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Peking University
January 18th, 2016 / By Deborah J. Merritt
In August 2012, the ABA’s Council of Legal Education and Admissions to the Bar decided not to accredit any law schools located outside the United States. Many observers assumed that action would put an end to Peking University’s upstart enterprise, a School of Transnational Law. Instead, the school, popularly known as “STL,” is thriving.
Philip McConnaughay and Colleen Toomey, STL’s Dean and Associate Dean, explain the school’s success in a recent paper. Their insights are important for anyone seeking to understand the globalization of law practice and legal education. The story of Peking University and STL also offers a cautionary tale about American protectionism.
AALS Internships
January 17th, 2016 / By Deborah J. Merritt
The Association of American Law Schools wants to employ several law students, who will “work on research and writing projects related to [the Association’s] mission of improving legal education.” In particular, students will have the opportunity to work on projects related to “the value of a U.S. legal education” and “financial aid for law students.” There’s just one catch: These are unpaid internships.
There’s something deeply sad about unpaid student interns working to showcase the value of their education. Even law schools pay their research assistants. H/t to Outside the Law School Scam.
How To Fix The U.S. News Law School Rankings
January 13th, 2016 / By Kyle McEntee
This was originally published on Above the Law.
To put it mildly, I’m not a fan of the U.S. News law school rankings. They poison the decision-making process for law students and law schools alike. For students, they cause irrational choices about where to attend or how much to pay. For schools, they produce a host of incentives that do not align with the goal of providing an accessible, affordable legal education.
Because of their undeniable influence, it makes sense to seek methodological changes that nudge schools in a better direction.
» Read the full text for How To Fix The U.S. News Law School Rankings
Our Own Worst Critics
August 28th, 2015 / By Deborah J. Merritt
The journal Science just published a study reporting that top scientists were unable to reproduce the results claimed by 75% of social psychology studies and 50% of cognitive psychology ones. All of the studies appeared in top-ranked journals.
Some scientists, I’m sure, are reeling that their work has been challenged. But I like the attitude expressed by Brian Nosek, a prominent researcher who led the reproduction study. “Scepticism is a core part of science,” he told journalists, “and we need to embrace it. . . . We should be our own worst critics,”
I would say the same about legal education. Skepticism is a core part of our method. We teach students to question their assumptions, as well as the precedents they read. At faculty workshops, we question the presenter’s results and offer competing theses. Practicing lawyers must learn to be even more skeptical than we are; clients shade the truth, witnesses lie, and opposing lawyers omit relevant facts. Skeptical questions are the foundation of our profession.
Yet we are remarkably resistant to questions about legal education. Suggestions that our curriculum focuses too heavily on appellate practice; that education in other practice skills would improve client representation; that we tout big firm lawyers (and their salaries) more eagerly than small ones; that tuition and tenured faculty salaries have increased markedly, while teaching loads have fallen; that legal scholars devote almost no time to studying the delivery of legal services and ways to streamline those services; or even that the hallowed Socratic method may not be quite as engaging to students as it is to professors–these and other criticisms meet waves of resistance rather than eager discussion. Note that I say “discussion” rather than “acceptance.” I am inclined to agree with the criticisms noted here, but I am amazed by the reluctance of some scholars even to entertain these questions.
Legal educators are finally making progress; we are more willing to consider the fact that legal education might–just might–be capable of improvement. It’s sad, though, that this new openness has stemmed primarily from market forces rather than an innate commitment to improvement. Ten years ago, it was hard to get many educators to discuss even the possibility of flaws in legal education. Only after remarkable downturns in jobs and applicants have we become receptive to reflection.
That reflection has led to promising innovations, but our work has just begun. We need to know much more about the impact of those innovations, as well as about some of the traditional classroom models they have replaced. We need to continue learning about the work our graduates do and the legal needs that remain unmet. State supreme courts have given us the virtually exclusive power to choose future lawyers, along with the responsibility of providing their foundational education. It’s a weighty responsibility that will bring it’s own reward if we do it right.
Law schools don’t need a $1 million communications effort to improve our public image. We need a genuine commitment to identifying and solving problems within legal education and the profession. If we have an extra $5,000 per law school, I suggest we spend that money on initiatives that will inform and improve legal education–not on PR. Here are just a few suggestions:
1. Evaluate the outcomes of legal incubators for both new lawyers and clients. Do these initiatives succeed in launching new lawyers into practice? Are they able to address low- and moderate-income needs?
2. What other practice models show promise in matching lawyers with under-served clients? individual schools–or a national organization like the AALS–could offer seed grants to scholars who are exploring alternative structures for the delivery of legal services. Which structures show the most promise for closing the justice gap? What kind of work do lawyers do within those structures? How can law schools best educate lawyers for those roles?
3. Sponsor faculty workshops that will educate faculty on what skills like interviewing, counseling, fact gathering, and negotiation really entail. I was amazed to read last night that some faculty think that these are “motor” skills rather than “thinking” ones. We need to educate faculty about these essential skills, which are as important to law practice as appellate-style reasoning. These skills also require as much “thinking” as any other work in law school.
