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.

Teaching Legal Reasoning More Efficiently?

Teaching the traditional analytical skills more efficiently and effectively could provide a much needed opening for broadening the range of skills taught to all law students. In the legal academy’s version of the “socratic method”, law teachers historically taught the analytical skills” implicitly”. They demonstrated legal reasoning by pushing students away from their raw intuitions of fairness and justice to articulate rules and exceptions, while attending carefully to the inevitable ambiguities of language.

Some law teachers suggest that the process of learning to “think like a lawyer” fundamentally requires time and practice and therefore cannot be significantly speeded up.

Yet the implicit approach has been repeatedly challenged by scholars seeking to teach legal reasoning more explicitly, by naming and explaining how it works.*  (An obsession with the goal of teaching legal reasoning more efficiently was a major thread in two phases of my own legal career when I taught first year civil procedure. I struggled both to teach skills more explicitly and to provide students with opportunities to practice them.)

A recent contribution to this quest by my colleague Jane Winn grows out of her experiment teaching common law legal reasoning to undergraduates. Students were randomly assigned to use either a well-regarded study aid, or Winn’s own materials. The materials were also leavened by her own and colleagues’ experiences teaching foreign LL.M. and J.D. students coming from legal systems growing out of the European continental legal tradition.

Winn’s effort, aimed at law students, is notable in three respects. First, at twenty-nine pages it fills an intermediate-length niche: longer than a typical class “handout’, but shorter than the various book length alternatives. Second, it covers case briefing, outlining and exam questions, demonstrating how the three are related. Third, it grew out of an attempt to test her teaching method empirically using random assignment to a control group. Both law students and legal educators should find it a useful contribution.

The 2015 ABA accreditation standards may provide a laboratory in which to test efforts such as Winn’s. Standard 302 now requires law schools to adopt learning outcomes that, under subsection (b), must include legal analysis and reading; Standard 314 requires law schools to provide students with both formative assessment (feedback) and summative assessments (final “grades”); under Standard 315 law schools must engage in “ongoing evaluation of the program of education, learning outcomes, and assessment methods”. At its best this combination of more intentionally articulated outcomes, feedback to students, and program evaluation could prompt law schools to evaluate the potential for greater efficiency and effectiveness in teaching legal reasoning. I remain hopeful that enough schools will approach this task rigorously and in good faith that at least some progress can be made.

*Winn’s illustrious predecessors include:

  • Leading Legal Realist Karl Llewelyn, whose The Bramble Bush: Classic Lectures on Law and Law School have been assigned to generations of law students;
  • University of Chicago Professor and President and U.S. Attorney General Edward H. Levi, author of An Introduction to Legal Reasoning, originally published in the University of Chicago Law Review and then in book form;
  • Critical Theorist and Harvard Professor Duncan Kennedy, who took the decidedly un-Harvard step of visiting at New England School of Law in his attempt to reach beyond elite students and sharpen his skill at teaching students about the “gaps, conflicts and ambiguities” that underlie the development of the common law. He shared his insights widely with former students moving into teaching careers. produced a short volume
  • My former colleagues Pierre Schlag and David Skover, who produced a short volume early in their careers that catalogued the Tactics of Legal Reasoning (1985).
  • Richard Michael Fischl and Jeremy Paul, Getting to Maybe: How to Excel on Law School Exams (1999)
  • Leading clinical teachers Albert J. Moore and David Binder, Demystifying The First Year of Law School: A Guide to the 1L Experience (2009)

In recent decades much of the heavy lifting in legal reasoning has devolved upon teachers of legal analysis, research and writing. Among the results is a burgeoning literature proposing variations on the syllogistic Issue-Rule-Analysis (or Application)-Conclusion approach to analyzing and writing about legal problems, as well as a variety of textbooks.

