Competencies-Based Legal Education

[This was originally posted by the Clayton Christensen Institute on Disruptive Innovation]

 Last week, I discussed why law schools need to respond to the changing marketplace for legal services and legal education.  In thinking about how best to prepare for that changing world, law schools need to consider how competency-based educational models can be employed to advance educational objectives for students seeking to enter the market for legal services.  As Michael Horn and I explain in our new whitepaper, Disrupting Law School, regulatory protections that have sheltered law schools from competition will continue to subside.  In this new environment, law schools need to reimagine themselves as educators for students interested in learning about the legal services sector, not simply those seeking a JD.

One way to do this is to think about legal education from a blank slate.  Rather that try to retrofit our current pedagogy to address 21st century needs, instead we need to think about it from its inception — if one were to start a school today to educate those who want a career in the legal services field, what would that school look like?

Upstart competency-based education programs have done just that in other parts of higher education.  They provide at least three new considerations for traditional law school as they begin to think about and prepare for the future.

1. Time is no longer the measure of accomplishment

Online competency-based learning reverses the traditional relationship in education between time and student learning. In the traditional educational model, time is fixed while each student’s learning is variable. With online competency-based learning, the relationship between time and learning is reversed — time becomes the variable and each student’s learning becomes essentially fixed. Students process at their own pace, moving from topic to topic upon mastery of each. Those who need more time to master a concept before moving on to the next take the time they need, while others move ahead to the next set of material and learning objectives.

2. Centrality of competencies, learning outcomes, and assessments

Online competency-based programs shift the teaching pedagogy toward student-centered learning. In an online, competency-based program, faculty and instructional designers start by identifying the competencies students must master to achieve the desired learning outcomes and then work through each to understand how a student would demonstrate mastery of those objectives. Through constant feedback, students know how they are doing and what they need to do next and teachers can determine when students have mastered competencies and are ready to move forward. The assessments in other words are both forward looking—assessments that help determine what a student studies nextand backward looking —assessments that indicate whether a student has mastered the material.

3.  Modularization of course material provides more flexibility and different business models

Online competency-based learning is also changing key elements of the traditional higher education business model. Online technologies make it possible to modularize the learning process—that is, to break usual semester-long courses into shorter learning units or modules, which can be studied in sequence or separately. When material is packaged in online modules, it is easier to use for multiple educational purposes and multiple audiences in different combinations.

Stackable modules allow students to create individualized curricula based on their own learning goals and objectives. For students who attend law school knowing the area of law in which they want to practice—a segment of the student body currently underserved due to limited course offerings in any one topic at any one law school—modules open up opportunities to stack credentials from multiple sources. The long tail of the Internet opens up these opportunities; there may be sufficient student demand if online courses can aggregate demand and serve students from around the country or even the world.

Modules also eliminate duplication and optimize teaching resources. This flexible architecture can create an entirely new business model for law-related education. When learning is broken down into competencies—rather than semester-long courses—modules of learning can be packaged into different scalable programs for very different audiences—for example, paralegals, legal technicians, law students, lawyers (CLE), judges, administrative agencies, non-JDs working in law-related fields, foreign students, high school/college moot court teams, undergraduate students, journalists, clients, life-long learners, and so forth.  The possibilities abound.

This exercise can take us in a lot of different directions.  Every direction, though, will ask us to change and move beyond the status quo.  While change is hard, it is also necessary.  I hope our whitepaper provides sufficient impetus to get started.

Disrupting Law School

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In a new whitepaper, Disrupting Law School, Michael B. Horn and I explore various aspects of disruption in the legal services sector with an eye toward how law schools can respond proactively. As we state in the whitepaper, it is clear to us that law schools need to change. But many in the academy believe that we are insulated from disruption because of regulatory protections. In our view, reliance on this regulatory scheme for protection is misguided.

Heavily regulated industries can be disrupted. The taxi industry provides an example. Uber’s novel business model, which intentionally by-passed regulators, has been embraced by customers, investors, and drivers. As we have seen in other industries, once innovations like this accumulate sufficient market support, the regulations will ultimately be loosened to accommodate them.

It is no surprise, then, to see changes in the regulations affecting both lawyers and law schools. Horn and I identify at least three ways that regulations are opening up.

First, advances in technology are altering the traditional legal services value network. For decades lawyers have provided expensive customized solutions for each individual client. Now, the industry is seeing technological innovations bring more standardized, systematized, and, in some instances, commoditized offerings to the market. The rise of LegalZoom is an example of this kind of disruption. LegalZoomhasbeen challenged on regulatory grounds; the claims were that it was engaged in the unauthorized practice of law. LegalZoom won or settled the court challenges. Those successes have motivated it to expand upmarket, as is typical of disruptors.