4. Create workshops that will teach practitioners how to educate new lawyers. The conventional law school classroom offers a poor model for workplace education. Too many senior lawyers try to emulate Kingsfield, barking questions and criticisms rather than giving guidance. Clinical professors know how to educate new lawyers while engaged in active client representation. With a modest amount of funding, they could educate practitioners in those pedagogies.
Do good work, and the good press follows.
The Tale of Two Students
August 19th, 2015 / By Deborah J. Merritt
A recent statement by a group of deans offers a telling insight into the way law schools envision their graduates’ practice experience. In the course of criticizing California’s proposal to require 15 units of experiential education, the deans contrast two types of students.
On the one hand, the deans worry that California’s proposal “could seriously hamper the student who wants to practice tax law and whose future employer advises taking as many specialized courses as possible in that field.” Students who are going to practice tax, they imply, need to learn a lot of legal doctrine; those students don’t need to spend much time learning about negotiation, client counseling, drafting, or other practice-based matters during law school.
On the other hand, the deans suggest that if California’s bar authorities are worried about new “graduates who seek to ‘hang out a shingle,’ or engage in other areas of direct representation or fields requiring particular training, there are many ways that a state bar might reform its regulatory structure to certify a higher level of competency for particular kinds of practice.”
Why do graduates who engage in “direct representation” need a “higher level of competency” than junior tax lawyers? Because the tax lawyer (or at least the one these deans have in mind) is going to work for a large law firm that will be able to tutor her gradually in client representation. In its traditional form, legal education doesn’t teach students to represent clients directly. Instead, we assume that employers will take care of all that.
False Assumptions
That assumption worked, for a time, for law school graduates taking jobs in firms that served corporate clients. Those firms could afford to train new lawyers; they also had a large body of work (e.g., document review and legal research) that new lawyers could profitably perform while learning to represent clients. The clients, meanwhile, seemed content to subsidize some new lawyer learning.
The assumption never worked very well for other other employers. Small law firms, legal aid offices, public defenders, and many government offices have always needed new lawyers who could engage immediately in direct representation. These employers and their new hires struggled to complete the work that law schools left undone.
Our traditional model of legal education, in other words, prepared graduates to work for an employer with substantial supervisory assets. Big firms and their corporate clients had those assets; other employers and clients did not. We favored the former over the latter, simply by the way we structured our curriculum.
The New Economy
Today, of course, the assumption doesn’t work well even for the largest firms. All employers want new lawyers with more practice sophistication than graduates typically possess. Stiff market competition drives those demands: clients can shop around for law firms, and firms have their pick of hungry new lawyers.
Law schools have responded, and we are starting to educate students more directly for their professional roles. Still, as this deans’ statement reflects, schools reflexively protect parts of the curriculum that benefit students headed for large firms–rather than eagerly embracing educational experiences that will benefit all of the graduates who begin working with clients immediately.
Why do we do this? Why do law schools worry first about preparing students for large firm practice–relegating those engaged in “direct representation” to the shadows, where they will somehow, somewhere obtain the “higher level of competency” they need to represent clients?
Getting It Backwards
Our system of legal education is upside down. We should educate all future lawyers to engage in direct representation; that’s what lawyers do. JD students who want to be lawyers need to study basic legal doctrine, legal research, legal writing, case analysis, statutory interpretation, the principles of professional responsibility, and legal reasoning. Our curriculum has grown to accommodate most of those subjects relatively well.
Rather than rounding out their study with advanced doctrinal subjects, however, these students should study professional skills like interviewing, client counseling, negotiation, deal making, financial analysis, drafting, and advocacy. Future lawyers should, finally, have experiences that tie all of those elements together in supervised client representation.
The latter experiences should displace advanced doctrine in the JD curriculum for four reasons. First, all lawyers use a subset of these skills, just as all legal fields build upon the foundation concepts taught in the first year. It makes sense to teach basics at the beginning of a professional’s career.
Second, these experiential courses reinforce the legal doctrine learned in other courses. I audited a Trial Practice course a few years ago and cringed as my Evidence students (who had taken their exam just a week earlier) failed to remember basic evidentiary principles. After a few weeks in Trial Practice, however, their knowledge returned–stronger and deeper than ever. When students ask me how to prepare for the bar exam, I tell them to take courses in bar subjects accompanied by experiential courses that reinforce that learning.
Third, law schools actually teach professional skills better than employers do. Sure, a new lawyer can learn something by watching a more senior practitioner. But if he asks the senior lawyer how she accomplishes a particular task, the senior lawyer is likely to say something like “I don’t know, I just do.” Academic settings are much better than workplaces for identifying underlying principles, reflecting on how and why things work, providing supervised practice, and developing new approaches. These advantages hold for the professional learning we call “skills” as well as for bodies of legal doctrine.
Finally, if lawyers need advanced doctrinal training in an academic setting, we have plenty of programs to fill that need. Law school teaches students how to think like lawyers precisely so they can learn new legal doctrines on their own. For areas that are too complex for that self learning, graduates have an increasing array of options: traditional LLM programs, online courses, professional workshops, and certificate programs. Today’s graduates will practice law until 2055 or beyond. Doesn’t it make sense for them to learn basic skills first and purchase new instruction in legal doctrine when they need it?
