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.

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.

Law School Curriculum Review & Reform: Lessons Learned

In 2012, my dean asked me to chair a review our curriculum at the University of Tennessee College of Law. He asked our committee to consider the current three-year curriculum in light of our learning outcomes. It sounded like an overwhelming job.

During the first year of our curriculum review, I remember reading the book Reforming Legal Education: Law Schools at the Crossroads. Michael Hunter Schwartz and Jeremiah Ho wrote a great chapter titled Curriculum Reforms at Washburn University School of Law.

I would describe Schwartz and Ho’s chapter in two ways: (1) full of practical suggestions about the process for reviewing curriculum and considering reform; and (2) terrifying.

I stole many of the practical, process-related suggestions from their chapter. We had a committee retreat where we spent an uninterrupted day discussing the curriculum. Committee members went door-to-door and talked to each faculty member about the curriculum and possible changes. The committee developed two proposals for curriculum reform and discussed these proposals with the full faculty. I am sure there are other ideas we borrowed from Schwartz and Ho.

The terrifying part of Schwartz and Ho’s chapter was this line: “[O]ne might conclude that, after nearly three years of work, Washburn’s curriculum reform efforts have been unsuccessful.”

Three years? We may do this for three years and feel it wasn’t a success?

Of course, Schwartz and Ho go on to explain that there were successes in the three-year process. (The Washburn faculty reached a consensus on key issues and made progress toward some important goals detailed in the chapter). But it was daunting for me to think that the process would be difficult and might take three years.

In 2015, the University of Tennessee College of Law faculty adopted a package of significant changes to the 1L curriculum. While the substance of those changes is important, I think it is also important to contribute to Schwartz and Ho’s discussion about the process. So here are a few of the lessons I learned about the process of curriculum review and reform over the past three years.

1) Three Years is a Good Start. When we started, three years sounded like a long time to work on a curriculum review. I now know that three years of curriculum review passes in the blink of an eye. We needed that much time to understand our curriculum, talk to faculty, alumni and students, research what was happening elsewhere, create proposals for change, seek more input, and generate new proposals.

2) Less is More. Our committee accomplished something in three years because we narrowed the focus. Even though our original committee charge was to review the entire curriculum, we ended up focusing on the first year curriculum. That was a more manageable project. Also related to “less is more,” after two years we realized the committee was spread too thin. Our dean originally gave the curriculum review charge to the Academic Standards & Curriculum Committee. For two years that committee juggled the curriculum review and the regular business of Academic Standards. In the third year, our dean created a separate task force to focus solely on the curriculum review. That change made us much more efficient in year three and allowed us to reach a faculty vote on a package of proposals.

3) Seek Input from Faculty, Alumni, and Students Multiple Times, in Multiple Settings. Throughout the three years of our curriculum review, we talked to faculty, alumni, and students. When we met with alumni and students, we gave them the chance to address the room, answer questions anonymously (with clickers), and respond in writing to questions. We often continued these discussions on the phone, by email, and in person. We were able to compile all of this input and share it with the faculty. The committee spent even more time gathering ideas from the faculty in one-on-one meetings, in multiple forums, in small group sessions, and in many informal conversations over the course of three years. Seeking input in all of these settings helped us learn from all of our stakeholders and resulted in a variety of suggestions.

4) Compromise Can Lead to Something Better. Near the end of our second year of the curriculum review, the committee presented the faculty with two packages of possible reforms to the 1L curriculum. Discussing and debating the merits of these proposals helped the committee see potential problems we had missed and opportunities for meaningful change. With that information, we met with small groups of faculty to generate ideas about new classes and other innovations. In these meetings, members of the faculty often suggested they wanted to take the lead in making a change or teaching something new. As the third year came to a close, the faculty approved a package of 1L curriculum changes that was substantially better than what the committee had suggested at the end of year two.

5) Curriculum Review “Success.” Three years ago, it was unnerving to read that Schwartz and Ho thought we might not find curriculum reform “success” in three years. But I now know that is a good thing. Curriculum review and reform does not have to be perfect, because we are never done. Curriculum review should be an ongoing process. This allows us to identify what is working and determine what we will do next as we prepare students for practice.

