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The Strange Case of the Case Method
June 29th, 2018 / By Deborah J. Merritt
The case method is legal education’s signature pedagogy. Law professors point to the method with pride, and that pride has considerable foundation. In theory, the case method accomplishes at least five pedagogic goals:
- It demonstrates that law is not static; law evolves through judicial interpretation. On some topics, students also see how the law evolves through legislation and administrative regulations.
- It teaches students how to read and synthesize judicial interpretations. Depending on the subject, students also learn how to read statutes and harmonize them with judicial opinions.
- It prepares students to advocate for changes in the law–primarily in the courts, but with some approaches that can be used with legislators and other decision-makers.
- It develops critical thinking skills (careful reading, analogical reasoning, identification of patterns and distinctions) that are transferable to many other contexts.
- It instructs students on the doctrinal principles discussed in the cases and accompanying statutes.
Can the case method accomplish all of these goals–especially when it is used in a large classroom with a single end-of-semester exam? I doubt that the method ever achieved as much as it claims, except perhaps for the highest achieving students in a classroom. Today, the method has been quietly subverted to accomplish primarily the fifth goal: instructing students on doctrinal principles. Law schools stake their value on teaching the other four cognitive skills listed above, but we deliver less of that learning than we believe. (more…)
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The Justice Chasm
June 17th, 2018 / By Deborah J. Merritt
The justice gap has become a chasm. Almost one-fifth (19%) of Americans now live in poverty or near poverty (p. 16). These low-income individuals collectively experience about 140 million civil legal problems a year (p. 14). Fifty-five percent of those problems affect the individuals “very much” or “severely” (p. 23): that’s 77 million serious problems a year. Yet these individuals receive legal assistance for only 30% of their serious legal problems (p. 35). Our legal system fails to address some 54 million weighty legal problems a year–and that doesn’t count the unaddressed legal problems of middle-income Americans or small businesses.
Pro bono services won’t bridge this gap. There are only 1.34 million active attorneys in the United States. Even if every one of us provided pro bono services to low-income clients, we would each have to handle about 40 pro bono civil matters a year. That’s in addition to the pro bono criminal, appellate, and law reform matters some attorneys already pursue. And each of these 40 matters would affect a client “very much” or “severely.”
Practicing lawyers will not–and probably cannot–serve 40 pro bono clients each year. Salaried lawyers cannot take that much time away from their assigned duties; struggling solos cannot afford to offer so many unpaid services. Equally important, many lawyers lack lack expertise in the practice areas that affect low-income clients.
Nor will taxpayers plug this gap. The Legal Services Corporation and other legal aid organizations suffer chronic under-funding. Indeed, they regularly combat political threats of extinction.
What’s the solution? Can the United States create a justice system that more fully meets the needs of its people? Or will we continue to maintain a system that, while delivering high-quality services to wealthy individuals and big businesses, offers little help to those who cannot afford the price tag of legal assistance? (more…)
Daniel Cameron Merritt
June 14th, 2018 / By Deborah J. Merritt
My beloved son Daniel died in January from complications of pure autonomic failure, a rare neurodegenerative disease. Dan suffered from his illness for more than a decade; he fought his pain and disability with a lively mind and love of other people. Dan was particularly interested in legal education and the legal profession–he often contributed ideas to this blog and corrected my mistakes before I posted.
Daniel also coauthored three articles with me. He was a genuine contributor to each of those pieces. In fact, after we published the first one, my father (a law professor) called me to say, “this is the best article you’ve ever written!” Clearly Dan’s influence had an impact.
In Daniel’s honor, here are recaps of the three articles we wrote together. I treasure the memories of writing them, as well as the ideas we proposed. (more…)
Professional Skills
May 2nd, 2018 / By Deborah J. Merritt
Robert Kuehn has written a thoughtful review of the history of professional skills education in legal education. As Bob notes, the ABA has been notably reluctant to require law schools to educate students on the skills they will use in law practice. Our accrediting body did not require any instruction in professional skills until 2005 and, even then, the accreditors required only “one solid credit” of that training. More recently, the ABA mandated six credits of experiential work for every law student–a total that still seems grudging for skills that lawyers use heavily in practice.
Students and some law schools have been more foresighted. As Bob documents, one-fifth of law schools now require all students to complete a clinic or externship; ninety percent have enough clinic or externship spots to accommodate all of their students. Students, meanwhile, show increasing interest in learning professional skills: enrollments in clinics, externships, and simulation courses have all climbed during the last decade.
This is a good news/bad news report. Student demand for professional training has increased, schools have shown an ability to meet that demand, and the ABA has finally imposed a meaningful requirement for experiential education. At the same time, tenure-track faculty continue to distance themselves from these educational experiences and the six-credit requirement is unrealistically light for students who will build their professional success on their skills.