Conclusion
If we’re serious about either serving clients or educating students for good practice opportunities, we need to turn legal education rightside up. Lawyers have a monopoly over direct representation of clients on legal matters, nothing else. It’s time to take seriously our responsibility–and our opportunity–to educate students for that role.
Statement from the AALS Section on Clinical Legal Education
August 17th, 2015 / By Deborah J. Merritt
The AALS Section on Clinical Legal Education has issued an excellent statement about California’s proposal to require bar applicants to complete 15 units of practice-based experiential coursework. I have already written two posts supporting this proposal, and agree with the views expressed in the Section’s statement. Here is the statement in full:
AALS Section on Clinical Legal Education Statement of Position Regarding the State Bar of California Task Force on Admissions Regulation Reform (TFARR) Experiential Education Requirement*
The Association of American Law Schools Section on Clinical Legal Education (“AALS Clinical Section”) applauds the Trustees of the State Bar of California for unanimously adopting the proposal of the Task Force on Admissions Regulation Reform (“TFARR”) to require applicants to have completed 15 credits of experiential education prior to sitting for the California Bar. The AALS Clinical Section is made up of hundreds of legal educators, including many in California who have dedicated their professional lives to preparing students for the practice of law through in-house clinics, externships, and other experiential educational offerings. In recent years, we collectively and individually have been involved in efforts to ensure that our JD students are more ready for practice, consistent with calls for such training made by bar associations, alumni, prospective students, and fellow educators. Many of us have participated actively in state bar associations and on bar committees, allowing us to appreciate the goals of both the legal academy and state regulators. With these experiences and perspectives in mind, we believe that the TFARR proposal, which encourages the integration of 21st century lawyering skills into the core of legal education, presents a significant opportunity to better prepare students to meet the demands of clients upon admission to the bar.
As the Clinical Legal Education Association (CLEA) and other stakeholders have noted, the legal profession has lagged far behind every other profession in regards to required pre-licensing professional skills education. Numerous studies over the past four decades by the American Bar Association (ABA) and others have decried this lack of practical training and called for reforms to the required law school curriculum.[1] As a result of these reports, the ABA recently increased the number of credits of experiential education required of JD students from 1 to 6 credits.[2] While this represents a significant increase for law students, it corresponds to less than 8% of the JD program. It is also 4 times less than the practical training required of social workers and nurses and more than 6 times less than the practical training required of physicians.[3]
A. The Proposal Reflects an Increased Demand for Experiential Opportunities
Law students also have been clamoring for more experiential education opportunities. The greatest evidence of this demand is the criteria students rely upon when choosing a law school. These choices have become ever more important for law schools facing declining application numbers. A Law School Admission Council study in 2013 found that clinics/internships were among the most influential factors for prospective students in deciding whether to enroll at a given law school, behind only location and employment of graduates (77% of respondents considered location to be a very important factor and 68% classified clinics/internships as very important).[4] In fact, experiential offerings were more important to these prospective students than the cost of the institution, the personal attention they would receive, a school’s ranking, and the reputation of faculty. In addition, a survey conducted in 2004 of recent law school graduates found that opportunities for professional skills training (including clinical courses and legal employment) were rated as the most helpful law school experiences in successfully transitioning to practice.[5] Surveys conducted by the National Association for Law Placement in 2010 and 2011 likewise found that lawyers in the private, government, and non-profit sectors attached great value to their law school clinic experiences.[6] Thus, from the viewpoints of prospective law students, recent graduates, and more senior lawyers, practical training is vital.
B. The Proposal Permits Great Flexibility and Aligns with the ABA Rules
We are aware that TFARR took these factors into account and that it crafted and revised the final proposal over several years during which it worked closely with California law schools, practitioners, and the judiciary, and engaged in extensive information gathering, including numerous opportunities for public comment. The result is a proposal that gives law schools guidance on developing and evaluating experiential learning offerings while simultaneously giving schools flexibility to design these offerings in ways that suit particular institutional missions, student bodies, and relevant legal markets. First and foremost, the proposed California bar rules provide a “safe harbor” for courses that comply with the revised ABA standard, thus allowing ABA-accredited schools to offer programs that simultaneously satisfy both requirements. Under both sets of rules, virtually any topic taught in a real-client or simulated setting will satisfy the ABA and the California Bar, including interdisciplinary courses developed in collaboration with other professional schools. Skills learned can be as diverse as law practice management, client counseling, practical writing (including transactional writing), and pre-trial preparation.
In addition, under the California rules, the settings in which these skills can be learned include traditional courses, clinics and externships, uncredited clerkships, and apprenticeships. The proposal even allows for portions of a course to count, such that a 3-credit course that uses a contract-drafting exercise for 1/3 of the class time could count the 1-credit module towards the 15-credit requirement. Moreover, in a nod to schools experimenting with their first-year curricula, all but the first 4 units of first-year legal research/writing courses can count towards the 15 credits if they are taught through real or simulated client work. Finally, summer work that is uncredited is specifically allowed to count for up to 6 of the 15 required units. Thus, there are virtually limitless permutations of course, field, and uncredited work that law schools can offer to their students in order to meet both the ABA and California rules.
