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Inside-Out as Law School Pedagogy
January 3rd, 2013 / By Deborah J. Merritt
Giovanna Shay, a professor at Western New England School of Law transported her law school seminar to a nearby correctional center. Shay’s transplanted seminar on “Gender and Criminal Law” enrolled both law students and prisoners. Both groups studied the same material, wrote papers, and interacted at a class that met weekly inside the prison. Shay based her model on the Inside-Out Prison Exchange Program, which sponsors similar classes for undergraduates and prisoners. Shay’s paper describes the profound impact of this class on her law students, as well as on her overall teaching style.
Skeptical readers may view Shay’s course as a luxury: If we need to pare down the cost of law school and prepare students more directly for practice, why we would let classes wander off into prisons? But Shay’s paper intrigues me for three reasons. First, even as we tailor legal education more closely to law practice, we should still educate professionals who are thoughtful about the role of law in society. The law exerts its greatest force when incarcerating individuals; understanding the impact of that power is useful for everyone who will serve the legal system.
Second, Shay’s technique fits with the concept of “unbottling” legal education. To make law schools more adaptive, we need to think about educating students in many ways, times, and places. Shay’s inside-out may not work for your school, but the concept may prompt other novel ideas. What about a school-sponsored CLE course that takes practicing lawyers into a prison for a seminar like this? That would be less convenient than a talking-head video broadcast, but much more interesting and provocative.
Finally, Shay’s experiment prompts me to think about other ways in which law students can learn alongside other people—raising the educational value for both groups. What about a criminal procedure course that enrolls both law students and aspiring police officers? How about a copyright course that includes both students and writers? Or a small business course for students and entrepreneurs? Those initiatives might raise educational value while also developing new revenue sources–taking some of the pressure off JD tuition.
This is a short essay about an unusual initiative, but it is one that can prompt many outside-the-box thoughts.
Tuition Breaks for Externships
January 3rd, 2013 / By Deborah J. Merritt
I’ve grown to like the idea of workplace externships. Properly supervised, students can learn quite a bit from an externship. Today’s employers undeniably want that type of proven experience in new hires. Working at an externship also puts a student “on the spot” when an employer wants to hire. Externships won’t create jobs, but they may make a school’s graduates more competitive for the ones that exist.
On the other hand, I’m a bit queasy about charging students tuition while they work somewhere else for free. That seems like a negative wage, rather than a minimum one. When an externship constitutes just part of a student’s course load, and the school charges a flat fee for full-time students, the concern is small. It costs the school something to supervise the externship, the student’s marginal cost may be zero, and we don’t differentiate other credits based on the number of students in the class, the professor’s salary, or other cost factors.
But what about externships that consume an entire semester? Or ones that occur during the summer? For these externships, students pay high fees for the privilege of providing free workplace services. Here, as Northwestern’s Dean Dan Rodriguez suggests on PrawfsBlawg, tuition reductions might be appropriate.
Sure, the school will lose revenue from those students but the market is going to force us to reduce the cost of law school attendance in one way or another. We already subsidize lots of law school credits through scholarships. Reduced-cost externships are just another targeted means of reducing tuition–and it’s a mechanism that might prove quite attractive to students.
Suppose, for example, that a school told every student: “We provide one no-cost summer externship to any student who wants one. We’ll help you find a suitable placement, provide appropriate classroom instruction, and award up to 5 hours of credit–all with no tuition charge to you. You can take advantage of this externship opportunity after either your first or second year; joint degree candidates may use the opportunity during any semester of their degree program.”
To me, that seems like an attractive way to discount tuition. It tells prospective students that a school recognizes the importance of workplace experience and will help every student obtain that opportunity. A strong externship program can also complement a school’s career services office: the ties with externship organizations can yield regular placement opportunities. And alumni are likely workplace supervisors, solidifying their ties with the school.
How much would this cost a school? You would have to include (a) the costs of externship supervisors, including the time they would spend identifying good externship oppportunities; (b) any charges the central university would impose on these subsidized credits; and (c) forgone tuition from students who would use summer credits to graduate a semester early. In past years, relatively few students have used summer credits to graduate early, but that number may increase in coming years.
For full-semester externships the calculus is similar–except that the risk of forgone tuition is closer to certainty. Few students enjoy law school so much that they will stay for a seventh semester. Still, as pressures mount to reduce the cost and length of law school, a no- or reduced-cost externship semester could draw students to a particular law school.
What other costs and benefits do you see? Are there other ways to structure externships to serve students and keep down educational costs?
Does Cost Matter?
January 3rd, 2013 / By Deborah J. Merritt
When assembling a faculty, does cost matter? Should law schools consider cost when deciding whether to offer courses through tenure-track faculty, non-tenure-track faculty, part-time adjuncts, or other types of instructors? Or should law schools embrace the highest quality instruction, regardless of cost?