Second, technological developments are breaking down the traditional rationale—the protection of the public—for granting lawyers a monopoly on the practice of law. State regulators of bar licensure are taking note. States are beginning to experiment with providing non-JDs limited licenses to provide legal services that until now only JDs could provide.

The State of Washington provides the first example.  It recently licensed legal technicians—non-JDs who are specially trained to advise clients in a limited practice area, in this case family law. Akin to a nurse practitioner, a limited license legal technician (LLLT) can perform many of the functions that JDs traditionally performed, including consulting and advising, completing and filing necessary legal documentation, and helping clients understand and navigate a complicated family law court system. Only two years old, this new model is already gaining traction outside of Washington; the bars in California, Colorado, Massachusetts, New York, Oregon, and Utah, are each considering similar limited licensing options to authorize non-lawyer practitioners to practice in limited capacities in their states.

Finally, on top of the changes coming about through technological innovations and new licensing models, higher education itself is also seeing a variety of potential disruptors emerge, all powered at least in part through online learning. The startups can transform higher education by offering programs that are more flexible, more convenient and, often, more affordable than programs offered in the traditional higher education model. And because they are able to take advantage of a variety of new technologies, business models and teaching pedagogies, these players are positioning themselves to change the status quo in higher education. Here again, law schools may feel protected from the disruption that is coming toward the universities in which we sit because of strict ABA accreditation standards that limit online competition. But here, too, we warn against becoming too complacent when relying on existing regulatory protections.

The ABA recently granted a variance to Mitchell Hamline Law School to offer a blended online, in-person JD program. This acceptance of online learning within the JD, coupled with the ABA’s push for the adoption of learning outcomes and formative assessment, suggest that efforts to innovate using online technologies will find support by accreditors. And students may find online programs attractive as well. Judging from its first class, there is pent-up demand for such an offering; the students who enrolled in Mitchell Hamline’s blended program had higher predictors of success (LSAT and undergraduate GPA) than the class of students enrolled in the live JD program. The program’s former dean, Eric Janus, told me that students in the blended program even expressed gratitude to the school for offering them an opportunity to learn the law. That’s because before this offering became available, the alternative was nothing at all.

Ultimately, we in the legal academy must acknowledge that we are exposed to the same form of competition that has lead to the devastation of entire industries. And then act proactively to create an improved educational environment for the legal services industry.

Birth, Maturity, Creative Destruction & Renewal At AALS Clinical Conference

As someone who collaborated on a concurrent session titled “Facing Our Fears in Changing Times” at the AALS Conference on Clinical Legal Education, it’s probably not surprising that I was especially drawn to sessions that brought in models or speakers from other disciplines to provide insight on how to operate effectively in the midst of the current period of change in legal education.

In addition to my last post on Michele Weise’s Closing Plenary, in this and my next two posts, I’ll discuss three other provocative sessions that addressed different aspects of this theme.

On Tuesday morning my University of Washington colleagues Jennifer Fan and Lisa Kelly, worked with Rutgers-Newark’s Randi Mandelbaum and Syracuse’s Mary Helen McNeal to introduce the “liberating structures eco-systems model” of leadership.  That model views organizational change as an  infinity loop in which organizations move through four cycles that call for different styles of leadership:

Stage                                                   Leadership Style

Birth                                                     Entrepreneur

Maturity                                                Manager

Creative Destruction                           Heretic

Renewal                                               Networker

The model suggests that embedded in the cycle are two “traps“:

1. Between the Maturity and Creative Destruction stages lies the Rigidity Trap of “not letting go” of what the organization has birthed and brought to maturity.  Staying stuck in the past and wedded to the old ways of doing things.

2. Between Creative Destruction and Renewal lies the Poverty Trap of “not investing enough to accomplish renewal”.

Sound familiar? The session included an exercise where attendees decided which stage  they perceived their individual clinic, program, institution, or the clinical legal education movement to be in.  Participants  then added on the infinity loop diagram post-its with their results.  Although responses were spread around the loop, most clustered  among Maturity — Creative Destruction — and Renewal.  Most responses addressed clinical programs and law schools.

I find this framework a helpful reminder that our current struggles are “normal” and that they won’t last forever.  And inspiration to let go of fears and rigidity.