Moreover, the emphasis on skills (as opposed to substantive practice areas) provides schools the ability to tailor offerings to the local marketplace (e.g., oil and gas offerings in Texas or maritime law offerings at coastal schools). The result is that virtually any legal experience a student gains, whether in a law and policy reform organization or at the U.S. Patent and Trademark Office, can potentially count towards the 15-credit requirement. This provides a great deal of room for innovation, allowing institutions to experiment with the delivery of skills and professional training and draw upon generally under-utilized resources such as alumni.
As with any new undertaking, there will be a period of adjustment as schools begin to grapple with both the new ABA requirements as well as state requirements like those proposed by TFARR. TFARR has wisely taken this adjustment period into account by offering exemptions for licensed attorneys from other jurisdictions and allowing post-graduate apprenticeships (which can be paid) to meet the 15-credit requirement. This will ensure that schools have plenty of time to audit and/or ramp up their offerings, that lawyers who had not planned to practice in California still have access to that state’s bar, and that students have every opportunity to learn about and meet the requirements prior to their first bar admission.
Conclusion
Overall, the TFARR proposal presents a significant opportunity to improve the overall competency of new admittees to the State Bar of California. As students enter a rapidly changing and expanding legal marketplace, it is incumbent upon the Bar to ensure that law graduates have the doctrinal knowledge and professional and interpersonal skills needed to effectively and ethically represent clients in California. The TFARR proposal would advance this important obligation of the Bar and help legal education fulfill the demands of our students, their future clients, and the legal profession.
* * *
* Disclaimer in accordance with AALS Executive Committee Regulation 1.4: The opinions expressed here are not necessarily those of each member of the Section and do not necessarily represent the position of the Association of American Law Schools.
[1] The ABA’s 1979 Report and Recommendation of the Task Force on Lawyer Competency: The Role of the Law Schools (“the Crampton Report”) proposed that law school curricula pay more attention to providing professional experiences. The ABA’s 1983 Task Force on Professional Competence shared this perspective and recommended that the ABA make enhanced law school training in lawyering skills a top priority. A decade later, the 1992 ABA Report of the Task Force on Law Schools and the Profession: Narrowing the Gap (“the MacCrate Report”) recommended that law schools “develop or expand instruction” in fundamental lawyering skills and professional values; and the most recent, the ABA Task Force on the Future of Legal Education Report and Recommendation reiterated the “calls for more attention to skills training, experiential learning, and the development of practice-related competencies” and noted that the “balance between doctrinal instruction and focused preparation for the delivery of legal services needs to shift still further towards [the latter].” In addition, the Carnegie Foundation for the Advancement of Teaching publication, Educating Lawyers: Preparation for the Profession of Law (2007), found that courses that included real-life experience with lawyering could teach students all of the relevant professional competencies: intellectual, practical, and formation of professional identity and judgment.
[2] ABA Standard 303(a)(3).
[3] Robert R. Kuehn, Pricing Clinical Legal Education, 92 Denver L. Rev. 1, Appendix A (2015) (citing Molly Cooke et al., Educating Physicians: A Call for Reform of Medical School and Residency (2010); and Council on Social Work Educ., Educational Policy and Accreditation Standards, at Educ. Policy 2.3., Accreditation Std. 2.1.3 (2012)).
[4] The survey ranked factors based on the percentage of respondents who rated each factor as “4” or “5” on a 5-point scale, with “3” as “somewhat important” and “5” as “extremely important.” See Law School Admission Council, LSAC Report, May 2013, at 12.
[5] NALP Foundation for Law Career Research and Education & American Bar Foundation, After the JD: First Results of a National Study of Legal Careers 81 (2004).
[6] National Association for Law Placement & The NALP Foundation, 2010 Survey of Law School Experiential Learning Opportunities and Benefits 6 (2011); National Association for Law Placement & The NALP Foundation, 2011 Survey of Law School Experiential Learning Opportunities and Benefits: Responses from Government and Nonprofit Lawyers 7 (2012).
Student Choice
August 13th, 2015 / By Deborah J. Merritt
This is the second in a series of posts about California’s proposed changes in bar admission rules. As my first post explains, the proposal will require bar applicants to show that they have completed 15 units of “practice-based, experiential coursework.”
Some law school deans have objected to the proposal on the ground that it will “limit the flexibility and self-determination of individual students in studying law, and in planning diverse careers.” That objection is misguided. The California proposal will increase student options by pressing law schools to teach more of the courses that students want and need.
Diverse Offerings
If the California proposal is adopted, it will allow students to fulfill their practice-based work in any doctrinal field. Schools can design courses focused on tax practice, securities regulation, environmental work, or any other subject that might attract law students. The courses may also teach a wide range of competencies, including but not limited to:
* Oral presentation and advocacy
* Interviewing
* Counseling
* Client service and business development
* Negotiation, mediation, and arbitration
* Other methods of alternative dispute resolution
* Advanced legal research and writing
* Drafting contracts, pleadings, or other legal instruments
* Law practice management
* Use of technology in law practice
* Cultural competency
* Collaboration
* Project management
* Financial analysis (e.g., accounting, budgeting, or valuation)
* Cost benefit analysis in administrative agencies
* Use of technology, data analyses, or predictive coding
* Business strategy and behavior
* Fact investigation
* Pre-trial preparation
* Trial practice
* Professional civility and applied ethics
Those are just some of the non-exclusive possibilities listed by the California report; schools and practitioners undoubtedly will suggest more. Indeed, the deans who object to this proposal have generated several excellent ideas of their own: a course offering hands-on experience with technologies that increase access to justice; one developing new business models and technologies for legal compliance; a practicum on the anatomy of business deals; and collaborations focused on drafting contracts, regulations, or treaties.
