AALS Video Series on Law Teaching

Recently, a fellow blogger sent us a very helpful tool, that we wanted to share with our readers.  Last year, during the 2015 AALS Clinical Conference, a series of informative videos was created for law professors about the complications associated with law teaching.  The entire series is about an hour long, with each individual video being only about 5 minutes long.  These videos address some of the important pedagogical issues that law professors are currently grappling with, such as assessment, adding experiential learning to doctrinal courses, reflection, and technology.

This in the link to the entire series:

A Modest Proposal (for more coordination)

I recently attended the Emory Transactional Law conference (which was excellent, as always).  The conference is held every two years; this was their fifth.  Earlier in the spring semester, while I was putting together my talk (on What Law School Curriculum Committees Can Learn From Architecture Schools) I noticed that the Institute for Law Teaching and Learning 2016 conference would be going on at the same time, as well as the Third National Symposium on Experiential Learning in Law.

There are differences in emphasis among the three conferences.  But it’s fair to say that most, if not all, of the attendees at all three events are in what might be termed the “reform wing” of legal education.  While the ideas being circulated at all three conferences may be familiar to most readers of this blog, and while those ideas are being incorporated into law school curriculums throughout the country, the reform movement (broadly construed) still does not command a majority position in legal education.  So I have to ask – why would three such conferences be scheduled at the same time?  I know there is no commissioner or czar of legal education, let alone a single leader of each of the various components of the reform movement.  I also know that with the limited travel budgets many professors have, attending more than one conference in a year might be out of reach.  But I wonder if there isn’t some way to better coordinate scheduling of such conferences for those who would want to attend more than one of them.  I don’t know who put their marker down first, and I don’t know if any of the players knew of what the others were planning.  But perhaps more coordination, and more deference to others, might have been in order.

“Distance Learning”

by Steve Friedland, Elon University

Sometimes I wonder why we call mobile, on-line education “distance learning.” I understand that on-line education occurs at a distance, but even in regular bricks-and-mortar classes, learning frequently occurs at a distance as well. Students may participate and take notes in class, but often the great bulk of their learning occurs elsewhere. Students often need additional time to untangle the points and structures discussed in the course. In fact, a class session might not offer the time or space needed to process what has occurred. This means students will dissect or “unpack” the rules or policies and their application after class, when they are resolving problems, reviewing their notes, or simply recalling what happened.   When I was a student, most of my light bulbs went off when I was studying in depth in the library late at night or right before a final exam, when I was trying to reconstruct the mosaic of the entire course.

Several inferences can be drawn from these premises:

1. Creating time to repack a class. It would be useful to give students time to play with ideas and organize them after a class, perhaps in informal sessions with the professor. Some of the best sessions I had with students this past semester were over coffee in the school’s lounge after difficult property classes. I could see that just by discussing what happened in the class made for better and deeper understanding of the concepts. It really brought to mind the old saying, say 1000 times, hear 100 times, understood 10 times. I don’t rely just on my own experience or this venerable bromide. The brain science studies suggests that every time we revisit a subject we tend to reorganize it – something I found true with teaching a course multiple times – and it would be interesting to give students time after a class in a relaxed setting to discuss with the teacher what has occurred for the purpose of developing course structures

2. Engage students at a distance. Instead of just asking students to read cases or statutes, it might be preferable to flip the classroom and give them tasks that require precisely stated deliverables, such as arguing for or against parties or a position. In this way, we could continue threads in class started at a distance beforehand.

3. Directed Review. Since learning experts have found that ‘spaced repetition’ is a very useful way to promote recall, it might be helpful to direct students on how to review material.  Students can be asked to create very short PowerPoint mini-reviews of one of the class topics and present that review in class at the end of the semester. In this way, the professor can observe what students are learning, students can learn by creating a review, and other students can benefit from the mini-reviews by opening up the on-line site where the presentations have been posted.

These are just some of the ways we could start to transform learning at a distance, as well as not view it as a lesser form of education. In fact, it may just be the wave of the future.