I’m grateful to my former colleague Tim Jaasko-Fisher for his work with liberating structures in the Court Improvement Academy of UW Law’s Children and Youth Advocacy Clinic.

Disruptive Innovation & the AALS Clinical Conference

One of the highlights of last week’s AALS Conference for Clinical Law Teachers was the closing talk by Michele Weise, Senior Fellow, Education at the Clay Christensen Institute for Disruptive Innovation. (A big shout out to Michele Pistone for her role in making that talk happen!) I was superficially familiar with the  disruptive innovation thesis, but Weise’s half-hour talk brought to life its relevance to the current moment in legal education in a way that previous exposure had not. Disruptive innovations that shake up a market or industry often follow a predictable pattern, it is argued. The established players in the market target a higher end client base and compete on quality, improving the product and selling it at a high margin.  This leaves a significant, low-end segment of the market unserved. New entrants provide an inferior product to these unserved consumers, and gradually improve the product and expand their market.  Poof go the established players. Think personal computers, print media, digital cameras, mobile phones . . . . Traditional higher education has long failed to reach a significant segment of potential consumers and the federal government’s shift from financial aid grants to student loans has greatly exacerbated that problem. Arguably, the stage is set for disruptive innovation and on-line technology may be the means to that disruption. The next step of Weise’s analysis was what really captured my attention. She noted that higher education currently serves many functions – transmission of content and certification of knowledge or skills; providing a safe space for young adults to mature socially; networking opportunities, mentoring and tutoring; research & dissemination of scholarship. These functions can be – and are being – disaggregated and provided more cheaply on line. Even the Harvards of the world are potentially at risk, according to Weise. Law schools have traditionally provided a generalist education.  As legal practice becomes more specialized, that educational model arguably serves to mask more specialized functions that could be disaggregated.  This is already being tried in my home state of Washington with our new Limited Licensed Legal Technician (aka/ Triple LT) program.  But lawyers also wouldn’t have to be trained as generalists.  As course offerings expand, the potential for moving away from the traditional generalist education does also.  Already,  this shows up in the transcripts of some of my students who are not necessarily taking the doctrinal courses that were considered foundational in my day.  Does this matter? Before hearing Weise’s talk, during the Law Clinic Directors Workshop, I raised the question “how much doctrine do we need to teach?” Good lawyers, I observed,  have extensive doctrinal knowledge.  (Of course, law schools historically haven’t taught doctrine in connection with the experiential anchor points that many of us need in order to retrieve that knowledge for practice.)  Elliott Milstein later challenged the importance of doctrinal knowledge,  observing that his clinic students handle their cases well regardless of whether they have taken relevant doctrinal courses.  Often true.  And yet . . .  The counter-example that I didn’t have a chance to share:  one of my  students  recognized that we could challenge a new unemployment compensation statute on the ground that the subject was not properly included in the title of the legislation.  A classic case of issue spotting that came about solely because he was taking a Washington State Constitutional Law course.  (I didn’t recognize the issue.) A reminder that the ability to issue spot is valuable.  But  . . . state constitutional law isn’t a classic “foundational” “bar course”. This issue spotting was strictly serendipity – a traditional doctrinally-focused course load would not have accomplished this result. I’m still struggling with the generalist/specialist question.  But it leaves me thinking about the potential for niche curricular innovation aimed at students – often older ones who understand their talents, passions and life goals – who come to law school with a commitment to a practice area like criminal law, immigration law, or business law.

  • Are there enough of those students to justify a legal education targeted at those niches?
  • If so, can we focus their education in a way that really prepares them for their specialty?
  • And, can we at the same time identify a “sweet spot” of “just enough” generalist knowledge to accompany that specialization?  One that provides a foundation for passing the bar exam and the analytical and research skills to master new areas of the law, but does not take up the bulk of a three year curriculum?

I don’t know the answer to these questions.  But they strike me as worth investigating.

Teaching Optimism

Chris Rock’s tweet “Are black men an endangered species? No, endangered species are protected by law,” captures at once the failure to apply our laws and when applying them to do so effectively. Scan to the recently released Senate Select Committee’s Study of the CIA’s Detention and Interrogation Program, yet another example of how we struggle as a culture with the rule of law.

How do law schools inspire students to work within a system that yields such results?