Based on my experience in legal education, that’s an exciting list of subjects for law students. The practice-based and experiential courses at my law school tend to fill quickly and generate waiting lists; I suspect the same is true at other schools.
Notice, too, that the competencies described above are not limited to jobs requiring bar admission. California is not going to force every bar applicant to draft a will or file discovery motions. Project management, mediation, cost-benefit analysis, cultural competency, and financial expertise are competencies that many employers seek. The organizations that hire law graduates for “JD Advantage” jobs want a blend of law-related knowledge, analytic abilities, and communication skills. California’s proposal fits that bill.
High Quality Education
In addition to requiring bar applicants to develop practice-based competencies, the California rule will assure that those law graduates experience at least 9 credits of upperlevel education that includes opportunities for individual performance “other than traditional classroom discussion,” individualized feedback from a faculty member, and opportunities for self-evaluation–along with conceptual development. (As explained in my previous post, students can earn 6 of the required practice-based credits in the workplace, so only 9 need be taken on campus.)
Most students are eager for that type of educational experience. They don’t want the “choice” of taking primarily lecture classes in their second and third years of law school. The California proposal will broaden their educational horizons by giving them more choices of both pedagogies and subjects.
I do know one group of students who may not welcome these options. Over the years, I have talked to some high-achieving students who tell me that they shy away from clinics and problem-solving courses because they don’t want to endanger their class rank. These students confide that they’ve mastered the art of excelling on time-pressured exams and know that they will outshine their classmates in that arena. Why risk an A-minus, B-plus (or worse!) by stepping outside their comfort zone?
This attitude, of course, runs counter to our purpose in higher education. Campus should be a place for students to try their wings, explore, and develop new competencies. It’s sad that our educational structure, combined with the hiring policies of many legal employers, dampens this purpose.
California’s proposal will force these students to spread their wings, and I think that’s a good thing. Students should use higher education to expand their excellence, not to preserve a grade point average. Complaints from big law firms and their corporate clients, moreover, suggest that these high-ranking students will benefit from more practice-based, experiential education.
Client Service
For the above reasons, I think most students will cheer the California “requirements” as rules that introduce new options in the law school curriculum. Even if some students don’t want to take practice-based courses, California is right to require them for bar admission. We don’t create law school curricula to make students happy; we design courses to educate lawyers who will serve clients in the best possible manner.
Future lawyers should develop practice-based competencies for the same reason they should take Torts, Contracts, and several other courses: These are foundational elements for law practice. Three years isn’t enough time for students to learn all of the ways to “think like a lawyer,” but they need some foundation in cognitive competencies beyond appellate-style legal reasoning. California’s proposal allows bar applicants to choose the competencies most suited to their ambitions–including goals that lie outside of traditional law practice.
California’s proposal, which seems so restrictive to some law deans, is much less rigorous than the requirements imposed by other professions. Washington University Law School’s Associate Dean Robert Kuehn developed this table (p. 43) comparing educational requirements in eight professions. All of the non-law fields, ranging from medicine to architecture, devote between one-quarter and one-half of their professional curriculum to practice-based or clinical education. The California proposal, in contrast, would absorb about one-sixth of the law school curriculum–and only about one-tenth for students who choose to earn some of their practice-based competencies in the workplace. That’s a pretty modest commitment.
Conclusion
Some law schools are already embracing the benefits of California’s proposed requirements. Jeffrey Baker, Pepperdine’s Director of Clinical Education, notified me that Pepperdine will require all of its law students to complete 15 hours of “practice-based, experiential course work,” starting with the Class of 2017. Pepperdine’s dean, former Chief Judge of the US Court of Appeals for the Tenth Circuit Deannell Reece Tacha, urged her faculty to adopt the requirement.
The California proposal won’t require other schools to change their graduation requirements; the practice-based condition applies only to law graduates who seek admission to the California bar. Some students attend law school without any intention to practice law; they need not satisfy the California rule. Pepperdine’s action, however, confirms my own perspective: requiring 15 credits of practice-based, experiential education–with conceptual development, individual performance, feedback, and self-assessment–is sound educational policy for any law school.
Kudos to California
August 12th, 2015 / By Deborah J. Merritt
In February 2012, the California Bar Association appointed a task force to “examine whether the State Bar should develop a regulatory requirement for a pre-admission competency training program.” The group, dubbed the “Task Force on Admissions Regulatory Reform” (TFARR), oversaw hearings, deliberations, and consultations with key constituencies. It issued an initial report in 2013, which was adopted by the bar association’s board of trustees, then held a second round of hearings and deliberations to refine the recommendations for implementation.
That second report has been approved by the bar and awaits action by the California Supreme Court. What’s noteworthy about all of this? If approved, law graduates seeking to join the California bar will have to meet three new requirements. Law schools around the country will also have to help their California-bound students satisfy the first requirement: demonstrating completion of “15 units of practice-based, experiential coursework.”