Even posing the question seems silly: Of course cost matters. Cost affects everything, even the availability of lifesaving treatment. Few of us can afford to exalt quality entirely over cost in a purchase. When we do opt for the highest quality in one part of our personal budgets (say housing), we necessarily limit options in other categories (such as entertainment). Law schools face the same constraints: few, if any, schools have the type of resources that make cost irrelevant in choosing faculty.
Law schools, in fact, show considerable price sensitivity when deciding what types of faculty to hire and what kinds of courses to teach. Schools frequently observe that adding clinics is “too expensive” because clinics cost more per student-credit-hour than large doctrinal courses do. The same has been said for legal writing courses taught by tenure-track faculty. The use of low-cost adjuncts and non-tenure track faculty has grown substantially over the last few decades. Law schools have been quite strategic in accounting for cost while building a curriculum.
Kyle McEntee, Patrick Lynch, and Derek Tokaz build on this reality in a recent paper that explores new models of legal education. McEntee, Lynch, and Tokaz (“MLT”) propose that “cost must be a factor” in determining faculty composition and that “faculty composition should be the optimal balance of cost and teaching quality, as analyzed in terms of legal education’s purposes.” The trio acknowledge that scholarship is also important in hiring faculty but, given the high cost of legal education, “it must be subservient to learning outcomes.”
Many faculty will disagree with making scholarship “subservient.” As one of them, I would add scholarship as an independent factor in the balance, saying something like “faculty composition should reflect the optimal balance among cost, teaching quality, and support for ongoing research, as analyzed in terms of legal education’s purposes.”
Some faculty (including me) would add another factor to the “optimal balance”–questions of workplace equity. When composing a faculty, I would consider both positive and negative aspects of maintaining a professorial caste system. Some professors welcome a status that allows them to teach full-time without producing scholarship; others enjoy teaching part-time while pursuing a law practice. But some of these “other status” faculty accept part-time or nontenure-track positions because they can’t find full-time jobs on the tenure track. As employers and professional role models, how far will we go in pushing workers into contingent positions–especially if the workers lack benefits from other employers?
The important point, however, is that cost should count in any decision about faculty composition. Whether the overall calculus includes two factors (as MLT suggest), four (adding scholarship and workplace equity), or some other number, cost is an essential part of the balance. As tenured faculty, we have been very nimble in accounting for cost when it benefits us. We hire adjuncts and non-tenure track faculty to teach courses that we prefer not to teach. We also resist the expansion of skills offerings on the ground that teaching them would be expensive while (we assume) doing little to further the school’s collective scholarship.
We are much less willing to account for cost when that would benefit students by lowering tuition. MLT remind us that we need to look at all faculty expenditures with cost in mind. At many law schools, the number of tenured faculty members has grown significantly over the last decade. Do we really need that many full-time, tenure-track faculty when we balance the cost against both teaching quality and other benefits these faculty may confer?
Before we discuss that question, it seems worth affirming that costs do matter, that schools already make decisions based on cost, and that both students and future clients have a very strong stake in that cost balance.
Incubators
January 3rd, 2013 / By Deborah J. Merritt
Several years ago, my city’s bar association started an incubator program for new lawyers. The program is small, but draws positive reviews from a few graduates I know. More recently, I read that IIT Chicago-Kent’s College of Law had started an incubator for its alumni. This article in the Illinois Bar Journal offers a good opportunity to think about incubators–as well as about the relative merits of incubators housed at law schools or in the community.
The Chicago-Kent incubator currently hosts five new lawyers, all of whom graduated from the school. The lawyers receive free office space, along with access to copiers, the school’s law library, and Westlaw/Lexis subscriptions. Clinic faculty mentor the new lawyers and can also refer cases to them. In return, the incubating lawyers donate up to ten hours a week helping the clinic with its cases. An incubator lawyer, for example, might handle a status call that the clinic students are unavailable to cover. The new lawyers also pay for their own malpractice insurance.
Incubators, whether housed in a law school or practice community, have several attractions:
(1) They provide a safety net for new lawyers who want to establish a solo or small practice. Law faculty or practitioners can help the new lawyers handle unfamiliar challenges. Some incubators also develop regular programming to instruct participants in ethical issues, office management, marketing, and other matters.
(2) The incubator reduces overhead costs for fledgling lawyers. Universities and bar associations often can provide heat, light, libraries, and other amenities at lower cost than the lawyers would find on the market. In at least some cases, the incubator provides these services free–drawing upon excess capacity or altruistic motives.
(3) By training lawyers for effective small-office practice, the incubators may help create competent, reasonably priced providers for low- and mid-income clients. Many incubators complement this public purpose by requiring participants to provide some pro bono service during their time in the incubator.