Cultivating Ethical Decision-Making and Practical Judgment

Geoffrey Hazard, chief architect of the Model Rules of Professional Responsibility, cautioned that the Model Rules should be understood as “a code of legal standards, not ethics.” Geoffrey C. Hazard, Jr., Rule of Ethics: The Drafting Task, 36 The Record 71 (1981).  The Preamble to the Model Rules also makes clear that the Rules do not provide everything a lawyer needs to resolve ethical dilemmas.  The lawyer must also rely on not only “personal conscience” but also “sensitive professional and moral judgment.”  Indeed, the Preamble acknowledges that all difficult ethical decisions arise from a conflict between the lawyers duties to the client, to the legal system, and to “the lawyer’s own interest in remaining an upright person.”  Anyone who thinks that the Model Rules by themselves should serve as a lawyer’s sole guidance for making ethical decisions is, therefore, mistaken.  The Model Rules set a minimum threshold for conduct that will avoid discipline.  For the many areas left to the lawyer’s discretion, the Rules give little direction.

               The two influential 2007 publications—Best Practices for Legal Education and the Carnegie Report’s report–noted that focusing exclusively on the Model Rules misleads law students.  The Carnegie Report put it this way:    When legal ethics courses focus exclusively on teaching students what a lawyer can and cannot get away with, they can inadvertently convey a sense that knowing this is all there is to ethics.”   Both Carnegie and Best Practices challenged law schools to help students cultivate a professional identity—an internal sense of values and principles they will integrate into their professional life.    Doesn’t that sound like the “personal conscience”   to which the Model Rules’ Preamble refers?  

               If we accept the recommendations of the 2007 reports and want to help students cultivate an ethical code and to develop a method for resolving ethical dilemmas, the challenge to legal educators is in finding teaching methods that do so.  I coauthored an article—http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2414015—that explored teaching practices for developing both professional identity and ethical decision-making.   Many of the proposed methods come from my and my coauthor’s classroom experience.  The article also offers approaches used by other legal educators and even by teachers in other disciplines (e.g. medicine).    To date the most effective method I have found is the series of reflection papers described at pages 398-406 of the above article.   The approach involves a series of assignments in my Civil Pretrial Practice and Procedure course.  The course materials provide “gray area” situations in which a particular course of action gives an advantage to the client, at the expense of undermining the legal system or compromising the lawyer’s integrity.   The course syllabus requires students to prepare reflection papers in which they: (1) describe the conflicting interests and values; (2) discuss all Model Rules at issue, as well as at least one other pertinent source addressing the ethical issue; (3) talk to a mentor, identify the mentor, and recount the  conversation with the  mentor about the issue;  (4) in light of steps 1 through 3, describe who will be affected by the different potential courses of action and how the person or entity will be affected; and (5) form an opinion as to the issue in light of all of the considerations.   

               Why bother with all of this effort, some ask, if evaluating the client’s interests, curbed only by the Model Rules, allows for quicker decisions?   The full answer to that question is for another blog post.  For now, consider this: growing evidence shows that lawyers who make these decisions without reflection become increasingly disillusioned over time.   Those who wrestle with ethical decisions are more likely to respect themselves and be respected by their peers.  Is personal integrity worth the struggle?  I leave that question for the students.   But I’m satisfied that we are developing teaching methods that will give students a framework for the process.   Although they will need to practice making these decisions to develop the judgment we admire in the best lawyers, the presence of a framework will advance their maturation as ethical lawyers.

Valuing Faculty Committee Work

In “Incentivizing and Assessing Committee Work Contributions, Why Now? Professors Andi Curcio & Mary Lynch suggest that changes in legal education models necessitate re-thinking law school committee work responsibilities and rewards.  Their article  is a worthwhile read for anyone who believes the current system of committee workload allocations needs to change. Below is their abstract.