I see both positives and negatives in the California proposal but, on balance, it’s a strong step forward. The proposal is a lengthy one, so I will explore it in several posts. To start, here are the features I find most appealing:
Process
The TFARR reports suggest a very thoughtful process. Academics and practitioners seem to have spent a lot of time talking with one another, as well as pondering what would be best for clients. The final report carefully considers objections from various stakeholders (especially law schools) and responds to them. I think we should listen to what the California task force has to say, not just because the state is big and diverse, but because intelligent people devoted a lot of attention to this proposal.
Practice-Based Experiential Coursework
For academics, the most controversial part of the California proposal is its requirement that students complete “15 units of practice-based experiential coursework . . . designed to foster the development of professional competencies.” The requirement is more demanding than the ABA’s recent mandate that students complete 6 hours of “experiential” courses; this difference has drawn strong opposition from some law school deans.
But let’s look more closely at the terms of the California proposal. Students can fulfill 6 of the 15 units through work with outside employers–including paid positions with private firms. This is an innovative idea that I explore further below.
California also allows students to count fractional parts of an academic course, as long as the course offers at least a half credit of the “practice-based experiential coursework” described in the requirements. In my 4-credit Evidence course, for example, I could devote one-eighth of the semester to an exercise (or a set of 2-3 exercises) that would allow my students to explore evidentiary principles in the context of motion writing, fact gathering, negotiation, ethical quandaries, or other professional work. I know professors who already do this, with appropriate feedback and reflection; it’s a great way to teach evidence. Courses structured like this would generate 1/2 credit toward the California requirement.
The California Task Force, furthermore, does an excellent job of defining the educational experiences that develop professional expertise. Too many professors still assume that “practice-based” courses consist solely of finding the courthouse, filing some papers, and listening to war stories from adjuncts.
As the California report suggests, those images are far from the truth. First-rate professional education draws from decades of cognitive science work illuminating the ways in which professionals develop expertise. That science, like the TFARR report, recognizes that there are four keys to cultivating expertise: teach the conceptual underpinnings, give students an opportunity to apply concepts in novel settings, provide feedback, and encourage student reflection.
Those parameters describe first-rate teaching, and it is especially appropriate to use those techniques to teach the competencies described in the California report. As knowledge of legal doctrine spreads rapidly through the population, lawyers’ professional expertise depends increasingly on their ability to apply that doctrine in the context of expert interviewing, counseling, cost-benefit analysis, and project management. Those skills are not trivial add-ons; they are complex cognitive activities that lawyers need to know and integrate with their knowledge of legal doctrine.
Is 15 Hours Too Much?
A prominent group of deans has objected to the California proposal partly on the ground that a 15-hour requirement is too much, too soon. But from a client’s, employer’s, or student’s perspective, it’s hard to believe that 15 hours of practice-based education is too much.
First, we’re talking about high-quality educational experiences, ones that provide both conceptual development and feedback. Courses that satisfy the California requirements will embody top-of-the-line pedagogy. Second, these educational opportunities will occur in just the areas where clients and employers find lawyers deficient.
Finally, and perhaps most important, these are the areas in which lawyers have the most potential to demonstrate their value. Clients can find legal doctrine on the web, through courthouse self-help materials, and through online services like Just Answer. Businesses increasingly have turned to compliance officers, human resource specialists, and other non-lawyers for help with legal doctrine. The potential advantage that lawyers hold over these competitors is the ability to integrate legal doctrine with lawyering-specific skills like interviewing, counseling, problem solving, and project management.
Lawyers have a special way of doing all of those things; we don’t interview like cops or counsel like social workers. But we need to teach students those ways, explore the concepts that undergird them, and help students practice. No one is born “interviewing like a lawyer.”
If we don’t give students a foundation in more of the skills that are special to our profession, we will hamper their ability to succeed in a competitive market. Knowledge of legal doctrine used to be lawyers’ competitive advantage; now it is the combination of that knowledge with other lawyer-specific skills.
Will these 15 hours diminish the amount of legal doctrine that law students learn? To some extent, but not nearly to the extent that critics seem to fear. Many professors already use practice exercises to teach advanced areas of legal doctrine; sophisticated concepts are hard to grasp without that contextual application. To the extent we lose some doctrinal principles along the way, that’s consistent with the traditions of legal education: we aim to teach fundamental cognitive processes that students can apply throughout their professional careers.
Clerkships and Apprenticeships
One of the most intriguing aspects of the California proposal is its creation of clerkships or “apprenticeships” that can fulfill up to 6 units of the practice-based education requirement. The rules for these experiences are different than those imposed by the ABA for credit-bearing externships. Most notable, students can be paid for these experiences. Summer and school-year jobs, in other words, can count. To do so, the employer must provide “an orientation session, active supervision, a system for assignments, timely oral and written feedback, a diversity of tasks and an opportunity for reflection.”
Once again, TFARR hits the nail on the head in terms of developing professional expertise. These requirements are just the ones that cognitive scientists have identified as essential for developing professional competency. If employers and schools take these requirements seriously, students will have much more educationally enriching workplace experiences. Many jobs already contribute to students’ education, but ones that follow these rules will add considerably more value.