(4) Lawyers won’t make a lot of money while practicing in an incubator, but they’ll make more than they would as volunteer interns. Incubators give new lawyers a chance to develop some practice skills–which they may be able to market to larger firms, government, or corporations–without forfeiting all income.
But, of course, there are downsides:
(1) Incubators will do little to expand the number of clients who can pay for small-office legal services. Incubators can train lawyers, but can they produce enough paying clients to sustain the lawyer in the long run? Will the incubator graduates simply compete with other solo practitioners for a dwindling number of paying clients?
(2) By the same token, incubators won’t solve the problem of unmet legal needs–unless they help lawyers develop ways to deliver legal services at lower cost. The American public doesn’t suffer from a lack of lawyers; it suffers from a lack of lawyers who can afford to deliver services at rates the public is willing to pay.
(3) If solo practice won’t sustain incubator graduates, they may seek work with other employers. But will larger firms, government agencies, and corporations value the work performed in incubators? Employers seem to give less weight to clinical experience than their demand for “hands on” training would suggest. Will they adopt the same attitude toward incubator experience? Will the incubator work prove worthwhile only for jobs in the same legal field?
What about the differences between law school incubators and practice-based ones? A law school incubator can strengthen bonds among current students, alumni, and faculty. If a clinic has strong community connections, it may also be able to feed the incubator clients, benefiting both those clients and the new lawyers. Clinical law faculty are accustomed to mentoring new lawyers; working with recent graduates builds naturally on work with current students. For the school, there is also the attraction of benefiting its own alumni–and enhancing their employment outcomes.
On the other hand, some law school mentors may lack knowledge about issues that matter to new solo practitioners. Many clinics provide free legal services and benefit from university-provided facilities. Do faculty in these clinics have sufficient experience with budgeting for a small office practice, marketing their services, developing client bases, setting fees, and collecting payments from clients? On some of these issues, and depending upon the school, new lawyers might receive better mentoring from bar-hosted incubators. A bar-based incubator can also create important bonds within the legal community; larger mentoring relationships might grow out of the incubator.
The biggest question for all incubator programs may be: Can schools or bar associations take these programs to scale, so that they benefit more new lawyers? If not, what lessons can incubators offer other organizations that mentor new lawyers? Can the incubators teach law schools or employers how to better educate lawyers?
Innovate for What?
January 3rd, 2013 / By Deborah J. Merritt
Why are students, alumni, and practitioners pressing law schools to change? Why are schools considering innovation? As we talk about change, we need to focus on the problems we’re trying to solve. Here are the major problems that I believe face legal education. In this post, I don’t attempt to substantiate the problems; plenty has been written elsewhere on these issues and we can talk about them more as the discussion unfolds. For now, I want simply to identify the problems that may drive proposals submitted to this site.
(1) The cost of attending a full-time JD program is too high for most students. “Too high” means both that some students are discouraged from attendance and that others find the return on their investment too low.
(2) Law schools are graduating many more JDs than traditional law practice can absorb. That has been true for at least the last four years, and expert predictions suggest that the surplus will continue.
(3) JD graduates are not trained in the ways that today’s marketplace demands. There are a variety of ways to address that problem: Schools could change, employers could change, or some other magic could occur. But the misfit seems clear.
(4) An increasing number of non-lawyers use legal principles quite effectively. Law schools have ignored this trend, which contributes to problem (2) and raises a separate question about schools’ educational mission. Should law schools attempt to educate this broader pool of workers? Addressing the overlap between law practice and law-related fields would also help schools understand the role of “JD Advantage” jobs for law graduates.
(5) A large number of citizens continue to lack basic legal services–but we cannot address that need by continuing to produce conventionally (and expensively) trained JDs who practice in customized (and expensive) ways. New technologies and management techniques now support cheaper delivery of high-quality legal services, but law schools don’t educate students to practice with those tools. Nor do most schools play an active role in exploring new means of delivering legal services.
(6) Law schools are not providing honest, thoughtful information to prospective students. Despite recent gains in transparency, schools are still inclined to market to consumers rather than engage future professionals. This distorts decisionmaking among prospective students and sets a tone for sharp practices rather than professionalism among lawyers.
(7) The federal loan system seriously distorts the market for legal education. Schools didn’t create the system, but they can work to reform it in ways that benefit students, prospective clients, and taxpayers. As professionals, schools have an obligation to respect those interests.
I welcome your reactions to these problems, as well as additions to the list.
Welcome to the Law School Cafe
January 3rd, 2013 / By Deborah J. Merritt
Law School Cafe is a resource for anyone interested in reshaping legal education. Here is the basic information you need to use the site:
Cafe Tables
The site’s main page includes a series of posts called “Cafe Tables.” Each table focuses on a particular proposal for change. Some innovations are small, others are large. We draw these proposals from many sources: published papers, other websites, formal comments submitted to the ABA’s Task Force on the Future of Legal Education, and personal conversations. If you have a proposal, please let Deborah Merritt (the cafe manager) know at merritt52@gmail.com. We will be starting new tables regularly.