Faculty scholarly productivity reaps tangible internal and external rewards while the “reward” for excellent faculty committee work performance often is additional committee work. Some faculty members perform substantial committee work while others spend little time on institutional service, leaving them more time for scholarship. Despite equity issues, this system maintains the faculty self-governance model integral to academic freedom, and the necessary service work gets done. This article suggests that this traditional workload distribution model may be unsustainable. Innovations in legal education brought about by financial pressures, declining enrollments, and new accreditation standard requirements will result in increased committee workloads while reductions in full-time faculty at many schools leave fewer faculty members available to do that work. Those currently doing the lion’s share of the work may be unable, or unwilling, to take on more committee work. This article examines methods for avoiding an institutional governance crisis.

Grounding the discussion in social science literature, it explores ways to more fully engage all faculty members in committee work by creating accountability structures via smaller committees, peer evaluation of committee work contributions, and rewards for extraordinary service work. It posits that peer evaluations of committee work set normative standards and provide tangible evaluative tools, potentially changing cultural expectations about committee work participation. The article discusses the benefits and potential pitfalls of faculty committee work peer evaluations, provides a sample evaluation rubric, and sets forth a roadmap for implementing a committee work peer evaluation program. It also examines ways to encourage committee work stalwarts to continue their extraordinary service via a reward system. Amongst the rewards discussed is a year’s release from committee work responsibilities to allow for more time for scholarly pursuits. Throughout, the article suggests ways to engage more faculty in the work necessary to maintain thriving self-governing educational institutions in today’s changing legal environment.

Proposed Change to Bar Pass Accreditation Standard

This post alerts readers to a proposed change in the bar pass accreditation standard and questions that change raises.  It also asks whether the proposed accreditation standard change opens the door to a bigger discussion about the need for a licensing exam that better reflects the competencies needed to practice law.

Proposed Change

A proposed change to ABA Standard 316, the bar accreditation pass rate standard, is out for notice and comment. The proposed change simplifies the standard to a single criteria: “At least 75% of a school’s students who sit for a bar exam must pass an exam within two years of graduation.”

The proposed standard eliminates the current provision that accounts for the significant variations in states’ overall bar pass rates. Currently, schools are in compliance with Standard 316 if “in three of the last five years, a school’s first time bar passage rate is no more than 15 points below the average first-time bar passage rates for graduates of ABA approved law schools taking the bar exam in those same jurisdictions.”

Questions The Proposed Change Raises

A recent Society of American Law Teachers comment letter provides an in-depth exploration of numerous unanswered questions the proposed accreditation standard change raises.  Those questions include:  1. its impact on schools in states with historically low bar pass rates; 2. its impact on schools in states which recently have adopted the UBE that are in the process of adjusting their curriculum to conform to the UBE; and 3. its potential impact on access to legal education if the proposed change causes schools to rely even more heavily on LSAT scores in their admissions process. These questions suggest a need for more information before adopting this proposed Standard.

Others who want to comment on the proposed change have until July 29 to do so.

Proposed Standard Prompts Questions About the Exam

Schools clearly have an obligation to ensure their students are able to obtain a law license and accreditation standards must ensure schools meet that obligation.  That said, this proposed standard change should open the door to discussions about the bar exam itself.

Why do we have an exam that requires memorization of thousands of legal rules, many of which may be inapplicable in an examinee’s own jurisdiction?  Does an examinee’s ability to read, issue spot, analyze and answer two hundred multiple choice questions in 360 minutes [allowing less than two minutes per question] really demonstrate that person’s minimum competence to practice law?    Is an exam that tests a wide range of doctrinal areas but only a few lawyering skills, and that tests lawyering skills in ways largely unrelated to law practice, the best way to  protect the public from incompetent lawyers?

As the SALT comment notes, many states “have attempted to address the disconnect between the bar exam and law practice with alternative licensing requirements designed to ensure newly licensed lawyers possess a broader range of competencies than those tested by bar exams.”   To better protect the public from incompetent newly licensed lawyers, some states have added pro bono work or experiential learning and practice requirements. These additional requirements may help remedy bar exam inadequacies but they also  create additional hurdles for future lawyers, present regulatory and administrative challenges for state licensing agencies, and create a wide range of issues for schools with a national student body.