Will law schools and employers take these requirements seriously? As professionals, we will be bound to do so; as educators, we should be eager to improve the quality of our students’ workplace experiences. On the employer side, I think that employers will discover a self interest in following these rules. These rules offer a template for educating new lawyers, one that many employers lack. If employers follow the California principles, I think they will realize enhanced productivity from their law students–as well as greater value from the graduates they hire more permanently.
At the very least, this is an experiment well worth trying. The California apprenticeship model lays the foundation for new types of collaboration between law schools and employers. That’s an outcome that could benefit schools, students, employers, and clients in myriad ways.
Clients
Let’s finish with clients, who are the focus of our professional obligations. Why does the California proposal help clients?
Lawyering is incredibly hard. It requires a wide range of knowledge, many interpersonal skills, and an ability to juggle very different inputs while problem solving (What does the client say she wants? What does she really want? What will the law allow? Could I change that law if I challenged it? Is the key fact I’m assuming true, or did that witness lie? How much time will my employer let me spend on all of this?)
The outcomes of this difficult task seriously affect other people’s lives. People go to prison, they lose custody of their children, they forfeit their businesses and homes. Or, sometimes, they prove their innocence, expose a civil rights violation, buy a dream home, or create a business that benefits an entire region.
Given the importance of our work to clients, combined with the difficulty of our tasks, we can never be complacent about legal education. We joke about how slowly law schools change, but it’s no joke. Schools have made many laudable changes during the last 35 years, but we were playing catch-up on many of them.
Every year, we ask our first-year students to stretch their minds and work harder than they’ve ever worked before. We need to do the same. Will we have to stretch ourselves to provide the opportunities required by the California proposal? Maybe, but it’s time for that stretch.
Like our students, we can learn to think in new ways and we can push ourselves to achieve more–so that they and their clients can achieve more. Let’s just do it.
More on Paid Clinical Externships
July 17th, 2015 / By Deborah J. Merritt
I’ve posted before about my support for a proposed change in Interpretation 305-2 of the ABA’s accreditation standards for law schools. The proposal would allow law schools to offer externship credit for paid positions. Today I sent an admittedly tardy letter to the Council, expressing the reasons for that support. For those who are interested, I reproduce the text below:
Dear Council Members:
I apologize for this late submission in response to your request for comments on the proposed change to Interpretation 305-2. I strongly support the proposed change, which would allow law schools to choose whether to offer externships with paid employers.
I have been a law professor for thirty years, teaching doctrinal, legal writing, and clinical courses. I also have a research interest in legal education and have published several articles in that field. My current interest lies in learning how lawyers develop professional expertise and in designing educational programs that will promote that development.
From my personal experience, as well as reviews of the cognitive science literature, I have no doubt that externships are a key feature of this development. Externships alone are not sufficient: In-house clinics provide pedagogic advantages (such as the opportunity for close mentoring and regular reflection) that externships are less likely to offer. A program of in-house clinics complemented by externships, simulations, and other classroom experiences, however, can offer students an excellent foundation in professional expertise.
When designing an educationally effective externship, the employer’s status (for-profit, non-profit, government) and student’s financial arrangement (paid or unpaid) are not relevant. This is because the educational institution controls the externship requirements. If an employer offering a paid externship balks at the school’s educational requirements, the school can (and should) refuse to include that employer in its program.
The key to educationally sound externships is close control by the academic institution. I suspect that some law schools (like other academic institutions) do not devote as much attention to externships as they should. The greater the school’s collaboration with the employer, the better the externship experience will be. This problem, however, applies to both paid and unpaid externships. The educational potential of externships does not depend upon the amount of pay; it depends upon the school’s willingness to supervise the externship closely—-and to reject employers that do not create suitable learning experiences.
Employers who pay law students may decide that they don’t want to participate in externship programs; they may find compliance with the program’s requirements and paperwork too onerous. This is not a reason to reject paid externships; it is an assurance that they will work properly. If an employer is willing to pay a student and comply with the pedagogic requirements of a good externship program, we should rejoice: This is an employer eager to satisfy the profession’s obligation to mentor new members.
This brings me to the major reason I support the proposal: Permission of paid externships will allow innovative partnerships between law schools and the practicing bar. As members of a profession, lawyers have a duty to educate new colleagues. Our Rules of Professional Conduct, sadly, do not explicitly recognize this duty. The obligation, however, lies at the heart of what it means to be a profession. See, e.g., Howard Gardner & Lee S. Shulman, The Professions in America Today: Crucial But Fragile, DAEDALUS, Summer 2005, at 13.
Our profession lags behind others in developing models that allow practitioners to fulfill their educational duty while still earning a profit and paying their junior members. Law school clinics and externship supervisors possess a wealth of experience that could help practitioners achieve those goals. Working together to supervise paid externships would be an excellent way to transfer these models, improve them, and serve clients.
I deliberately close by stressing clients. Many of our debates about educational practices focus on the interests of law schools, law students, and employers. For members of a profession, however, client needs are supreme. We know that an extraordinary number of ordinary Americans lack affordable legal services. We also know that businesses are increasingly turning to non-JDs to fill their legal needs as compliance officers, human resources directors, and other staff. If we want to create a world in which individuals and businesses benefit from the insights of law graduates, then we have to design educational models in which new lawyers become professionals while they and their mentors make a living.