Each table includes a brief description of the proposal, links to sources, and observations or questions to start the conversation. The comment threads are open: We invite you to offer your reactions, critiques, and ideas for improvement on each proposal (but please read the “Comment Policy” below). The tables offer a way to explore the pros and cons of each proposal, as well as to refine ideas.
If you have experience with a proposed change, or would like to offer an extended comment, please let the cafe manager know (again, that’s merritt52@gmail.com). You can create a “perspective” post for a table, which will appear on the main page together with the original post. The perspectives allow further development of ideas.
Book Club
The Book Club complements the Cafe Tables by offering brief summaries of recent papers or books related to legal education. These pieces don’t always propose specific changes, but they offer useful insights to the problems facing us. Comments are open here as well, so feel free to post your reactions.
Comment Policy
To facilitate discussion in both the Cafe and Book Club, comment threads are open; we do not moderate comments before posting. But we will delete comments in which obsessive whining, trolling, or name calling substantially outweighs probative value. Cf. Federal Rule of Evidence 403.
Cafe Manager and Contributors
Deborah J Merritt manages the Law School Cafe; she is the site’s primary moderator and contributor. DJM is also the John Deaver Drinko/Baker & Hostetler Chair in Law, at Ohio State University’s Moritz College of Law, but the Cafe is an independent project. Deborah has written about many facets of legal education, teaches in both doctrinal classrooms and clinics, and has developed a seminar on the Business of Law.
Kyle P McEntee, the Executive Director of Law School Transparency, is the Cafe’s co-moderator, frequent contributor, and website designer. The Law School Cafe is a partner site of Law School Transparency.
Law School Disruption
December 28th, 2012 / By Deborah J. Merritt
Campbell explores two disruptive forces undermining conventional legal education: new educational models (particularly online learning) and the expanding provision of legal services by non-lawyers. On the first, he asks: “What do universities sell for their tuition dollars in a world where world-class instruction is free?” On the second he notes: “Amazon has not succeeded in monopolizing book sales, but it took enough away so that Borders was no longer a profitable business.”
Law professors often scoff at these predictions of disruptive change, but the forces that Campbell describes are real: It is time to pay attention. Campbell offers a useful introduction to the major disruptions threatening legal education. He also offers a short description of his home institution, the innovative Peking University School of Transnational Law. Expect to hear more about a law school that graduates bilingual (English/Mandarin) lawyers ready to counsel clients on both U.S. and Chinese law.
Continuing Practice Experience . . . for Professors?
January 4th, 2012 / By Deborah J. Merritt
Emily Zimmerman, an associate professor at Drexel’s Earle Mack School of Law, proposes that law professors should fill “continuing practice experience” requirements. In an SSRN paper, Zimmerman notes that “many of the people who are entrusted with preparing students for law practice are people who may not actually have practiced law, who may only have practiced law for a short amount of time . . . , or who may not have practiced law recently.” (p. 7) Zimmerman acknowledges that these professors may “do an excellent job of helping students develop some of the skills that they will need to be successful lawyers.” But is that enough? Shouldn’t law schools strive to give students the best possible education for their role as lawyers? To accomplish that, Zimmerman argues that full-time faculty should enjoy more regular connection to the world of practice.
Modeling her proposal on CLE requirements, Zimmerman suggests that professors devote 10-15 hours a year to “law practice.” To give professors more flexibility, and to allow more in-depth engagement, a “CPE” requirement might mandate 30-45 hours of practice every three years. The activities fulfilling this requirement could range from actual practice (for paying or pro bono clients) to shadowing active lawyers and participating in bar committee work. Professors without active licenses, including those without law degrees, could participate in some of the latter activities.
Turning her eye to enforcement, Zimmerman outlines a variety of ways to impose a CPE requirement: Individual schools could adopt such a requirement for their professors; the ABA could revise its standards to require or encourage CPE; and/or the AALS could include CPE in its Statement of Good Practices.
Zimmerman’s brief paper offers a thoughtful suggestion for cultivating an ongoing connection between law schools and law practice. Professors might, as she notes, resist a CPE requirement; it might also degenerate into a loophole-ridden rule or another series of talking-head seminars. But Zimmerman’s core idea holds strong appeal. If law professors ventured into practice for at least a few hours each year, they might see their teaching and scholarship through new eyes. At the very least, they would see some of the market pressures that their graduates face each day.
About Law School Cafe
Cafe Manager & Co-Moderator
Deborah J. Merritt
Cafe Designer & Co-Moderator
Kyle McEntee
Law School Cafe is a resource for anyone interested in changes in legal education and the legal profession.
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