A 21st Century “generalist legal education”? Skills & professional identity focused.

More musings on generalist v. specialist education, and how much doctrine law schools need to teach.

A conversation with one of our University of Washington alums — Leo Flor, Westpoint grad, Gates Public Service Law Scholar, Equal Justice Works Fellow at Northwest Justice Project, and spark plug for the new resource Representing Washington Veterans  — has me chewing on whether we need a new understanding of what a “generalist legal education” means.

Leo noted that the JD is often viewed as a relevant generalist credential, even though most law school grads move into traditional bar-passage-required “law practice” jobs.  And he observed that many job postings for alternative positions list an MBA or MPA as a relevant qualification, but not the JD.

The traditional generalist education of my era, and to a significant extent still, was intended to teach a set of analytical skills and and expose students to a broad range of legal doctrine potentially relevant to a general practitioner and to passing the bar exam. Though passing the bar remains important and is a significant factor in designing the educational program for lower tier schools, few 21st century lawyers are truly general practitioners.

Perhaps the generalist foundation needed in this era is built on skills, more than doctrinal knowledge.  And for Leo’s purpose not only skills in a technician sense.  Skills also in a “professional identity” sense.  Self-awareness & understanding of ones’ own gifts.  Leadership and interpersonal skills. Such an understanding of generalist could make the JD an appropriate credential for the types of job Leo described.

In a previous post, I suggested that that, at least for those students who come to law school with significant self-knowledge and experience, a substantively specialized curriculum could make sense, if combined with the general analytical and research skills to learn new areas.  This is not a new  idea.  Back in 2002 then-law-student Kevin E. Houchen self-published a detailed review of the trend toward certificate programs and concentrations, arguing that for a subset of students such specialization makes sense.

A decade later in 2012 the New York Times touted  NYU’s  limited moves toward greater specialization not just once, but again in an article  promoting specialization for law schools focused on Biglaw.

And in early May of this year 2015 at the National Summit on Innovation in Legal Services sponsored by the ABA and Stanford Law School, speakers reiterated these themes.   Richard Susskind (13:08) argued that legal education needs to train graduates for 21sth century jobs like legal project managers, legal process analysts, legal knowledge engineers, and legal risk management.  Prof. Deborah Rhode(13.29) observed that it “makes no sense to train Wall Street M &A lawyers the same way we train someone who’s going to be doing routine real estate and divorce work in a small town.”

It is not so very difficult to understand what acting on Prof. Rhode’s observation might mean.  As a practical matter, some curricular differentiation based on where graduates will practice already takes place, linked primarily to  different levels in the law school hierarchy.  Beyond that, many schools offer an extensive enough curriculum – both in doctrine and skills — to permit considerable specialization aimed at traditional law practice niches, even beyond formal concentration tracks and certificate programs.

For more specialized training law schools that offer extensive LL.M. programs routinely allow students to complete an accelerated JD/LL.M in three calendar years.  In the tax field, where the LL.M. has long been de rigueur, many schools provide such opportunities, including NYU, the long-time leader in tax LL.M’s.  And increasingly, schools educate students not just in substantive tax specialties, but also — using my own school, the University of Washington as an example — with  tax-focused skills and clinical training for both JD. and LL.M. students.

My hunch is that increasing numbers of students already opt to specialize, sometimes with a substantive law focus, often combined with a skills focus, e.g.  corporate deals with drafting or criminal & tort law with trial advocacy.

Richard Susskind’s challenge is a bigger stretch for legal education, though, again, some initiatives are visible, such as Michigan State‘s Reinvent Law Laboratory.

A key challenge for law schools is to learn how to identify prospective students or develop admitted ones who understand their life goals and values, and their intellectual and personal gifts well enough to make intelligent decisions around specialization.  To meet that  challenge, a holistic approach to education is needed –whether understood in the MacCrate framework of knowledge,  skills and values, or the Carnegie framework of cognitive, professional skills and ethical professional identity apprenticeships.

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.

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