Salaries and Scholarship
January 13th, 2018 / By Deborah J. Merritt
Law professors teach a wide variety of subjects: Property, Civil Procedure, Legal Writing, Law & Economics, Business Associations, Feminist Legal Theory, Law Clinics. Professors bring diverse backgrounds to this teaching. Some hold JDs, some hold PhDs, some hold both. Some have practiced law, while others have not. Some earned high salaries before joining a law faculty, while others drew more modest paychecks in government, legal aid, nonprofits, or other academic fields.
Despite this variety, there is one constant: professors who focus their teaching on legal writing or clinical courses earn significantly less money than those who teach other types of classes. This is true regardless of degrees, prior professional experience, or past salary level. What explains this pay gap? And what does the gap tell us about our values in legal education?
Before answering those questions, we have to understand the size of the gap. Academics shy away from salary discussions, but silence can hide inequity. To break that silence, I have been gathering information from salary databases released by public universities. I don’t have information on every public law school, but a surprising amount of data is available.
In this post, I will refer to salaries at one leading law school. US News ranks this school among the top 25 schools nationally, and it is a clear leader in legal education. The salaries at this school, which I’ll call the Myra Bradwell College of Law, do not reflect salaries at every law school. They do, however, illustrate the type of salary gap our schools maintain between professors who teach clinics/legal writing and those who teach other subjects.*
The Market for Legal Writing and Clinical Professors
January 5th, 2018 / By Deborah J. Merritt
Why do professors who teach legal writing and clinics earn significantly less than professors who teach other courses? Why are the writing and clinical professors less likely to hold tenure-track status? And why, finally, are these lower-paid, lower-status professors disproportionately female?
A common answer is: the market. Applicants for legal writing and clinical positions are plentiful, the argument goes, so the market drives their salaries and status down. Professors who teach other courses are more scarce and have more lucrative options; law schools must pay more (and offer tenure-track status) to attract them. Law schools also demand scholarship from professors teaching those other courses, and the pool of people capable of outstanding scholarship and good teaching is very small indeed. Salaries and status must be generous to land those rare individuals–but not so generous for legal writing and clinical professors.
This explanation (which I’ll call the “market hypothesis”) has some initial appeal, but thoughtful examination reveals several flaws. The most striking defect is this one: The market hypothesis doesn’t explain the very high percentage of women teaching legal writing and clinical courses. 62% of the faculty teaching clinics or externship courses identify as women; 72% of those who teach legal writing do so. The pool of law school graduates, in contrast, includes roughly equal numbers of men and women. So why don’t the hiring nets for clinical and legal writing positions pull up a more equal number of male and female professors?
If the market hypothesis is correct, it has to explain why an abundant applicant pool yields such gendered results. I explore below four ways in which the market hypothesis might coexist with our disproportionately female writing and clinical faculties.
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The Second Class Among Us
January 4th, 2018 / By Deborah J. Merritt
Bob Kuehn has posted a sobering analysis of the status and salaries of clinical, externship, and legal writing faculty. It should be no surprise that most of these professors lack tenure–and that they earn significantly less than the faculty who teach courses without significant writing or clinical components. The size of the differences, however, may take some tenure-track faculty aback.
Who are the colleagues who suffer lower pay and status? Overwhelmingly, they are women. More than 70% of legal writing professors and externship supervisors are women; about 60% of clinical professors are female. These are striking differences in a profession that is still male dominated in many ways.
I will have more to say about these differences over the coming days. For now, take a look at Bob’s data and think about some new year’s resolutions.
Update: I did not mention professors who teach academic support or bar preparation courses in this post, because I do not have the type of national data Bob gathered for legal writing and clinical professors. Academic support and bar preparation are among the most essential courses we offer in law schools–yet the faculty teaching them are at best second class. I will write more about these key professors soon.
New AALS Section: Empirical Study of Legal Education & the Legal Profession
January 2nd, 2018 / By Deborah J. Merritt
If you’re at the AALS meeting, don’t miss the inaugural session of the new Section on Empirical Study of Legal Education & the Legal Profession. Spearheaded by Judith Wegner, this Section welcomes colleagues who are interested in conducting or using empirical research relating to legal education and the legal profession. You don’t need to be a numbers person to benefit from this Section–just someone who is interested in studying what we do in law schools and the legal profession.
