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.

Bilingual Legal Education for Spanish-English Speakers

A few years ago, I wrote a piece for the Journal of Legal Education asking whether it was time to think about providing bilingual education in the United States (see S.I. Strong, Review Essay – Bilingual Education in the United States: An Idea Whose Time Has Come, 64 J. Legal Educ. 354 (2014), https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2884836).  In that piece, I noted that although the longstanding connection between law, language and the state traditionally led law schools to provide legal education in a single language, contemporary lawyers are increasingly likely to need foreign language skills in both domestic and international settings. As a result, I suggested that U.S. law schools might consider taking steps to improve U.S. lawyers’ ability to operate in multiple languages, as is routinely done in a number of European nations.

This is not to say that U.S. law schools do not offer courses meant to help students achieve fluency in the legal language of other jurisdictions. Some do.  However, U.S. law schools lag far behind their European counterparts in this regard.  Furthermore, U.S. legal educators suffer from a lack of resources for instructors of foreign legal language courses and from the absence of any discussion about what constitutes best practices in the field.

Some help in this regard may be forthcoming as the result of the work of the International Academy of Comparative Law, which will be considering bilingual education in 2018 at its upcoming World Congress in Japan (see http://iuscomparatum.info/recent-news-test-2/).  Various members of the American Society of Comparative Law will be in attendance at that meeting and will hopefully be able to bring back some ideas about how U.S. law schools can improve their curricular offerings.

In the meantime, however, there is a resource already available to those teaching across the Spanish-English linguistic divide that provides a new, potentially revolutionary approach to bilingual legal education. Comparative Law for Spanish-English Lawyers: Legal Cultures, Legal Terms and Legal Practices / Derecho comparado para abogados anglo- e hispanoparlantes: Culturas jurídicas, términos jurídicos y prácticas jurídicas (Edward Elgar Publishing, Ltd., 2016) (see http://www.e-elgar.com/shop/comparative-law-for-spanish-english-lawyers) is an entirely bilingual text that goes “both ways,” as it were, so as to help those involved in teaching legal Spanish to native English speakers (as would be the case with many J.D. candidates) as well as those involved in teaching legal English to native Spanish speakers (as would be the case with certain foreign LL.M.s).

The goal of the book is to help those who are conversationally fluent in a second language achieve legal fluency in that language while also contextualizing the analysis in a comparative paradigm.  The text was co-written by Professor S.I. Strong of the University of Missouri, Professor Katia Fach Gómez of the University of Zaragoza and Professor Laura Carballo Piñeiro of the University of Santiago de Compostela to offer practical, doctrinal and linguistic insights into a variety of English- and Spanish-speaking jurisdictions, thereby providing comparisons not only across the Spanish-English divide but also within each language.  Given the nature of this particular language pairing, the book necessarily addresses various issues resulting from the differences between the common law and civil law, although the discussion is not limited to that type of binary analysis. The book is suitable for both group and individual study, and provides useful tips for academics, practitioners and law students.

Hopefully books like this will not only help those who are currently interested in Spanish-English bilingual legal education, they will also trigger a larger discussion about both the need for and the shape of bilingual legal education in the United States and elsewhere. Indeed, that sort of conversation seems long overdue.

 

Adding Your Name to the Professor Watchlist

Most of you have probably heard of the Professor Watchlist, a website that seeks to “expose and document college professors who discriminate against conservative students and advance leftist propaganda in the classroom.”

As the AAUP notes, “This website poses a clear threat to academic freedom. Over the past century, such lists have been used to harass and intimidate faculty, and have a chilling effect on academic freedom and free speech.”

One way to stand in solidarity with those who have been named to this list is to voluntarily place yourselves on this list.  If you would like your name to be added to the list,  the  link is:

https://actionnetwork.org/forms/add-my-name-to-the-professor-watchlist?source=direct_link&

You also could consider spreading the word to colleagues at your school and in other departments.

As our core values come under attack, addressing those attacks both empowers us and demonstrates to our students that lawyers must continue to take the lead in fighting for social justice – especially in times where doing so may present personal or professional risks.

Playbook for Student Resistance

In the aftermath of the national election, many students are looking for ways to respond to what they see as a greater need for and focus on social justice in their studies and their field work as students.  In the early 1990s, as a law student, I was honored to have been a part of a team of students, faculty, and practitioners that brought a legal action to halt the U.S. government’s detention of HIV+ Haitian refugees on the US naval base on Guantánamo Bay, Cuba, long before that site became a household name.  I have written about that experience here, and include a few practical pointers for students looking to take on similar social justice projects today.  Please share the piece if you think it helpful to any of your students.  If of interest, a full-length, law review-style treatment of these issues is also contained in a forthcoming piece in the New York Law School Law Review.

