases rather than other types of scholarly articles.

In a post on the Indisputably blog, I describe the plans for developing the University of Missouri “Stone Soup” Case Database project.  We are now soliciting input to refine the details of the database.  About June 8, we plan to circulate updated versions of key documents listed below.  At that point, we would solicit commitments for faculty to use a Stone Soup assignment in one or more courses next academic year.  If we receive enough commitments by June 19, we will proceed with this project.

The Indisputably post includes documents with:

● a vision of using the database to create knowledge collaboratively
● guidance for faculty interested in using a Stone Soup assignment in one or more courses, including getting approval from institutional review boards
● information about ethical rules permitting lawyers and other professionals to discuss cases if they protect confidentiality
● procedures to protect confidentiality
● a model course assignment to conduct interviews about actual cases
● a model solicitation or confirmation for interviews
● guidance for students in conducting and summarizing interviews
● sample research papers
● possible database fields
● a form to commit to use an interview assignment next academic year

My Missouri colleague, Rafael Gely, and Arizona State Professor Art Hinshaw used this interview assignment in their negotiation courses this semester and they found that it worked extremely well and plan to use it again.

Art told his students this was the first time doing this assignment and he asked whether he should do it again.  They gave a resounding “yes.”  He said that from the papers and the debrief in class, the assignment legitimizes the lessons from class and really pulls things together for them.

We are hopeful that we will get enough interest to proceed with this Stone Soup project. Even if we don’t, it is a terrific course assignment that you could use in virtually any course.

If you have any questions or would like to discuss this, please get in touch with me.

A CLINICAL EXPERIENCE FOR ALL STUDENTS: IT’S NOT A QUESTION OF COST

by Robert Kuehn, Washington University School of Law

Unlike the education and licensing requirements for other professions, legal education and admission to the bar in the United States lack a mandated clinical experience in law school. American Bar Association Accreditation Standard 303(b) simply requires that a school provide “substantial opportunities” for its students to participate in law clinics or field placements (what are termed “clinical” courses) where they gain lawyering experiences from advising or representing clients. Under this permissive standard, only one quarter of schools ensure that each student can graduate with clinical training; five provide no opportunities to enroll in any law clinic; one provides positions in clinical courses for only 10% of its students.

Although lawyers agree that students need the training that comes from clinical courses, many legal educators and officials question the feasibility, particularly the cost, of ensuring that every student graduates with a clinical experience. However, the experiences of a growing number of schools and ABA data demonstrate that clinical education can be provided to all J.D. students without additional costs to students.

Many schools have economically provided clinical experiences to all their students for years. The City University of New York requires that each student take a twelve-to-sixteen credit law clinic or externship, with 2015 non-resident tuition the third lowest outside Puerto Rico.  Students at the University of the District of Columbia must enroll in two seven-credit clinics but pay the lowest tuition outside Puerto Rico. When Washington and Lee revised its curriculum to require twenty experiential course credits that include at least one law clinic or externship, it doubled the number of positions available to students in clinics. The school’s later review found that its new curriculum, even with the additional law clinic positions, “is not more expensive to run than the prior third year curriculum, nor the current first or second year curricula (indeed, it is less expensive).”

As of the end of the last academic year, thirty-four additional schools required each J.D. student to successfully complete a law clinic or externship prior to graduation; another nineteen guaranteed the opportunity to take a clinic or externship if the student wished. I recently published the results of a study comparing the reported tuition of schools that mandate or guarantee a clinical experience with the tuition of the remaining ABA accredited law schools — Universal Clinical Legal Education: Necessary and Feasible. Using a regression model and controlling for public-private status, U.S. News ranking, and cost of living in the area, there is no statistically significant difference between schools with a clinical mandate and those without. Likewise, there is no statistically significant difference between the tuition charged by schools that guarantee a clinical experience and those that do not. In addition, there is no statistically significant difference in the tuition charged by the fifty-six schools that mandate or guarantee a clinical experience with the schools that do not. Substituting a discounted tuition estimate for the published tuition amount did not change the results—there were no statistically significant differences in the discount tuition charged between private schools requiring or guaranteeing a clinical experience and those that did not.

There also is no evidence that schools adopting a requirement or guarantee subsequently raise their tuition at rates higher than average. Between Washington & Lee’s adoption of its new skills and clinical experience requirement and the second year of its implementation, its tuition increased at approximately the same rate as the median increase for all private law schools, even with the school’s doubling of law clinic positions.

Similarly, the tuition patterns of the twenty-five schools that adopted a clinical requirement or guarantee between 2010 and 2014 show no evidence that these schools raised their tuition as a result of the new educational opportunities. Law schools on average raised tuition 19.7% between 2010 and 2015; schools with a new clinical experience requirement or guarantee only raised tuition an average of 16.6%.

In addition to being financially feasible to adopt, the overwhelming majority of schools could provide a clinical experience today for every student without the necessity of any additional faculty, clinic or externship, or position in existing clinical courses. Based on 2015 ABA data certified by each law school’s dean, after appropriate and thorough inquiry, as “true, accurate, complete and not misleading, 171 schools (84%) reported they had enough existing capacity in their clinical courses to provide every graduate with a law clinic or externship experience, yet only 56 (27%) required or guaranteed that training.

Again reviewing 2015 tuition, the 171 schools who report existing clinical course capacity for all graduating students charged less in tuition, on average, than schools that did not have sufficient available slots, though the difference is not statistically significant. All the data, therefore, on the relationship between clinical courses and tuition indicate that the schools that would need to create additional positions in law clinic or externship courses to provide a clinical experience to all their students need not raise tuition to provide this opportunity.

The failure to ensure that each law school graduate has clinical training can no longer be justified, if it ever could have, on the basis of cost. Instead, the failure lies with the lack of commitment by those who oversee legal education and admission to the bar to changing the status quo. So, while the failure of legal education to provide clinical training for all students can be blamed on a four-letter word, that word is not “cost” but “will”— the lack of will by deans, faculties, and legal education and bar officials to ensure all students receive this much-needed training.

Less Lecture, More Learning

I recently read an article in the Boston Globe about a professional school that is pioneering a nationwide movement to ensure students are ready to meet the needs of the 21st century by pledging to eliminate all lectures in favor of interactive learning by 2019. Specifically, the school seeks to improve students’ listening, fact-finding, critical thinking, and collaborating skills. You might think the article was about a law school, since these are the skills often cited as crucial to law students’ future success, but the article was about the University of Vermont Medical School.

Lecture format is difficult to move away from. Students are comfortable as they feel they get a guide to what will be tested. Professors are comfortable with lectures because they learned by lecture and likely have already prepared and lectured on the material before. However, experts agree that much of what is taught by lecture is forgotten within weeks. Learning requires more than just listening to take hold.

Medical school has typically been divided into half lecture, half clinical clerkship. In this way, medical students already received more on the job training than most law students. Law schools, prompted by the new ABA guidelines, are striving for ways to introduce more active learning through experiential classes, skills requirements, and clinics. Maybe a close look at this movement in medical schools would serve us well. A 2014 review of 225 studies of science, engineering, and mathematics instruction, as well as Vermont Medical School’s own review, showed that test scores increased after team-based learning was introduced. Law schools have traditionally lagged behind curricular development in other professional schools. For example, in 2007, the Carnegie Report criticized the law school lecture format, saying “…unlike other professional education, most notably medical school, legal education typically pays relatively little attention to direct training in professional practice. The result is to prolong and reinforce the habits of thinking like a student rather than an apprentice practitioner.” Maybe it’s time for law schools to again follow these other professional schools and move further away from the lecture format.

%d bloggers like this: