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Using Capstone Courses to Assess Curriculum
February 22nd, 2013 / By Deborah J. Merritt
We make a lot of assumptions in legal education. One is that our courses teach students the skills and doctrine we hope to impart. But do they? Do our first-year doctrinal courses teach students to read cases and statutes critically? Do our writing courses teach them to communicate effectively in memos and to argue persuasively in briefs? Does an evidence course equip students to identify evidentiary problems, analyze them properly, and offer competing arguments when the resolution is unclear?
There is a way to answer these questions, through assessment of student outcomes. As Andrea Funk and Kelley Mauerman explain in this useful article, this type of assessment focuses on a whole cohort of students, not on a single student. To assess the success of a curriculum (or individual course), we examine whether the group has achieved the skills or knowledge we attempted to teach.
Funk and Mauerman explain this type of assessment, then apply it to the legal writing curriculum at their school. They demonstrate that focusing on a capstone performance (in this case, a final exam administered at the end of a four-course sequence) can illustrate whether the curriculum serves its intended goals. If students don’t perform as well as we want, we can’t blame the students; we need to go back and improve the curriculum.
Funk and Mauerman focus on assessment conducted by a professor (or group of professors) teaching a particular course or sequence. This type of assessment seems like an excellent place to start. Their article, however, made me wonder about assessment conducted by a group of faculty from different parts of the curriculum or–even better–by a group of faculty and alumni. If a group of faculty read selected finals from a variety of first-year courses, selected papers from third-year seminars, or written work prepared in our clinics, would we be pleased or horrified? Would we identify problem areas that we could address?
It would be particularly instructive to look at student papers together with some practicing alums. What would those alumni see in the work product? Could they identify the skills or analytic abilities that matter to them in practice? How well do they think the students are performing on those key abilities?
Assessment is a simple, but powerful, tool. The biggest hurdle may be the first one: motivating ourselves to take a hard, critical look at the success of our classroom efforts. For those willing to take that step, Funk and Mauerman offer a valuable guide to the assessment process.
Unemployed Lawyers
February 20th, 2013 / By Deborah J. Merritt
The Bureau of Labor Statistics (BLS) reports that only 1.4% of lawyers were unemployed in 2012. That’s an impressive figure, especially when compared to an overall unemployment rate of 7.8%. Some law schools point to our profession’s low unemployment rate as a positive reason to embrace law school. Is that a valid way to use the BLS statistic?
No, the statistic is quite misleading when recited without further context. Here is the information schools need to know–and should convey–if they want to use this statistic. First, the statistic includes only people who held a lawyering job before becoming unemployed. That’s why the BLS titles this data series a measure of “experienced unemployed persons.” The statistic does not include people who have passed the bar and are eager to work as lawyers, but who have not yet held a lawyering job. They may be unemployed, but they’re not unemployed lawyers.
Second, the statistic does not include anyone who worked for a single hour during the survey week. The occupational unemployment rates derive from the Current Population Survey (CPS), which surveys 60,000 households each month. The CPS uses a very liberal definition of “employed.” Anyone who receives pay or profit from at least an hour of work during the week is “employed.” A lawyer who was paid for a single hour of document review during the survey week may be strapped for cash and woefully under-employed, but that person is still an “employed lawyer.”
Third, the statistic does not include lawyers who have been unable to find satisfactory legal work and have taken jobs in other fields. An hour of paid work in any job counts as employment for the CPS. A laid-off law firm associate who takes a retail sales job to pay the bills is an “employed retail salesperson” not an “unemployed lawyer.” Ditto for the laid-off lawyers who have taken jobs as high school teachers, realtors, paralegals, or other workers. Even if these employees want to be lawyers, have the training to be lawyers, and would eagerly leave their jobs for a lawyering position, they don’t count as “unemployed lawyers.”
This point is particularly important because job seekers can work down, but not up, the training scale. A worker with just a high school diploma can’t practice law, but a lawyer can do many of the jobs that the high school graduate performs. Similarly, the lawyer can take many of the positions open to other college grads. This is an important part of the reason why people with advanced degrees have low unemployment rates; they usually can return to occupations that were open to them before obtaining the degree. The advanced degree may have little relevance to their employment, but they are not unemployed.
Finally, the BLS count of “unemployed lawyers” includes only individuals who have actively looked for work during the preceding four weeks. Checking newspaper ads or attending training classes doesn’t count as an active job search. This caveat is important because of the number of unemployed lawyers who become discouraged and leave the workforce entirely.
Women are a barometer of this phenomenon; if paid work is difficult to find, they may choose to care for children or other family members instead of pursuing their profession. Unfortunately for the diversity of our profession, BLS statistics show just this trend among female lawyers. In 2000, women constituted 29.8% of all employed lawyers. By 2003, despite more women graduating from law school (and disproportionately male senior lawyers departing the workforce), only 27.6% of employed lawyers were women. The 2001-03 recession pushed more female lawyers than male ones out of the workplace.
Similarly, both the percentage and absolute number of women lawyers has declined recently. After hitting an all-time high of 34.4% of the profession in 2008, the percentage of female lawyers declined to 31.1% in 2012. More than 100,000 women graduated from law school during the last five years, but there are 19,000 fewer women lawyers today than there were in 2008. I don’t know if those women have moved into other fields or out of the workforce, but they don’t show up as unemployed lawyers in the BLS statistic.
In sum, it is technically true that the unemployment rate for lawyers, according to the BLS, is just 1.4%. But that statistic is likely to give prospective law students and others a distorted view of the legal job market. The bare statistic suggests that 98.6% of people who want to practice law, and who have law licenses, are employed as lawyers. That’s clearly not the case. In fact, the same BLS data series suggests that the number of practicing lawyers declined between 2011 and 2012: There were about 1,085,000 respondents working as lawyers in 2011, but just 1,061,000 in 2012.
There are responsible ways to discuss both positive and negative aspects of the legal job market with prospective students. A responsible approach, however, gives context to statistics; it also includes both positive and negative figures that appear in the same data series.
Note: The BLS does not publish the occupational unemployment statistics on its website; that’s one indicator that the Bureau sees limited utility in these figures. But for those who want to see the data for the last ten years, I have PDF copies of the tables.
Analyzing Cases and Statutes
February 16th, 2013 / By Deborah J. Merritt
Whatever else we teach in law school, most professors and lawyers agree that we need to teach students how to analyze cases and statutes. Lawyers must be able to read those key products of our legal system; analyze their meaning; synthesize their rules; apply the rules to new situations; and recognize ambiguities or open questions.
Why do students have so much trouble with these tasks, even in the third year of law school? These are difficult tasks, but they’re hardly insurmountable. Talented graduate students should be able to grasp them in less than three years. The answer, I think, is that we don’t teach these skills nearly as well as we assume. If we really wanted to teach students to analyze cases and statutes, we would adopt different methods. Here are some of my thoughts on that:
1. Modern courses in Legal Writing explicitly teach students how to analyze and synthesize legal materials, but doctrinal courses rarely do. The typical doctrinal course expects students to learn these skills simply by trying until they get it right. Without explicit instruction or individual feedback, students who get the wrong answers in class (or are mystified by their classmate’s correct answers) don’t know where they are going wrong.
2. The right answers in a doctrinal class usually require knowledge of the doctrine–not knowledge of how to deduce that doctrine from a case or statute. Students who are struggling for answers, therefore, usually turn to doctrinal study guides; they rarely seek additional help in analyzing and synthesizing legal materials.
3. Students learn what we test. Although we may say that our doctrinal courses teach students how to analyze legal materials, we rarely test those skills directly. How many doctrinal courses give students a new case or statute to analyze during the final? The Multistate Performance Test does that on the bar exam, but we rarely do it in law school. Our doctrinal courses test students on doctrine and issue spotting (within a defined doctrinal area), not on analyzing or synthesizing legal materials.
4. Thirty-five years ago, students might have had to analyze and synthesize in order to learn the doctrine and issue-spotting tested on exams. When I attended law school (1977-80), Gilbert’s outlines were sold discretely out of a single student’s locker. They weren’t very good, and there were no other study guides on the market. Today, each subject boasts a half dozen or more study guides–many of them quite good. Websites like Outline Depot allow students to exchange outlines keyed to an individual professor’s class. I’ve looked at the outlines for my Evidence class and, again, they’re pretty good. If we test students on issue spotting and doctrine, then it makes sense to study the doctrine and issues that the professor stresses in class. It’s not necessary to analyze and synthesize cases or statutes.
5. Today, when the doctrine is readily available, we tell students that they should read all of the cases and statutes for their doctrinal courses because that’s a good way to refine their lawyering skills. But that’s such an unrealistic path that students quickly tire of it. Many casebooks include just fragments of cases or statutes, so the students learn little about analysis. If cases are drawn from multiple jurisdictions, students don’t learn real synthesis; they learn to synthesize a blended rule from cases handpicked by the casebook author.
Most important, no practicing lawyer would proceed as we suggest. Close analysis of cases and statutes take significant time; a practicing lawyer would save that time for when it is necessary. For established doctrine, the lawyer would rely upon treatises, other authoritative summaries, or her own accumulated knowledge. The lawyer would read only the newest cases and statutes (those that have not yet been fully analyzed) or the ones with potential ambiguities related to her case.
Students quickly grasp that the law school way of learning doctrine, by reading a case for almost every point, is unrealistic. It’s also tedious and unnecessary, so they don’t do it. In my experience, upper-level students read assigned cases or statutes very lightly–if at all. They know that the bottom line holding will be most important for class discussion and the exam; they also know that a quick read, class notes, or a study guide will provide that information most of the time. If the case is a more complicated one that requires close reading, they’ll learn that in class when the professor embarrasses someone through socratic questioning–and the professor will eventually reveal the nuances.
In other words, I think we discourage students from flexing their analytic skills by demanding that performance when it’s not necessary. If we saved case and statutory analysis for the materials that demand close scrutiny, students would be more likely to engage in that process and learn from it.
The number of cases and statutes requiring close scrutiny varies by subject matter. Constitutional law requires close reading of more cases than Evidence does. (I’ve taught both courses, so speak from experience there.) Some code courses require almost daily analysis of code sections, but very little case analysis. We should be careful, though, in assuming that all of our subjects require daily case or statutory analysis; many of them don’t. If we want to hone analytic skills in our doctrinal classes, we could do so more realistically by requiring those skills only for the material that demands it.
6. If we are serious about honing case and statutory analysis in doctrinal courses, we should be willing to give more individual feedback–or to create online modules to do that. Listening to the professor question another student is not a very effective way to learn close analysis. Instead, we could require every student to complete online exercises related to key cases or statutes. Using fairly rudimentary software, we could ask every student to (a) highlight case language that expresses a court’s holding; (b) highlight language that expresses ambiguities or openings for future distinctions; (c) answer questions about how hypothetical problems might be resolved under a case or statute; and (d) point to the specific language supporting conclusions about those hypotheticals. In each case, the software could tell the student what she had gotten right or wrong.
In class, we could discuss more advanced points about these cases or statutes, knowing that each student had read the underlying source closely enough to answer the required questions. We could also discuss points that many students missed, since the software could aggregate those responses. And we could examine the novel insights that some students might have generated. E.g., perhaps one student saw ambiguous language that the professor missed in creating the exercise.
In sum, I think we have a long way to go if we aim to teach case/statute analysis and synthesis in our doctrinal courses. Currently, we teach primarily doctrine in those courses–and there are more efficient ways to teach doctrine than through the case method. If we really focused on teaching analysis/synthesis in some courses, we could teach those skills more efficiently as well.
Guest Contributor
February 12th, 2013 / By Deborah J. Merritt
We’re delighted to announce our first guest contributor, Robert Rhee, the Marbury Research Professor of Law and Co-Director of the Business Law Program at the University of Maryland’s Francis King Carey School of Law. Robert has published an innovative text on Essential Concepts of Business for Lawyers, and comments frequently on legal education. Earlier this year, we wrote about Robert’s proposal to incorporate more Business Education in Law School. Today, he offers more suggestions for the law school curriculum.
Risk
January 29th, 2013 / By Deborah J. Merritt
Education is an investment. Until recently, Americans considered that investment close to fool-proof; almost every degree from a reputable institution seemed to pay off in the job market. With rising tuition and a turbulent economy, however, an increasing number of students understand that education today is like other investments: it has downside risk.
Legal educators often note that law isn’t the only field experiencing high tuition and uncertain job prospects; other graduate programs show the same trends. That’s true, but the question isn’t whether other programs are risky. The question is whether prospective students now perceive law school as more risky than other programs. It’s like the old story about the two campers and the bear. Other graduate programs don’t have to out-run the bear; they just need to out-run us.
The Risks
Here are some of the features that make legal education risky for today’s students. First, we maintain a three-year program. Students can obtain a wide range of master’s degrees in just two years–sometimes less with summer study. Master’s degrees in public affairs, public administration, public health, economics, social work, accounting, international relations, education, computer science, environmental science, and business are just some of the programs that might appeal to students interested in law.
Second, most of our programs are full-time. Part-time programs are much easier to find in many master’s fields, as well as in some doctoral programs. Full-time law students have limited options to earn money while pursuing their degrees; this increases the degree’s cost. Full-time enrollment may also discourage established workers from entering law school. In today’s volatile market, employees may be reluctant to cut ties as thoroughly as law school demands. Three years is a long gap in any employment history.
Third, our tuition is high. Law school costs substantially more than most master’s degrees, even without accounting for the third year. We also cost more than most PhD programs, especially since many doctoral students receive fellowship support or teach while earning their degrees. Medicine and dentistry cost more than law school, but they have much more secure job outcomes.
Fourth, our job outcomes are uncertain. For a worrisome number of graduates, there are no jobs practicing law. This reality emerges, not only from the 9-month employment statistics compiled by NALP, but also from Bureau of Labor Statistics projections. The Bureau estimates that, even if the economy returns to full strength, it will provide legal jobs for just half the number of students that law schools have been graduating.
It is true that some law graduates find satisfying work in fields other than law practice, but graduates of other programs fill those same jobs. Unless one wants to practice law, why pursue a degree that is more expensive and time-intensive than almost any other?
The job uncertainty, furthermore, extends to the type of law that a particular graduate may be able to practice. JDs practice many types of law, but that doesn’t mean that every JD can choose among all those paths. A top student at a top school probably can choose almost any route in law. The options, however, diminish steadily as one goes down the law school and class rank ladder. At least 80% of law students, for example, have no option to practice for an NLJ 250 firm; that’s simply not a choice for these students. The minority who can exercise that option aren’t necessarily the top graduates from the highest ranked schools–although they dominate this group. Some other students have this option because of special talents or background. My point here is that, for the large majority of students, this career path turns out not to be an option.
The same is true of many other legal positions. As the job market has contracted, and as high loans have made public service loan forgiveness very attractive, students can no longer count on careers as prosecutors, public defenders, or other government and public interest lawyers. I have seen excellent students compete desperately for these positions without success.
It’s one thing to choose law school knowing that you’ll accept a modest salary, and repay substantial loans, while doing work you love as a prosecutor. It’s another thing to choose law school knowing that you’ll have high debt combined with an uncertain menu of job choices. What if you invest all that time and money only to discover that your only options are small-firm family law practice or document review? Some graduates might enjoy those types of work but, if you went to law school wanting to be a prosecutor or other trial attorney, the pay off is disappointing compared to the investment.
These risks are particularly severe when put in the context of the overall job market. I recently discussed the changes that technology is unleashing on our economy. Given the accelerating impact of technology, it is hard to predict the parameters or income of any profession ten years from now. Certainly the economy will still support lawyers, but how many will it support? What will most of them do? And what will most of them be paid?
Against that backdrop, a rational college graduate might invest in a shorter, cheaper graduate degree than law. We are accustomed to thinking of the JD as flexible, but that may not be true in today’s economy. High debt alone reduces a graduate’s options. Today’s prospective applicant might think, “I’ll get a master’s degree in X and work in that field for a while. Maybe later I’ll see if law still makes sense.”
It’s hard to think of the JD as a risky degree; in earlier times, it seemed like one of the safest options for a college graduate wanting a professional career. But, if we want to address the dramatic decline in law school applicants, we need to put ourselves in the minds of those applicants. How do the risks of attending law school line up against the risks of other degree programs?
Remedies
Reducing the JD’s riskiness will be difficult, and it will require challenging steps for law schools. The best ways to reduce risk for law students are some combination of smaller class sizes, lower tuition, more part-time options, a shorter degree program, up-front commitments from employers (similar to medical residencies), or “stepped” programs that allow students to obtain a series of degrees enabling them to perform different types of legal work.
I don’t underestimate the difficulty, from a law school’s perspective, of making these changes. It seems, though, that recognizing the riskiness of a JD–compared to other graduate programs and workplace options–is an important step towards reshaping legal education in a way that will continue to attract talented future lawyers. We need to outrun those other campers.
AP Study of the Economy
January 27th, 2013 / By Deborah J. Merritt
As we plan for the future, law schools wonder about general economic trends. Is the economy recovering? If so, will it create more jobs for lawyers? How soon? The Associated Press recently published a three-part series with troubling answers to those questions. You can find the three articles here:
The bottom line from this series: The economy is recovering in some ways, but technology is wiping out middle-class jobs–and is starting to chip away at higher paying jobs as well. Here are some of the facts that the AP researchers cite to support these conclusions:
** 7.5 million American jobs were lost in the Great Recession, and less than half of them have been restored. The figures, however, are even starker for middle-class jobs. Half of the jobs lost during the recession (about 3.75 million) were middle-class ones. Only 70,000 middle-class jobs have been restored.
** Technology has been cutting jobs for more than three decades. The losses started in manufacturing, but have moved aggressively into office, retail, and other service occupations.
** Top companies (those in Standard & Poor’s 500 stock index) earned one-third more profit in 2012 than they did the year before the Great Recession. But by relying on technology, those companies employ a half million fewer workers today than they did in 2007.
** Start-ups are launching with one-third fewer employees than they needed in the 1990s. Technology combined with outsourcing (which is, in turn, supported by technology) allows these companies to thrive with fewer workers. Since start-ups are a major source of new jobs in our economy, this trend is particularly disturbing.
** We are on the brink of even more dramatic workplace changes prompted by technology. Google’s self-driving cars have now logged 300,000 road miles without a single accident. What happens to the middle class when driver-less cars replace truck drivers, bus drivers, and cab drivers? What ripple effects will that technology have on commuters, insurance companies, and countless of other industries? One hint: It may be much easier to resolve insurance claims from driver-less cars because all of the data will be stored.
** Although technology creates new jobs, computers have been eliminating many more jobs than they create. For one measure of this, consider these facts: Three software giants (Apple, Google, and Facebook) together employ only 138,300 people worldwide. That’s less than a quarter of the workers (600,000) that General Motors employed during the 1970s. And GM itself produces many more cars today with only a third of its former workforce.
What do these trends mean for the future of legal employment? I explore some possibilities below.
Direct Client Loss
When we talk about demand for legal services, we often focus on large corporate clients. Those are the ones who pay the highest fees and support the most lucrative jobs for law graduates. But those clients have never supported the bulk of our graduates. According to analyses done by Harvard Law School’s Program on the Legal Profession, only 15% of U.S. lawyers worked in the 250 largest law firms–serving the biggest corporate clients–in 2007. Since 2007, of course, large law firms have downsized; the percentage of attorneys practicing for BigLaw today probably is less than 15%.
Where do other lawyers go? Some work for mid-sized firms, corporations, government, or public-interest groups, but a substantial number work alone or as members of very small firms. According to the Harvard analysis, more than a third (35%) of all lawyers work in solo practice. Those attorneys, as well as many of those practicing in the smallest firms, devote much of their effort to individual clients and small businesses.
The middle class and small businesses once sustained these lawyers–more than a third of our graduates–by paying them to handle home closings, divorces, child custody disputes, criminal defense, consumer issues, wills, probate, business formation, contract issues, small claims, and workplace disputes. That work has already diminished. Middle-class clients and small businesses have balked at the high cost of legal services, turning to pro se representation and online companies like Rocket Lawyer and LegalZoom.
Further shrinkage of the middle class may decimate that group’s demand for legal services. At the same time, start-up businesses that use technology (rather than new workers) for their accounting, human resources, and other support staff, will be increasingly comfortable with online legal advice. The trends identified by the AP study bode very ill for the lawyers who serve middle-class and small-business clients.
Some of these lawyers will find work in the online companies that are seizing this sector. The genius of those companies, however, is that they are able to provide legal services with many fewer attorneys; that is why they cost less. With the middle class contracting, it is very unlikely that this client base will grow sufficiently to support even the lawyers currently serving them–much less new lawyers in the future.
Larger Economic Upheaval
Law schools and their graduates might hope that large corporate clients will take the place of middle-class and small-business clients who no longer want our services. But the experts cited by the AP study suggest that we are in the early stages of a wrenching economic shift. Our largest economic challenge isn’t housing, banks, foreign competition, or the deficit; it’s computers that replace human workers. The accelerating capacity of information technology will displace an untold number of jobs during the next decade. Consider just the dislocation that will occur from driver-less cars, a technology that may secure significant success during the next decade.
The economists interviewed by the AP researchers offered three possible scenarios for evolution of the U.S. economy in the face of continuing technological change. The most positive of these, provided by Nobel Prize winner Joseph Stiglitz, is that information technology will cause the same dramatic upheavals that the industrial revolution generated in the nineteenth and early twentieth centuries. Those dislocations could culminate in a cataclysmic collapse similar to the Great Depression. Stiglitz’s forecast is optimistic only because he sees the economy eventually returning to health, just as the U.S. and other advanced economies did after World War II. He’s clear, though, that we may remain in the current “doldrums for half a decade, for a decade, or for longer.”
Andrew McAfee, a principal research scientist at MIT’s Sloan School of Management, offers a gloomier prediction. McAfee suggests that technology will fuel the growing gap between top-paying jobs and low-skilled ones. Technology will allow a small number of workers to reap greater returns, but it will relegate an increasing number to low-paid jobs or unemployment. That’s bad for the bulk of workers, and it’s bad for the economy as well. Without a large, prosperous middle class, how will the economy keep growing?
The gloomiest prediction comes from former Treasury Secretary Lawrence Summers and software entrepreneur Martin Ford. They envision a future in which a majority of citizens cannot find productive work. Technology will produce wonderful benefits, but humans won’t be able to earn enough to consume those fruits.
Whichever scenario you prefer, the next five to ten years offer lots of economic risk. Some parts of the economy may rebound, but there is likely to be significant economic turmoil. That turmoil will keep corporate employers cautious, pushing all parts of their workforce for greater productivity at less cost. Lawyers are part of that workforce, so we’re unlikely to see any return to the boom times of corporate spending.
Legal Work
The AP series doesn’t focus on lawyers, but technology is affecting our workplaces as much as any other. A lawyer equipped with a computer, internet, electronic databases, and cell phone can work much more quickly than one with yellow pads and a row of hard bound books. For a while, lawyers were able to retain the extra profit generated by those increases in productivity. We could charge our clients more for the same minutes, because we did so much more during those minutes.
But market competition, especially the intense competition spurred by the forces outlined above, has shifted the technology bonus to the consumers of legal services. We now produce much of our legal work more quickly and efficiently–but we must offer it at the same or lower prices. With lawyers doing more in less time, we don’t need as many lawyers. The oversupply of lawyers has further pushed price competition, reinforcing the cycle.
The changes we’ve seen so far, furthermore, are just the beginning. Predictive coding is poised to replace armies of lawyers who now conduct document review. Document automation makes drafting legal instruments quicker and smarter–while requiring fewer attorneys. Richard Susskind’s latest book outlines many of the other changes that technology will bring to the legal community during the next decade.
Conclusion
General economic trends offer little refuge for lawyers or legal educators hoping for a rebound in our own job market. Middle-class clients and small businesses are likely to support fewer lawyers during the coming years. The economy as a whole faces great challenges, so corporate clients will continue to demand more value for money. And technology will do an increasing variety of legal work, displacing more lawyers.
If a computer can make a left turn against oncoming traffic, what other feats can it accomplish? You may think that it’s harder to think like a lawyer than like a driver, but consider the number of datapoints a computer must weigh to make that left-hand turn. Legal judgments depend on identifying data and recognizing patterns; computers have shown their skill at both of those tasks.
I’m not a Luddite: I love computers and all that they have done for us. I wouldn’t halt the march of technology for a minute, and I can’t wait to get one of those driver-less cars. But if we want to plan seriously for the future of law schools and the legal profession, we have to consider the trends documented in the AP study. Through the lens of history, it’s easy to see all of the changes that the industrial revolution wrought. It may be harder to see broad socio-economic forces as we live through them.
Unbottling Legal Education
January 23rd, 2013 / By Deborah J. Merritt
The JD is a terrific degree, but it’s an expensive one. Most students take three full years out of the workforce to earn a law degree; they also pay significant tuition for their education. The shrinking job market has reduced the immediate return on that investment, and no one knows what today’s graduates will face five or ten years from now. A JD costs more, but promises less, than it did a generation ago. College students are responding to that equation; many fewer of them are applying to law school.
Law schools will adopt several strategies to respond to this market shift. Some are increasing scholarship aid, effectively reducing tuition. Others are cutting class size. Still others are increasing the number of foreign LLM students they enroll. Many schools may pursue all three paths.
Relatively few schools, however, have considered “unbottling” legal education. In today’s economy, more workers than ever apply legal rules. Law is so pervasive in our society that it has ceased to be the exclusive province of lawyers. Compliance officers, HR managers, architects, engineers, insurance agents, realtors, mediators, and workers in dozens of other categories use the law. They all need to “think like a lawyer” at least some of the time.
We are legal educators, but we do not try to educate any of these workers. Instead, we deliver legal education in a single, tightly corked bottle: the JD. We do offer LLMs for domestic and foreign students, but most of those programs target students who have already consumed their first law degree. Why don’t we unbottle our legal education and serve some of it to other types of students? Here are five reasons why schools might not have done this in the past, but why we should consider doing so now:
1. We will undermine the demand for JDs. For better or worse, it’s far too late to worry about this now. At one time, lawyers may have been able to restrict the activities of realtors, accountants, HR managers, and other people who use the law, but those barriers fell long ago. As one of many signs of the times, a district court recently rejected the IRS’s attempt to regulate “tax return preparers.” From individual citizens who probate wills with court-published guides, to corporations with hundreds of HR workers, our society is full of people who use the law without lawyers.
Rather than resist this trend (which is irresistible, given the extent of legal regulation today), why not embrace it? Why not provide courses for undergraduates who will work as compliance officers or HR managers? Why not educate citizens on how to complete basic legal transactions? Why not offer specialized courses for engineers, architects, computer software designers, and others who use the law?
2. Thinking about the law is complicated; you can’t teach it in less than three years. If this is true, we’re in trouble as a society. Almost everyone in our law-driven society has to think about the law. Who are we to say that non-JDs are incapable of engaging with the law at any level? There’s no need for every engineer, small business owner, intestate heir, or compliance administrator to synthesize cases or argue before the Supreme Court. But all of these citizens can benefit from some basic education in legal principles and thinking like a lawyer.
We will still educate JDs to analyze the finest points of law, pursue new regulations, and reconcile policies with legal principles. But the market is telling us that today’s society needs fewer JDs and more citizens with some grasp of the law. If we don’t fill the latter need, someone else eventually will. If we’re true educators, we can find ways to teach people what they need to know.
3. Faculty don’t want to do it. This is probably true. Law professors are accustomed to teaching JD students and they like teaching those students. A few hanker to teach undergraduates, but they probably don’t want to teach those students the basics of banking regulation. Soon, though, at least some faculty won’t have a choice. If we want to keep our institutions in operation, if we want to teach any students and do any scholarship, we may need to broaden our educational base.
4. Faculty won’t know how to do it. This is probably also true. For most of these new audiences, the case method and socratic questioning won’t do the trick. Don’t get me wrong: I don’t envision teaching non-lawyers to memorize a few black-letter principles. In any job, the best workers understand why particular rules apply; they know the origin of the rules and their intended purpose; they also have the capacity to identify new situations that fall outside of a prior rule. As legal educators, we should develop those facilities in all students we teach. But we may have to develop new methods and pedagogies for teaching non-JDs.
On the upside, faculty who are willing to invest in these new methods will realize two gains. First, we will educate a much broader base of students–benefiting both those students and our own institutions. Second, we almost certainly will improve the teaching methods we use for our JD students. Although there are many innovators in law schools, we are still quite complacent about our basic pedagogy. Teaching new audiences will challenge us to think about how we teach law and legal reasoning to any audience.
5. The bottle may be emptier than we thought. What if we uncork our JD bottle, look inside, and discover that there’s less in the bottle than we were claiming? What if “thinking like a lawyer” isn’t as distinctive as it was fifty years ago? What if other types of thinking are as important–or more so–in today’s economy? What if it doesn’t really take three years to learn how to think like a lawyer?
These are realistic fears. When I went to law school in the late 1970’s, I thought legal reasoning was pretty impressive. But it wasn’t the only rigorous analysis I learned. As a college senior, I took an economic policy course from Thomas Schelling. That course blew me away; thirty-five years later, I still remember the thought exercises from Schelling’s class. More recently, I’ve been reading the work of psychologists and management theorists. Those experts have some pretty impressive thought systems as well.
As legal educators, our own bottle is far from empty. But today’s market won’t allow us to be arrogant about what we provide. We need to look inside the bottle, candidly analyze the contents, and explore how legal education could serve the needs of students outside the traditional JD class.
Modules: Flexibility
January 22nd, 2013 / By Deborah J. Merritt
Full-time professors tend to like traditional semester courses. Give us a classroom (preferably with a podium and a blackboard at the front); an audience of full-time students; 3-4 credit hours; fourteen weeks of class meetings; and a final exam or paper. Now that’s education!
There’s no doubt that this structure works well for some professors, students, and material. The old-fashioned semester-long course may even provide a useful anchor for education. Perhaps at the beginning of a degree program, such as the first year of law school, students should take some traditional, full-semester courses to build a foundation for more individualized work. There’s also something to be said for students developing a relationship with a few professors over a full semester of class meetings.
But I’m also confident that the traditional structure does not work well for every subject taught in law school. Some insightful instructors are not available three times a week for fourteen weeks out of the year. Some subjects benefit from intense study over a compressed period. Some material just doesn’t generate lively discussion; students can learn it more effectively on their own. In law schools, we try too hard to fit everything into the framework of a full-semester course.
A modular law school would throw off the semester shackles. Some educational experiences might last a full semester–or even a full year. The modular school, however, would assume a different timeframe for most courses. Courses would meet at a large variety of times and places, using many different schedules. Students would assemble their coursework in many more configurations than they do today.
Why would we invite that type of mayhem? I outline some of the pros and cons, focusing on schedule flexibility, below. This post is the second in a series of posts discussing the concept of a more modular law school. For the initial, introductory post in the series, see here. Future posts will discuss modular content; assessments and feedback; cost; and other issues.
Advantages of Modular Scheduling
1. We live in an unbundled, on-demand world. This is a world in which people choose playlists; they don’t listen to songs in the order dictated by an album or radio station. We watch movies and tv programs at the times we find most convenient. We search instantaneously for information when we need it. We read our favorite columnists from multiple media sources rather than subscribing to a single daily paper.
These changes have occurred because customers want them. We value individual control and choice when consuming entertainment and information. The same tastes apply to education. Like it or not, students will increasingly demand more control and choice within their legal education. They will come to law school expecting more nuanced choices than we currently offer, because that is what they are accustomed to receiving elsewhere. To senior faculty, an upper-level curriculum with few requirements may offer boundless choice. For students growing up in today’s world, four courses that each meet for fourteen weeks will increasingly feel like a strait jacket.
2. A modular schedule, as I’ll explore in future posts, may deliver better learning. Modules will require more frequent assessment than semester-long courses, and are likely to provide more feedback. Both assessment and feedback promote learning. Modules will also focus professors on the value of each course component. We’ll have to ask questions like: “Do students really benefit from this three-week portion of my fourteen-week course? Even if they do, would they learn the material better in a stand-alone module, or through a different pedagogy? How do the different parts of my course advance doctrinal learning, thinking like a lawyer, and other practice skills?” Answering questions like these can improve teaching.
I will address modular content more thoroughly in a separate post, but it’s important to note that flexible scheduling need not impair learning; if done properly, it can improve learning.
3. Modular schedules would allow us to draw upon many more instructors. Practicing lawyers rarely have fourteen weeks of quality time to commit to a course–especially when we demand that those weeks correspond exactly to our semesters. Professors in other disciplines may not be able to commit a full semester of time to teaching law students. Many law schools have already recognized this fact and have created “short courses” to accommodate practitioners or professors in other disciplines. A modular schedule would make these courses far more common; in fact, they would become the norm rather than an aberration.
4. Modules could capitalize on learning experiences that don’t fit the traditional semester. Clinics and externships often struggle with the semester framework. Some client matters take less than fourteen weeks; others take much more. Legislatures, courts, and clients operate on different calendars than we do: Their problems don’t emerge neatly in August and conclude just after Thanksgiving. A more flexible schedule would allow law schools to design experiential courses around the experiences themselves.
5. Modular schedules can help students integrate classwork with part-time jobs or externships. The latter experiences are increasingly important for students to finance their legal education or gain workplace experience. The best experiences, however, may conflict with the bulk of law school classes. A modular schedule might allow a student to work full-time in September and October, when an employer has an opening. The student might pursue a single module at night during that time, then stock up on more modules later in the academic year.
6. Similarly, modules could help students who need to attend school part-time. The cost of living accounts for a significant part of law school debt; if students could work during law school, they might graduate with less debt. Even part-time programs are relatively rigid, following semester schedules and often providing much less course choice than the full-time program. A modular schedule would allow employed students to customize their schedule for their particular job. One job might impose heavy demands in April, while another requires extra hours in December. Under a modular schedule, students could choose modules to accommodate those demands.
7. Modular classes can include new types of students. With JD applications falling, law schools are likely to create new certificate, degree, and continuing education programs. Those programs will be most efficient if schools can integrate them with JD classes. Combining different student groups can also pay off for the students: JD students and practitioners, for example, might enroll in a common module. Those students would benefit from the practitioners’ insights, as well as from networking opportunities. The practitioners, conversely, might find that full-time students are stimulating classmates and prospective employees.
Drawbacks of Modular Scheduling
1. Modular scheduling is harder than semester scheduling; it adds pieces to the academic puzzle. Will all professors want to teach Monday through Wednesday during September and April? Will all practitioners prefer to teach on Tuesday evenings in October? Those are nightmares that, as a former associate dean, I can understand. But airlines and other businesses engage in much more complicated scheduling than we do at universities; I suspect we can produce a modular schedule. We may even find that modular scheduling creates fewer conflicts than semester scheduling does. Lots of professors like to teach at 11 a.m. M-W, but they may prefer different months of the year. As we spread the schedule over more hours, days, and months–and engage more different types of instructors–the conflicts may diminish.
2. Full-time, tenured faculty won’t like it. We are all creatures of habit, and full-time tenured faculty rarely have to alter their workplace habits. Changing course schedules, teaching times, and other expectations may be wildly unpopular. Forced change, of course, can be a good thing: In addition to accommodating student demand (or satisfying other institutional objectives), it may encourage faculty to re-examine silent assumptions underlying their courses and pedagogies. But full-time, tenured faculty are unlikely to applaud significant changes in the academic schedule.
3. Some modules won’t generate enough student interest. To accommodate both scheduling and subject preferences, schools may have to offer a large number of modules. Some of these modules will attract only a few students, requiring a decision about whether to cancel the module. Cancellation imposes costs on the students who anticipated that module; it can also impose institutional costs if the school committed to pay the instructor (or to credit a full-time professor for that module). Even if the instructor agrees to teach a different module or at a different time, time is wasted making those arrangements.
4. Expectations may overload students. If modules start at different times and extend for varying periods, instructors won’t know the demands imposed in other modules. What happens if four different modules schedule exams on the same day or during the same week? This happens with semester courses, and both students and professors complain about it. Expectation clashes may be more frequent with modular scheduling–and more complicated because students will enroll in different patterns of modules.
5. Universities may have to adjust their tuition schedules. Some universities charge by the course, others charge by the credit. Modules may not fit comfortably within either framework. If other parts of the university offer traditional semester courses, it may be particularly difficult for law schools to negotiate an appropriate price for their modules.
There is much more, both positive and negative, to say about modules. Stay tuned as I continue to explore this educational framework.
Chief Judge Lippman Wants to Hear More
January 22nd, 2013 / By Deborah J. Merritt
NYU sponsored a public discussion of Estreicher’s “Optional Third Year” plan on January 18. New York’s Chief Judge Lippman, among others, expressed interest in the idea. For a summary of the discussion, see this article in the New York Law Journal.
Modules: An Introduction
January 21st, 2013 / By Deborah J. Merritt
A “modular” education is one in which (1) the institution delivers education in discrete courses; (2) those courses are independent of one another, although some advanced courses may carry prerequisites; (3) teachers assess students at the end of every course; (4) students have significant choice in electing courses; (5) the student earns a degree by passing a specified number of courses, sometimes with particular distribution and other requirements; and (6) a student often may apply credits from one institution toward the degree awarded by another institution.
Sound familiar? It should. Modular education has long been the norm at U.S. universities, including law schools. Universities in other countries, including the United Kingdom, embraced modular education much more recently–with significant culture shock and gnashing of teeth. [For a discussion of that transition, see the interesting article by David Billing, Review of Modular Implementation in a University, at 50 Higher Education Quarterly 1 (1996).]
So what’s the big deal about moving law schools to a more modular system? In a recent paper, Kyle McEntee, Patrick Lynch, and Derek Tokaz advocate a new model of legal education called the “Modular Law School.” Their proposal would make law school more modular by introducing greater flexibility in the length and scheduling of coursework. Modules could last a week, a month, or a semester–although most would last no more than seven weeks. Similarly, modules could meet one hour a week or ten hours a week; schedules would vary to accommodate the nature of the material, the pedagogy, and the instructor’s availability.
Many law schools have already moved in a modular direction. They offer “short courses” ranging from a week to a half-semester; they also schedule courses in different formats. The Modular Law School (“MLS”) builds on these approaches to create a more fully modular system. What are the pros and cons of an MLS?
There is a lot to say about the costs and benefits of a more modular education; so much, in fact, that I’ve decided to create a series of posts on this issue. In upcoming posts, I’ll consider these aspects of a more modular law school:
* Assessments and Feedback
* Curricular Content
* Delivery Methods
* Costs
* Customization
* Coherence
* Experiential Education
* Continuous Improvement
If you’re interested in other topics related to modular education, please let me know. My discussion is modular, so I can easily add to it!
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