Dealing with the Aftermath of the Election

I just re-read Mary Lynch’s passionate and thoughtful post about teaching to students traumatized by the election, along with comments in response.  I share many of the reactions described there.

In the aftermath of the election, I wrote several posts on the Indisputably blog that complement these ideas.  These posts are part of a general theme emphasizing the importance of seeing the world through others’ eyes.  This is an important practical orientation for lawyers and other dispute resolution professionals in their work.  I think it is also valuable for dealing with conflicts in our daily lives as well as in the political realm.

In a post entitled, How Can We Build Common Ground Between Bubbles?, I suggested that probably most of us live in bubbles as society has become more polarized and less emotionally safe.  I described how many people, on all sides of the political lines, feel painfully disrespected by the others.

I suggested that it may help to start by using a neutral, mediator’s mindset to sympathetically understand how the world looks from others’ “bubbles” without evaluating the merits of the views.  A fundamental part of the conflict reflected in the election seems to be about identity – who is worth respect and help and who is not. Recognizing the reality of people’s experiences and empathizing with the pain felt by people on all sides is really hard especially because some people feel that acknowledging others’ problems is an implicit devaluation of their own problems.

Starting by understanding different perspectives does not require that people believe that there is equal merit on both sides.  I certainly don’t believe that.

In a later post, I suggested that the approach and tone of then-Senator Obama’s 2008 More Perfect Union speech provides a good model for trying to build common ground.  It described perspectives of blacks and whites in the US, and judged them sympathetically without suggesting that one was better than the other.

After serious effort to understand others, we should judge as Senator Obama did. All ideas are not equally valid or beneficial (or harmful).  So being non-judgmental isn’t a good solution. People should not agree just for the sake of agreeing.  Rather, I think that people should try to constructively engage in conflict, though that’s easier said than done.

I also posted two messages from the National Coalition on Deliberation and Dialogue.  One provides general suggestions and resources for dealing with the aftermath of the election. The other provides tips for better Thanksgiving conversations.  These ideas may be helpful for family gatherings during the upcoming winter holidays.

Of course, these posts provide more detail about all of this.  They stimulated a number of comments, including some controversy about how to best manage holiday conversations.

I wish I felt confident about a solution to recommend for constructively dealing with the highly polarizing conflict reflected in this election.  I don’t.  I hope that the ideas in my posts may be helpful in figuring this out.

The Voices We Can’t Hear: How Student Loan Debt Helps Maintain The Status Quo

When I began this blog post, I admittedly started in a completely different direction. I kept coming back to a topic that has always intrigued me; how is it that the students we teach get to the point where they are in our class or clinic?  What was the path that brought them here? What were their motivations and what did they originally seek out to accomplish? But I also wonder, and what led me to this particular topic is, who could be here, but isn’t?

This post addresses in part, one of the challenges that presents itself for both current and potential law students. Debt. I often wonder if we are doing enough as law professors to encourage students to not only enter public interest work but make sure motivated and passionate students who face multiple barriers, including socioeconomic and class background, are able to view law school as a realistic option in the first place. One of the ways I believe we can bridge the gap between underrepresented student groups of all types and the traditional law student is supporting (and assuring students are informed about) loan forgiveness programs such as the Public Service Loan Forgiveness Program (PSLF).

For those of you not familiar with the program, PSLF is a program that allows an applicant to have their federal loan debt forgiven after 120 on-time payments while working in qualifying nonprofit, government or other public interest employment. For law students who want to work in public interest, this can make law school more realistic.

PSLF has been on the chopping block in Congress a few times in recent years and, admittedly, a selfish fear comes to mind with the new incoming administration: will it support programs like this? This topic may seem unimportant given the serious concerns we and many of our students have (and are aptly described in Mary Lynch’s recent blog post). We know we must support our students. But I keep coming back to the voices of the talented, dedicated students who never made it to law school, and not for lack of talent or ambition.  Many of the voices who are locked out are likely those who are able to speak to economic and racial injustice better than most in our elitist profession.

