Our Authors and Readers Propelled us Into the Hall of Fame! Thank you! Happy New Year.

Web 100 Hall of Fame badge.

As 2018 draws to a close and the new adventures of 2019 are still resting below the horizon, it seems a fitting moment to acknowledge gratefully all those who contribute to making this blog a useful and informative read.  This year,  our thoughtful and insightful authors – please take a look at their names on our sidebar – together with our loyal and well informed readership has earned us a new honor.  As you may remember, for three straight years, from 2014 to 2016, Best Practices was named one of the ABA Journal‘s top law blogs. This year, Best Practices  has been named to the ABA Journal‘s Blawg 100 Hall of Fame. That’s right, we are Hall of Famers!

The ABA Journal noted

‘”At this blog, law professors discuss what skills and qualities—beyond knowing the law—the future lawyers in their classrooms really need and the nitty-gritty of how to teach them. Recent posts discuss suggestions for bar exam reform, approaches to take with Generation Z law students who were raised on the internet, and what law students remember about professors decades later.”

On reflecting on this honor, please bear with me as I take a trip down memory lane to 2007,  over a  decade ago , when this blog was but a twinkle in the eye of the Clinical Legal Education Association’s then named “Best Practices Implementation Committee” (which exists today as the renamed “Best Practices in Legal Pedagogy Committee.”)

CLEA’s Board had commissioned one Professor Roy Stuckey to lead the charge in editing and publishing the original Best Practices  book to be distributed for free (see right sidebar for a free copy) in timely accordance with the publication of Carnegie’s Educating Lawyers: Preparation for the Profession of Law . Together the two books caused quite the stir in the legal academia and presaged the critiques that would come post-recession about the way law schools had lost their way in serving its students and society.  Roy emphasized,  as did the committee working with him, that Best Practices was meant to be an evolving guideline NOT a textualist nightmare.   University of New Mexico Law Professor Antoinette Sedillo Lopez  described  the need for further iterations to flesh out the cultural awareness and competence sections. In response to these and others concerns, Pace Law’s Professor Vanessa Merton suggested the development of a BLOG  as a way to continue the critique and conversation in real time adding acquired knowledge and exploring experiments gone flop!  Albany Law agreed to foot some minor bills and provide some tech support for creating the blog.  I agreed to become editor by figuring  out what a blog actually was!  Hence the Best Practices in Legal Education Blog was born.

The Blog was softly launched in late 2007 with some preliminary posts. The hard public launch was planned to coincide with the January 2008 AALS annual conference in NYC.  New York state law faculty lugged Best Practices books with them to the conference by subway, metro north, Amtrak, cars, buses and feet!  In the main hall of vendors, we signed up folks onto  the blog’s feeburner site (see option on right sidebar!)  and shared a table in the Hall with Equal Justice Works! We also hosted  a birthday celebration for both Roy and Best Practices!  

In 2015,  a second book arrived.  A group of experienced, thoughtful and collaborative women faculty – Professors Deborah Maranville, Lisa Bliss,  Carrie Kass and Professor Sedillo Lopez – engaged in a several year drafting process gathering  newly informed teaching, curricular, extracurricular and assessment insights and innovations. Their book reflected upon and fleshed out original Best Practices principles to guide law schools and legal educators facing new challenges  With the input of hundreds of chapter co-authors, readers and commentators Building on Best Practices: Transforming Legal Education in A Changing World published by Lexis-Nexis has become a desktop bible for many of us.  It is also available  for purchase in e-chapters

In the past decade, this modest little blog has hosted so many talented authors, guest contributors, insightful commentators and the most loyal and passionate readership.  We have been ably assisted by devoted and tech savvy student assistants as well as by fellows Justin Myers and Kevin Ramakrishna .   We would be lost in cyberspace without the tech wizardry and grammarian expertise of nina Roepe.

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We do not intend to rest on our laurels, however! Issues of law, the Rule of Law, and the role of law in supporting a free and democratic society have become more important than ever.  How we teach and who we teach and who does the teaching are ever more important questions – even more so than a decade ago.  Here, on this blog, without a lot of fanfare, or social media confetti, or hysterical tweeting, we can discuss, explore and examine how to proceed to facilitate learning for the budding lawyers who will lead the way forward.  They are eager and they are our hope.

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Experience with Peer Support, Peer Review and Feedback on Teaching?  

We are all familiar with engagement in peer review of scholarship. Law faculty culture prioritizes peer input and review of scholarly ideas and articles. Sending drafts of articles to colleagues for feedback, “workshopping” preliminary ideas, and vetting scholarship is part and parcel of the work we do. We visit other schools, make presentations and attend conferences because we value peer discussion and  input. It is the basis by which we create and communicate knowledge.