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Unmasking Assumptions about Employment Outcomes and Legal Education

In an upcoming Wisconsin Law Review article, Robert Kuehn, Associate Dean for Clinical Education and Professor of Law at the Washington University Law School, presents a cogent, well-supported and thoughtful article describing the limitations of and lessons we can learn from the existing empirical analysis correlating student enrollment in clinical education and employment outcomes.  Kuehn’s article, entitled Measuring Legal Education’s Employment Outcomes is particularly powerful because it provides a thorough empirical rejection of the claim that clinical coursework might actually harm employment outcomes, as asserted by Professor Jason Yackee and which attracted some sound-bite attention earlier this year. In what is, perhaps,  an unexpected twist, Kuehn demonstrates that using Yackee’s statistical assumptions and methodology also would produce negative correlations for those students who participate on law journals or in moot court competitions.  Kuehn argues that one can’t draw any reliable conclusion from Yackee’s 2013 model, and perhaps not from any nationwide statistical model – as opposed to a particularized analysis of one school –  on the likely effect of clinical courses (or other activities like law journal or moot court) on employment, and surely not the negative effect Yackee posits. Kuehn points out that as to clinical coursework, the available evidence (through surveys) indicates that such experiences do aid some students in securing employment.

If you, like me, still become a bit nervous about how much you actually remember from undergraduate statistics courses, do not be alarmed by this post!  You will find Kuehn’s article accessible and a quick good read, even when he is using words like “regression analysis,” “granular data” and “variable choices.”   Here are the points made in Measuring Legal Education’s Employment Outcomes which I found most helpful:

  1. Kuehn’s reminder that when one confuses correlationwith causation one is bound to come up with a “misdiagnosis.” One problem with Yackee’s analysis is the lack of granular data to calculate the true employment rate for those who took a clinic (or who did not).  In fact, the data is so poor that “the results never account for more than half of the variability in employment across schools.”
  2. Kuehn’s explanation of the “confounding effect of prestige” and bar passage on employment outcomes.
  3. The problems of validity and reliability raised by analyses which employ information from ABA questionnaires, particularly those self-reports submitted prior to 2014.
  4. The fact that “13% of law schools” provide 80% of the school-funded jobs to law graduates. Not surprisingly, Kuehn found this factor biases many results if you examine nationwide statistics. And when Kuehn removes those jobs from the statistical analysis, Yackee’s correlation with clinical education falls apart even using his own assumptions and methodology.
  5. Yackee’s model yields completely different results if one uses the US News Lawyers/judges data versus academic peer data to control for the possible influence of perceived prestige.
  6. Application of Yackee’s model to “Law Journals” and “Skills Competition” and S. Newssub-groups also show no relationship to employment outcomes!
  7. In Yackee’s model, a better ranking is “strongly associated with improved employment outcomes.” However, Kuehn points out that a “closer examination of the relationship between rank and employment indicates that this positive association, although statistically significant when applied across the entire range of top 100 schools, does not hold true for schools ranked 51 through 100 (emphasis added).” 
  8. Kuehn’s documentation of employers who require, “strongly prefer” or identify law clinic experience as a positive factor in hiring such as The U.S. Department of Homeland, legal services and  legal aid offices, district attorney, public defender, fellowships and private law firms.
  9. Kuehn’s description of National Association of Law Placement (NALP) existing information: such as the  2011 survey of lawyers with non-profit and government offices;  the NALP survey of lawyers in firms of predominantly more than 100 attorneys; the NALP survey of public interest legal employers;  and the NALP 2013 presentation on the employment market reporting that ” law firms say they want new graduates to have ‘more experiential learning, client-based and simulation.”
  10. Kuehn provision of good information on other employer information such as the Lexis-Nexis WHITE PAPER: HIRING PARTNERS REVEAL NEW ATTORNEY READINESS FOR REAL WORLD PRACTICEProfessor Neil Hamilton’s employer survey to determine the relative importance of twenty-one different competencies in employer hiring decisions, and Professor Susan Wawrose’s legal employer focus groups which found employers prefer new hires with ” well developed professional or ‘soft skills” along with “strong fundamental practice skills.”

Professor Kuehn concludes by recommending that studies could best be done on a school-by-school basis by “surveying likely employers to find out what educational experiences of students are most valued.”  Professor Kuehn also recommends that schools could also “retrospectively look at various employment outcomes for graduates and any relationship” to students’ experiences while in school.

I agree with Professor Kuehn and am happy to report that  Albany Law School,  through its faculty Assessment committee and Admissions office,  is currently engaged in conducting employer focus groups and analyzing what best helps our students obtain employment in their desired career paths.  Until good data and information suggests otherwise, Professor Neil  Hamilton’s advice to law students,which Professor Kuehn quotes in his “must read” article, bears repeating:

In this challenging market for employment, a law student can differentiate herself from other graduates by demonstrating to legal employers that the student both understands the core competencies that legal employers and clients want and is implementing a plan to develop these competencies, including an ability to demonstrate that the student has experience with these competencies.

What’s going on in California? “TFARR- recommended” 15 credits of competency training

For those who did not closely follow the California State Bar debate on the requirement of 15 credits of competency training for bar admission (the work of the Task Force on Admissions Regulation Reform, or “TFARR”), I summarize the current status.  (Although I am currently co-prez of the Clinical Legal Education Association, known as CLEA, this post is not written with that hat on.)  This is my own thinking, albeit, informed by the excellent work of the CLEA Advocacy committee.

The TFARR process was two-staged, over a three year period, with opportunities for public comment throughout. CLEA  participated in that process and submitted five separate comments on the proposals that are available at http://www.cleaweb.org/advocacy under “Briefs and Other Advocacy” (documents 4-8).

In the end, TFARR recommended 15 credits of competency training which can be achieved in a variety of ways (in addition to how experiential credits can be earned under the new ABA regulations), and which include six credits of summer work. You can read the TFARR Phase II Final Report  at: http://www.calbar.ca.gov/AboutUs/PublicComment/Archives/2014PublicComment/201411.aspx

The process was complete in November, 2014, with final TFARR recommendations to the State Bar Board of Trustees (that responded to public comments) and unanimous adoption by the Board: http://board.calbar.ca.gov/Agenda.aspx?id=10891&tid=0&show=100008800&s=true#10013881 (agenda item 113). The TFARR Phase II FInal Report represents a compromise based on extensive input.

Lately, some confusion has arisen because of a letter posted to the AALS website authored by a non-standing committee of Deans.  The confusion arises because:

  1. Neither AALS nor this special Dean’s committee ever participated in the two stage TFARR process and so appear to be sort of “johnny come latelys, ” and
  2. The letter mistakenly focuses on an earlier draft of the final proposal failing to recognize the compromises already reached in the final proposal.

I understand that there are efforts underway to correct the confusion which makes me happy since the Deans’ letter is signed by two people whom I have long admired in a variety of contexts.

Other blogs are already exploring the 15 credit  proposal and its interesting and creative approach. For example,   “Kudos to California”  What do our readers think?

Building on Best Practices now available as eBook

Are you trying to:

  • Develop a meaningful law school mission statement?
  • Understand new accreditation requirements, learning goals, and outcomes assessment?
  •  Expand your experiential offerings?  Decide whether to use modules or courses?  An on-site clinic, an externship, or community partnership?
  •  Teach ALL of your students in the most effective ways, using a full range of teaching methods?
  • Add to your curriculum more of the professional identity, leadership, intercultural, inter-professional and other knowledge, skills, and values sought by 21st century legal employers?
  • Lead thoughtfully in the face of the challenges facing legal education today?

These and other topics are addressed in Building on Best Practices:  Transforming Legal Education in a Changing World,  now available in ebook format from LexisNexis at no charge.

The print version is not yet out.  LEXIS-NEXIS is taking advance orders for $50, plus shipping.  BUT we understand that they will make one copy available to every US legal educator for free upon on request.  Details on this and international availability still to come.

Thanks, and congratulations, to book project sponsor Clinical Legal Education Association (CLEA), the more than fifty legal educators who participated as authors, and the countless others who assisted as readers and in numerous other ways.

And, a huge shout-out to my wonderful and talented co-editors, Lisa Radke Bliss, Carrie Wilkes Kaas, and Antoinette Sedillo Lopez.

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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