The inaugural panel discussion, which kicks off at 3:30 p.m. tomorrow (Wednesday, January 3) shows the breadth of this Section:
- Raul Ruiz (Florida International University): Predicting Student Outcomes: Data Mining for Law Schools
- Victor Quintinilla (Mauer School of Law, IU-Bloomington): Productive Mind-Set, the Power of Belonging, and Bar Passage
- Bryant Garth (UC Irvine and formerly American Bar Foundation): Understanding the Changing Legal Profession
- Kellye Testy (LSAC and formerly University of Washington): The LSAC’s Emerging Research Priorities
- Aaron Taylor (Access Lex and St. Louis University): AccessLex’s Emerging Research Priorities
If that’s not enough to pique your interest, there will also be break-out groups discussing:
- Conducting and Consuming Research: What tools, resources, or professional development do you need to conduct or use empirical studies?
- Institutional Excellence and Assessment: How can law schools best assess programmatic and student learning outcomes? What methods and data management strategies apply?
- Admissions and Academic Success: What are best practices in admissions and academic success programs for students with mixed indicators? How do we know?
- Bar Exam Preparation & Licensing: What interventions work in preparing students to succeed on the bar exam? How can professional licensing strategies be improved?
- Professional Identity and Satisfaction: What can be done to enhance students’ sense of professional identity? What factors affect lawyer satisfaction, success, and happiness?
This is the place to be at AALS on Wednesday afternoon. If you can’t make the session but want to connect with the Section, email Judith Wegner at Judith_wegner@unc.edu.
New Year’s Resolutions for Law School Professors
January 1st, 2018 / By Deborah J. Merritt
- Keep your brain healthy by trying new types of mental exercise. Commit to learning at least one of these cognitive skills during the new year: fact gathering, client counseling, interviewing, or negotiating. Then help your students exercise their brains by teaching these kinds of cognition in the classroom.
- Cut back on fatty law review articles. The legal academy is showing dangerous signs of scholarly obesity. Writing law review articles is like eating chocolate cake: best done in moderation.
- Meet new people. Talk to practitioners and clients in the fields you teach. How do practitioners approach their clients’ problems? What matters most to the clients?
- Help the disadvantaged. Teach your students the doctrine and cognitive skills they need to serve low- and moderate-income clients.
- Challenge your biases–and those of your institution. Do you value some types of scholarship and teaching more than others? Does your institution award higher salaries and status to colleagues who teach case analysis rather than other types of cognitive expertise? How do those biases affect the provision of legal services?
Embrace change: This is the 6,576th day of the new millennium.
Lawyering Jobs
November 21st, 2017 / By Deborah J. Merritt
I’ve written before about the Bureau of Labor Statistics’ Employment Projections program. Every other year, the statisticians associated with that program count the number of existing “lawyer” jobs as part of their work. This count is especially useful because it includes both salaried and self employed workers. The biennial counts thus include solo practitioners, law firm partners, and practicing lawyers who earn a salary from any source.
The counts offer an excellent opportunity to track the growth of lawyering jobs. Here are the number of “lawyer” jobs reported in selected years since 1978, when the program began:
- 1978: 380,000
- 1988: 582,000
- 1998: 681,000
- 2008: 759,200
- 2010: 728,200
- 2012: 759,800
- 2014: 778,700
As I’ve written before, those figures show that the number of jobs for lawyers is still growing–but the pace of growth has slowed considerably. Between 2012 and 2014, the number of lawyering jobs increased by just 9,450 positions per year.
The Bureau of Labor Statistics recently released the figures for 2016, and the news is sobering. In 2016, the Bureau counted just 792,500 “lawyer” jobs in the economy. That’s an increase of only 13,800 positions since 2014–or just 6,900 positions per year. That’s better than the anemic growth between 2008 and 2014 (which included periods of job loss), but worse than growth in most other two-year periods.
These figures, unfortunately, coincide with ones released by the ABA for recent graduates. Since 2013, the number of “lawyer” jobs for new JDs has fallen each year, from 26,653 for the Class of 2013 to 22,930 for the Class of 2016. (Figures for the Class of 2017 won’t be available until next spring.) Graduating classes have been smaller, so the percentage of employed graduates has improved somewhat–but the number of jobs found by those graduates has declined.
To me, the BLS projections underscore the wisdom of creating programs that allow college graduates to perform some aspects of law practice. There is plenty of demand for legal services–just not at the price demanded by fully licensed JDs. Rather than continue producing JDs at rates the job market can’t absorb, schools would be wise to consider alternative programs.
These figures also counsel caution about recent upticks in LSAT takers. More students may be considering law school, but schools need to remain wary about the employment market. If we admit more students, will employment rates fall again?
* Note: The BLS statistics for “lawyer” jobs report only positions listed under that category. Some BLS tables also report small numbers of judges and law clerks, but I have eliminated those categories for simplicity.
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