I don’t believe, however, we have a similarly pervasive culture for formative peer review when it comes to teaching in law schools, although such culture exists at other higher education institutions. According to The University of Texas Faculty Innovation Center, an academic culture which prioritizes informed peer collaboration, review and input on teaching benefits everyone,

Good teachers continually learn and develop. Peer Review, which combines the examination of course materials with in-class observations and collegial discussion, helps prompt this learning among faculty. Ideally, these interactions and conversations can create opportunities for us as colleagues to reflect on and adapt our teaching practices in order to become better teachers and increase student learning.

Northeastern University Center for Advancing Teaching and Learning through Research recommends a four step process:

  • Initial conversation between the observer and the observed
  • The observation itself as an informal data collection and distillation process
  • Follow-up conversation in which the observer shares the observations and collaborates with the observed teacher in any kind of brainstorming or troubleshooting that the observations invite.
  • Reflective summary written by the observed instructor, integrating what was learned from the process and how this will influence future teaching.

Vanderbilt University’s Center for Teaching includes the goal of “enabling more intentional and mutually supportive communities of scholar teachers.”

It is true that we have made some progress in elevating the role of teaching in law schools in the past decade. Legal Education certainly woke up to the need for a culture change around curriculum and teaching following the publication of Best Practices for Legal Education  and Educating Lawyers.  The economic downturn heavily affected the admission process and the need to focus on student learning. ABA requirements regarding student learning outcomes also redirected attention and resources towards what students actually learn while in law school. Moreover, organized efforts such as the Institute for Law Teaching and Learning  and the AALS Section on Teaching Methods  have converted many to the idea that teaching and learning are matters worthy of scholarship, innovation and peer discussion.  Places like this blog and others support exchange of ideas, methods and innovations.

It is also true that as far back as 2008, pioneering legal scholars Gerry Hess and Sophie Sparrow studied factors which encourage or assist the professional development of law teachers including peer observation. So there are many resources available to improve teaching in law schools. Yet, across the academy, are we truly immersed in a continual process of formative feedback for law teachers? If so, the web shows little evidence of it.

I think some of the culture gap is explained by the fact that historically peer review of teaching only happened during a promotion and tenure process that resulted in an up or out decision by the faculty — hardly a formative approach. A voluntary formative program of peer support and review – not used for personnel decisions – should allay those fears.  Appropriate concerns about interference with academic freedom in the classroom might explain some of the culture gap. Except that, even more concerns about academic freedom arise with respect to peer input into “controversial scholarship,” since draft writings can be more easily captured and reproduced than can observations of a single class session. What I think explains the gap, instead, is that we have not properly trained or equipped law faculty with the tools and methods for conducting and receiving helpful peer observations.

At Albany Law, we have promoted a culture of inquiry around teaching and learning for many years now — colleagues sit in each others classrooms from time to time, our Academic Dean prioritizes teaching support, our Center for Excellence in Law Teaching showcases teaching ideas and invites collegial discussion through teaching workshops, and our Director of Online Learning and Instructional Technology facilitates flipped classrooms and other innovations. What we haven’t done is formalize a voluntary peer support and review program. This year, we are planning to revisit our very loose approach and learn from the ever evolving resources and experimentation of others.

So readers, contributors and chance internet searchers, please post here what if any processes have you implemented to support peer observation of law teaching? Is it a voluntary program as we envision at Albany? How has it worked? Or, if you have an opinion about faculty peer review programs, let us know what you think!

I hope to compile the results and report back later in the year!

P.S. If you are more comfortable with e-mail than a blog comment, feel free to contact me at mlync@albanylaw.edu. 

Blended Learning for Law Schools

I just returned from an inspiring and thought provoking three days at the Wolters Kluwer-sponsored Leading Edge workshop. The gathering of about 35 thought leaders from legal education – a wonderfully diverse group – was structured as an un-conference, so the participants designed the agenda upon our arrival and all the discussions revolved around topics that the invitees chose and facilitated. The topics ranged from assessment to increasing diversity in the academy, to teaching about leadership and cyberlaw, to disruption of law schools (yes, that was the session I lead).

Among the many recurring themes at the conference was online learning, particularly blended or hybrid learning, also referred to as flipping the classroom. Over the last few years, researchers have increasingly confirmed that students learn best in courses that combine online with face-to-face learning. Here, the Mayo Clinic describes the utility of blended learning in the health sciences field. Similarly, the US Department of Education found many benefits of flipping the classroom in its meta-analysis of online learning. These and other studies talk about the many advantages that derive from blending online and in-class instruction.