Statistically, law school debt has affected some groups more than others. Here I focus on one example; first generation college students who go on to attend law school. According to the LSSSE 2014 Annual Survey, first generation students have more debt than non-first generation students. This is thought in part to be attributed to lower levels of family income and support, and educational degree expectations and plans. 48% of Hispanic, 43% of black/African-American, 25% of Asian and 23% of white law students are first generation college students.  Among other factors, the exorbitant cost of law school closes the door of opportunity to be a lawyer before many even have a chance to pass through it. Some are willing to take on the debt to pursue higher education, but for those who aren’t—or realistically can’t—the door is not only closed but appears locked.

Generally, first generation students in law school are in the minority, at 27%. They usually have to work outside school, and they are able to participate in less extracurriculars as a result.(LSSSE)  A 2015 op-ed from the National Law Journal  spoke to how the neediest students end up with more debt because scholarships are often merit-based (LSAT scores) instead of based on financial need. Considering the correlation between high parental education and high LSAT scores, the author argues that the neediest applicants are doubly disadvantaged; “They are least likely to gain admission and, even if admitted, they are least likely to be awarded the most generous scholarships.”

Putting this into perspective, the numbers surrounding law school costs and debt—with which I’m sure you are all familiar—are staggering:

In 2014, the average law student graduating from a private law school accumulated $122,000 in student loan debt, and the average public law school graduate had accumulated $84,000. This does not include an average of $30,000 in student debt for undergraduate studies. By contrast, according to a 2014 survey by the National Association for Law Placement, the starting salary for a legal aid lawyers was $44,600, and for prosecutors and public defenders, starting salaries for each were approximately $50,000.” Public Service Loan Forgiveness: ABA Supports Preserving Federal Public Service Loan Forgiveness-One Pager 

A common argument against keeping programs such as PSLF is that students are uneducated about the consequences of loans and should be held responsible for the payments. Doing the math, it doesn’t make much sense to take on a debt of $140,000+ only to have a chance of working in a highly-competitive job in the $40,000-50,000 range. With the consequences of loan debt so apparent, and the alternatives so few, we are in fact telling future public interest lawyers that they are bound to a life of high debt unless they receive a scholarship or they (or their families) can afford the high tuition.

Programs like PSLF can be a threat to the enormous profit the federal government makes on student loans every year.  At the same time, from an economic perspective, less loan debt means more spending power, which results in more money being pumped into the economy, housing market, etc. As a society, we pay a lot of lip service to the importance of an education and then chide students for taking out loans to afford that education.  High debt has delayed many borrowers from getting married, having families, and buying houses. If nothing else, maybe the fact that borrowers with loan forgiveness would pump money back into the economy will sway the incoming President, who has already spoken out against the high costs of education and the profit the government makes from student loans. Even considering the political compromises that go into budget proposals, I was disheartened that President Obama proposed to limit the PSLF loan forgiveness to $57,500 in his 2015 budget proposal. As a former community organizer and law professor, he was no doubt aware of the high costs of law school and low pay of public interest work. It remains to be seen what our President-elect will do.

Loan forgiveness programs like PSLF made a career in public interest attainable for me. Many first generation students like myself, whose families couldn’t financially support us through college and law school, made a tough decision that others call irresponsible. I don’t regret my choice. But my ability to spend a career working as a social justice advocate will suffer if PSLF is taken away. And many incoming law students who, but for PSLF, law school would otherwise not be possible, will be cheated of a chance to pursue their dream of doing the same.

We need public interest attorneys. Many who currently have a career in public interest entered law school to do what they are doing now. Let’s keep the option open to all passionate, dedicated, and talented persons who want to work for social justice, regardless of their background or differences, seen and unseen. Support these programs at the federal and state level in any way possible. I have been inspired by the efforts of the ABA’s campaign #Loan4Giveness which followed the proposal to cut the PSLF program, as well as SALT’s B.A. to J.D. Pipeline events.  We hear a lot about educating students on the realities of job prospects and debt post-graduation. While vital, it’s equally important to recognize the injustice involved in limiting public interest jobs to those who can only afford law school without incurring substantial debt.  More generally, it’s also important to consider how the elite structure of law school encourages a select applicant pool values certain admission criteria that only continues keeping out the under-represented.

Support students by making them aware of these programs, and by sharing your own story if you or someone you know has benefited (or could have benefited) from such a loan forgiveness program. I would like to echo Jill Engle’s July blog post in saying that the privilege we have, has given us a platform. The ability to go to law school is an opportunity that not everyone has been presented with. The voice that comes with being an attorney is incredibly powerful when used for the right purpose, and if we allow schools to remain elitist institutions where anyone can apply but few can afford on their own, the status quo will not change and diverse voices will go unheard.

 

 

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