At the same time there is a push for national uniformity in law licensing via the Uniform Bar Exam [UBE],  we see an array of state licensing requirements.   If we had a bar exam that actually measured minimum competence to practice law, would states need to develop individualized supplementary licensing mechanisms?

A Time For Change?

The NCBE has engaged in a concerted campaign to push states to adopt the UBE.  What would happen if the tables turned and states pressured the NCBE to develop a test that better measured competence to practice law? What would happen if some entrepreneur developed a superior law licensing exam and threatened the NCBE’s virtual monopoly over the law licensing process? Would we then have a test that more accurately reflected and assessed the skills lawyers need?

If there is a demand, a product appears. That certainly is what we saw in the rapid changes to legal education models brought on by public demand.

As colleagues and I wrote about in a recent article, many legal educators and scholars have developed a range of assessments that measure a much wider range of lawyering skills than is currently tested on bar exams.  Why isn’t the NCBE working with those people to develop a better bar exam?

While legal educators adapt what and how we teach to help prepare students for the existing bar exam, we also should be questioning the validity of that exam.  Discussions about the proposed amendments to Standard 316 provide an opportunity to push for much needed changes to the bar exam.

Creation of New AALS Section: Leveraging Technology for the Academy and the Profession

 

 

The world of legal practice is changing.   We regularly hear about new technologies that have the potential to remake long-term approaches to practicing law.  From data analytics to self-help materials, lawyering and access to information about the law is undergoing tremendous change.

The AALS Clinical Section’s Technology Committee is gathering signatures to petition the AALS to create a new Section that would address these issues.  The new section would bring together academics and staff from throughout the academy who share a common interest in the advancing scholarship and teaching about role that technology is playing and will continue to play in legal education and the practice of law. We believe that it is important that members of the legal academy become familiar with and take a lead in driving the changes being made and affordances provided by technological innovations in the delivery of legal services.  We envision that our members will teach in diverse subject areas, and will include academics (doctrinal, clinical, legal writing), librarians, and administrators, among others.  

Technology and the practice of law:  The Leveraging Technology Section will provide space for legal academics to consider and shape how evolving technologies are impacting and could impact law and legal systems.  It will encourage law professors to engage in cutting edge research and scholarship that can help to craft the new normal and create a space to share that scholarship with the broader community.  The Section hopes to address how law school faculty can understand the rapid and profound technological change that could well remake law practice and how they can be at the forefront of framing a “new normal” for legal practice and lawyering.  The section will also help law professors access materials that will assist them in preparing law students using emerging technologies in the practice of law.

Technology and legal education: Many schools are currently in the process of strategic planning and thinking about the future of legal education, including developing learning outcomes and assessment methods, considering educational technology options, and considering the sequence and structure of the entire curriculum.  This Section will consider the role that educational technologies may play in the future of legal education.  The Section will (1) lead a conversation about whether educational technologies that have been developed and used successfully in legal education may be able to scale to other law school classes; (2) introduce law professors to new educational technologies being developed for use in other areas of education so as to inspire this group of educational leaders to be at the forefront of change as it relates to technology and the legal academy, and (3) introduce law professors to pedagogies used to expose students to emerging technologies that are being used in the practice of law.

We are seeking signatures of those in the academy who support the creation of this new section. If you are interested in joining the section as a founding member, please add your name to the list, available here. (AALS requires that we obtain at least 50 signatures from full time faculty members and/or professional staff from at least 25 different schools).

Valena Beety (West Virginia)

Warren Binford (Willamette)

Michael Bloom (Michigan)

Larry Bridgesmith (Vanderbilt)

Alyson Carrel (Northwestern)

Jenny Brooke Condon (Seton Hall)

Ron Lazednik (Fordham)

John O. McGinnis (Northwestern)

Michele Pistone (Villanova) Chair

Jeff Ward (Duke)

Leah Wortham (Catholic)

 

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