In the law school context, I made these videos about flipping the law school classroom and blended learning in legal education, in which I talk about how online learning can free up class time for law students to begin to gain exposure to essential lawyering competencies during each course while still covering the doctrinal material that professors hope to assign during a typical semester. Adding blended elements to your courses can be fun and rewarding. Here are some tips for getting started.

Top Five Things to Consider When Flipping a Law School Course

  1. What topics do you want to flip?

Before you begin, identify the topics that you typically cover for which the flipped classroom model would make the most sense in the course.

  1. You don’t have to produce all of the videos.

Don’t be reluctant to assign video content produced by other professors. Like other teaching and scholarly activities, such as writing an effective article, practice guide or even blog post, the production of effective and engaging video content takes time. As a result, I often assign my students to read law review articles and casebooks prepared by other professors. Assigning videos prepared by other professors is analogous. Indeed, by assigning material prepared by others, our time is freed up to spend on more active teaching activities. Visit legaledweb.com for a collection of videos prepared by leading law faculty.

  1. Begin with planning what will be “flipped in” rather than what will be flipped out.

Plan what you want to do with the additional face-to-face time with students that blended learning will afford. This is the point of having a flipped classroom. For example, consider adding new activities into the classroom (such as interviewing, negotiation or drafting exercises) that hone practical lawyering skills and competencies.

  1. Produce chunked, short video content.

Research shows that effective videos do not exceed 5-8 minutes in length, and some are even shorter. Break up a longer subject matter into a few chunked segments, making sure that each video addresses a discreet legal topic. Remember to make the video engaging and to speak clearly and concisely.

  1. Hold the students responsible for watching the videos.

Start each class with an assumption that the students watched the video. That will create an expectation for the group. Start the class by expanding on the videos lessons and assigning activities/discussions that ask students to use the theories learned from the videos actively through role plays, simulations, small group work or Socratic dialogue.

Best of luck innovating legal education. Let us know, in the comment section below, how it goes for you. What works? What could be improved? What insights can you share with the community?

And if you want to learn more about flipping the classroom and other innovations in teaching pedagogy, visit legaledweb.com

 

Is Litigating an Expression of Academic Freedom?

I recommend to you a really thoughtful post on the Academe blog entitled  “Why Litigation is Academic Freedom”  The post addresses the ongoing political attacks on UNC Law School’s Civil Rights Center (Center) and uses an interview with one of our contributing authors, Judith Wegner,  to flesh out the issues.

As Professor Wegner notes,

The Center for Civil Rights (CCR) was founded by distinguished UNC Law alumnus Julius L. Chambers in 2001. Chambers was among the country’s foremost civil rights lawyers, who established a leading integrated law firm, successfully advocated in civil rights cases before the US Supreme Court, served as Director-Counsel of the NAACP Legal Defense Fund, and returned to his home state to lead NC Central University as its chancellor.  He was a brilliant, visionary advocate for justice, and the center is intended to prepare a new generation of lawyers to follow in his footsteps.

The post notes that the Center receives no state funds, but “has received grants from major foundations and partnered with a wide range of organizations.”  Members of the University  Board of Governors make a number of contentions including that “university-associated” centers and/or law clinics should not engage in litigation and that law students associated with public universities should not be engaged in suing state or local governments. Particular members claim that the Center has “a political axe to grind.” 

Wegner deftly explains the importance of Centers, clinics and externships to the education of lawyers and the reason that litigation is exactly what law students should be learning to do!  In addition, she aptly points out that the Board of Governors arguments are

simply another way of claiming that the center should not engage in litigation on behalf of poor and minority clients. These clients are ones who would typically not have alternative options for representation. Limits on the kinds of cases that can be brought by legal aid lawyers, recent cuts in the state budget for legal services for the poor, and threats to funding for the national Legal Services Corporation leave such clients with even fewer options.  

The law school has a diverse range of class offerings that explore all manner of issues from diverse points of view. Indeed, the law school also hosts a Center for Banking and Finance (created at the same time the Center for Civil Rights was created) and a Center for Climate, Energy, Environment, and Economics. Neither of these other centers has been attacked or their activities challenged, nor should they.

Finally, the post encourages those who agree that the attack on UNC Centers and Clinics is politically motivated and a violation of academic freedom to take action:

If I tell you that we are in jeopardy of compromising our integrity and commitment to the state and to the search for truth, please believe me.  And please do something about it.  Write Chancellor Folt, President Spellings, and SACSCOC—again, the emails are: chancellor@unc.edu, margaret.spellings@northcarolina.edu, and questions@sacscoc.org.  Do not be complicit. Stand up for truth and for justice!

Professor Merritt’s Blog post on attorney discipline and bar exam WORTH A READ!