The AALS Deans Steering Committee had this to say: “Law school empowers students to become agents of change because it teaches students about the legal system of the United States, a system that has the seeds of change built into its structure.” The statement goes on to say that “The rule of law is the foundation of our society, our political system, and our economic system” and “The primary role of law professors is to teach the next generation of lawyers to think critically about problems, to understand the structure and power of law in our society, and to be thoughtful and engaged with respect to solutions.”[1]

Indeed, critical thinking about legal and other strategies that touch on social wrongs has been discussed in law school classrooms and clinic supervision for decades. However, our legacy is the workarounds and neutralizing of civil rights, workers rights, environmental, and other laws intended to help us solve social ills; the seeds of change have not borne the results expected. Students who are attracted to law school because they see law as a tool for solving problems, soon sense a system that is mightily frayed. As these students navigate the texts and training offered, they struggle with how within our venerated legal system to achieve change that will connect the law to the values they consider essential for a viable society.

Vermont Law School’s curriculum committee just approved a new course called Legal Activism: Lawyering for Social Change designed to expose students to theoretical and practical approaches to legal activism. The course will use Alan K. Chen and Scott Cummings, Public Interest Lawyering: A Contemporary Perspective (Aspen Elective 2012) as its text, taking advantage of the book’s focus on activist lawyers and legal strategies in our history. The impetus for the course was largely the disconnect between the careful web of procedure, precedent and statutes that perpetuate unsustainable results and the desire so many of our students have expressed to find paths that reflect the values they hold.

As law schools consider how to prepare students for the “new normal” (a painful phrase), we must recognize that among them are those who question the very premises of normalcy. Our challenge is to work with these students to foster a sense that they can achieve meaningful results, and that it is not too late to try. Their pursuit of change may test the structure of law in our society and its relevance to the increasingly urgent problems we face. While they may not discover more sustainable results than those achieved by activist lawyers in the past, we will do well to help them envision the possibilities.

[1] See “Statement on the Value of Legal Education,”

Law School Applicants: What Are The Jobs Students Hire Law School To Do?

Following on some recent discussions about disruption and legal education, I’d like to solicit help from the community in determining what are the “jobs to be done” in legal education?

HBS Professor Clay Christensen tells us that a central place to begin an analysis of disruptive innovation is with the question: What jobs do our customers want us to do for them? In other words, what needs arise in our customers lives that they look to us to meet/satisfy?  Here is a relevant article:

I think that once the legal academy gets a good handle on this question, it may help us figure out how to reform legal education in light of the recent dramatic changes in market conditions.

I am still forming my ideas on this, so am looking to start a discussion and for feedback.  The more I think about it, we actually may have to address two questions, one focused on law school applicants and the second on law school students.  Or maybe the law school student questions are a sub-category of the overarching law school applicant questions.  That still needs to be fleshed out.

Here is my draft list of jobs that applicants to law school need to be done (in no special order and some may not apply to every student):

  • I need something respectable to do after college
  • I need to feel good about myself (to feel smart, special, elite)
  • I need a place where I can enjoy spending time with my friends/people who share the same ideas/talents/perspectives as I do
  • I need to become qualified to sit for a bar exam/ to become an entry level lawyer
  • I need to feel part of a larger community/network
  • I need to figure out how to use my gifts/talents for a fulfilling career (I am not a math, science type, so medical school, computer science, engineering, are not for me)
  • I need to find a career that will enable the lifestyle I anticipate for myself and my family

Each of the above needs has sub-needs.  For example: “I need to become qualified for the bar/ to become an entry level lawyer” has lots of sub-needs, such as:

  • I need to learn how to think like a lawyer
  • I need to learn fundamental legal concepts and theories
  • I need to learn the laws and legal theories that are relevant to my field of interest
  • I need to begin for form a professional identity
  • I need to learn the practical skills and professional values of lawyering
  • I need to learn how to conduct legal research
  • I need to learn how to write like a lawyer . . .
  • I need to find a job in my field
  • I need to begin to meet lawyers in the community in which I will work

I realize that many students may not independently identify these are needs.  What does that mean for the “jobs to be done” analysis?  Is education different in the sense that professional students may not always know their needs?  I’d also like guidance on how that is handled in the analysis.

Thanks in advance for any guidance, suggestions, comments, corrections, etc.  I hope that this sparks a fruitful discussion and look forward to hearing your feedback.

Law Practice at the Cusp of Disruption

Colleagues, please read this article by Clay Christensen and his colleagues.  As law professors, we need to understand how the practice of law is changing.  Only if we understand it can we best prepare our students for the world they are entering and will be practicing in going forward.  It talks about the move from BigLaw to NewLaw, and sees more evolution along the lines of Axion, AdvanceLaw, Lawyers on Demand, all within the scope of BigLaw.  

Then let me know what you think in the comments section below. 

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