Our blog has often posted about many issues related to licensing lawyers, experiential requirements for admission, the monopolizing power of the NCBE and the pros and cons of the UBE.  Thus, I recommend to our readers an excellent post by our blogger friend Professor Deborah Merritt over at Law School Cafe on bar exam scores and lawyer discipline. Professor Merritt analyzes an article by Pepperdine Professors Robert Anderson and Professor Derek Mueller entitled The High Cost of Lowering the Bar Exam.   Professors Anderson and Mueller opine that “lowering the bar examination passing score will likely increase the amount of malpractice, misconduct, and discipline among California lawyers.” Merritt objects to any causal inference noting,

Two key facts, however, weigh strongly against drawing that type of causal inference. First, as Anderson and Muller point out, “[t]here is virtually no discipline in the first 10 years of practice.” If the bar exam measured qualities related to attorney discipline, one would expect to see disciplinary cases emerge during those 10 years. Wouldn’t attorneys with marginal competency (as measured by the current bar exam) reveal their deficiencies during their early practice years?

Second, attorney discipline almost never rests on lack of knowledge about legal doctrine, poor reasoning skills, or bad writing–the skills currently measured by the bar exam. Levin and her colleagues reported that attorneys most often received discipline for failing to communicate with clients (20.0%), lack of diligence (17.93%), and failure to safeguard client property (11.26%). Only 4.14% of disciplinary sanctions related to “competence”–and even some of those cases may have reflected incompetence in areas that are not tested by the bar exam.

My favorite comment by Professor Merritt provides another example from which we should not infer causality (however tempting it might be to some of us who have been hurt by patriarchy),

We should not exclude individuals from a profession based on qualities that merely correlate with misconduct.

To underscore that point, consider this: The strongest predictor of attorney discipline is the y chromosome. Male attorneys are much more likely than female ones to be disciplined. If we want to use correlations to reduce instances of attorney discipline, it would be much more efficient to ban men from the profession, subject them to special character exams, or require them to achieve a higher bar exam score than women. Those actions, of course, would raise special issues of gender discrimination–but they illustrate the drawbacks of predicting malfeasance based on correlations.

These questions and assumed correlations are important ones. Many defend the decreasing bar passage statistics as appropriate market correction to prevent “undesirables” from entry into the profession — a consumer protection argument. However, as Professor Merritt points out, there is so much more to unpack here. For example, most misconduct challenges occur against solo practitioners or small firms. This raises overlapping socio-economic questions: which lawyers could be perceived as easiest to challenge, which lawyers have the best legal defense teams, and which kind of clients have the most reason to complain.

After teaching for over 28 years and observing which graduates pass the bar on the first try and which do not , I am skeptical of the Anderson-Mueller argument. I would love to see the NCBE and other scholars engage in a socio-economic analysis of bar passage and of disciplinary misconduct.

CLINICAL COSTS: SEPARATING FACT FROM OPINION

by Robert Kuehn,  Washington University School of Law

The late Senator Daniel Patrick Moynihan once observed, “Everyone is entitled to his own opinion, but not his own facts.” When it comes to expanding clinical legal education, the knee-jerk opinion is that it is too expensive for legal education to follow the lead of other professional schools and ensure that every student graduates with a clinical experience through a law clinic or externship. Even the richest law schools couldn’t resist playing the cost card to scare the ABA out of requiring additional professional skills training: “Requiring all law schools to provide 15 experiential credit hours to each student will impose large costs on law schools, costs that would have to be passed on to students. . . . Even a law school with significant financial resources could not afford such an undertaking.” 1

Yet, the facts show otherwise — every school, from the well-heeled to the impecunious, can provide a clinical experience to each student without increasing tuition. Indeed, an array of schools already require 15 credits of experiential coursework (simulations, law clinics & externships) and a clinical experience (a law clinic or externship) for all their J.D. students without noticeable impacts on tuition. At the City University of New York, students must take a twelve- to sixteen-credit law clinic or externship prior to graduation, and at only $15,000 in resident tuition ($24,000 non-resident). Students at the University of the District of Columbia similarly must enroll in a seven-credit law clinic in their second year and a second seven-credit clinic in their third year, paying $11,500 in resident tuition ($22,500 non-resident). Starting with the 2013 entering class, Washington and Lee University requires twenty academic credits in simulated or real-practice experiences that include at least one law clinic or externship. The professor overseeing the program explained that a review of the first few years of the new curriculum showed it is “slightly less expensive than our former, traditional third-year curriculum. And . . . than our current first and second years.”2  Most recently, Pepperdine announced that beginning with next year’s class, students must graduate with at least 15 credits of experiential course work, yet the school increased tuition for 2015 by less than its average increase for the prior three years.

These examples are consistent with studies showing that every school can afford to require a clinical experience for every J.D. student. Continue reading

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.

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