Thank you for your attention. Please let me know if I can provide any further information.
Deborah J. Merritt
John Deaver Drinko/Baker & Hostetler Chair in Law
Moritz College of Law, The Ohio State University
ExamSoft: New Evidence from NCBE
July 14th, 2015 / By Deborah J. Merritt
Almost a year has passed since the ill-fated July 2014 bar exam. As we approach that anniversary, the National Conference of Bar Examiners (NCBE) has offered a welcome update.
Mark Albanese, the organization’s Director of Testing and Research, recently acknowledged that: “The software used by many jurisdictions to allow their examinees to complete the written portion of the bar examination by computer experienced a glitch that could have stressed and panicked some examinees on the night before the MBE was administered.” This “glitch,” Albanese concedes, “cannot be ruled out as a contributing factor” to the decline in MBE scores and pass rates.
More important, Albanese offers compelling new evidence that ExamSoft played a major role in depressing July 2014 exam scores. He resists that conclusion, but I think the evidence speaks for itself. Let’s take a look at the new evidence, along with why this still matters.
LSAT Scores and MBE Scores
Albanese obtained the national mean LSAT score for law students who entered law school each year from 2000 through 2011. He then plotted those means against the average MBE scores earned by the same students three years later. The graph (Figure 10 on p. 43 of his article) looks like this:
As the black dots show, there is a strong linear relationship between scores on the LSAT and those for the MBE. Entering law school classes with high LSAT scores produce high MBE scores after graduation. For the classes that began law school from 2000 through 2010, the correlation is 0.89–a very high value.
Now look at the triangle toward the lower right-hand side of the graph. That symbol represents the relationship between mean LSAT score and mean MBE score for the class that entered law school in fall 2011 and took the bar exam in July 2014. As Albanese admits, this dot is way off the line: “it shows a mean MBE score that is much lower than that of other points with similar mean LSAT scores.”
Based on the historical relationship between LSAT and MBE scores, Albanese calculates that the Class of 2014 should have achieved a mean MBE score of 144.0. Instead, the mean was just 141.4, producing elevated bar failure rates across the country. As Albanese acknowledges, there was a clear “disruption in the relationship between the matriculant LSAT scores and MBE scores with the July 2014 examination.”
Professors Jerry Organ and Derek Muller made similar points last fall, but they were handicapped by their lack of access to LSAT means. The ABA releases only median scores, and those numbers are harder to compile into the type of persuasive graph that Albanese produced. Organ and Muller made an excellent case with their data–one that NCBE should have heeded–but they couldn’t be as precise as Albanese.
But now we have NCBE’s Director of Testing and Research admitting that “something happened” with the Class of 2014 “that disrupted the previous relationship between MBE scores and LSAT scores.” What could it have been?
Apprehending a Suspect
Albanese suggests a single culprit for the significant disruption shown in his graph: He states that the Law School Admission Council (LSAC) changed the manner in which it reported scores for students who take the LSAT more than once. Starting with the class that entered in fall 2011, Albanese writes, LSAC used the high score for each of those test takers; before then, it used the average scores.
At first blush, this seems like a possible explanation. On average, students who retake the LSAT improve their scores. Counting only high scores for these test takers, therefore, would increase the mean score for the entering class. National averages calculated using high scores for repeaters aren’t directly comparable to those computed with average scores.
But there is a problem with Albanese’s rationale: He is wrong about when LSAC switched its method for calculating national means. That occurred for the class that matriculated in fall 2010, not the one that entered in fall 2011. LSAC’s National Decision Profiles, which report these national means, state that quite clearly.
Albanese’s suspect, in other words, has an alibi. The change in LSAT reporting methods occurred a year earlier; it doesn’t explain the aberrational results on the July 2014 MBE. If we accept LSAT scores as a measure of ability, as NCBE has urged throughout this discussion, then the Class of 2014 should have received higher scores on the MBE. Why was their mean score so much lower than their LSAT test scores predicted?
NCBE has vigorously asserted that the test was not to blame; they prepared, vetted, and scored the July 2014 MBE using the same professional methods employed in the past. I believe them. Neither the test content nor the scoring algorithms are at fault. But we can’t ignore the evidence of Albanese’s graph: something untoward happened to the Class of 2014’s MBE scores.
The Villain
The villain almost certainly is the suspect who appeared at the very beginning of the story: ExamSoft. Anyone who has sat through the bar exam, who has talked to test-takers during those days, or who has watched students struggle to upload a single law school exam knows this.
I still remember the stress of the bar exam, although 35 years have passed. I’m pretty good at legal writing and analysis, but the exam wore me out. Few other experiences have taxed me as much mentally and physically as the bar exam.
For a majority of July 2014 test-takers, the ExamSoft “glitch” imposed hours of stress and sleeplessness in the middle of an already exhausting process. The disruption, moreover, occurred during the one period when examinees could recoup their energy and review material for the next day’s exam. It’s hard for me to imagine that ExamSoft’s failure didn’t reduce test-taker performance.
The numbers back up that claim. As I showed in a previous post, bar passage rates dropped significantly more in states affected directly by the software crash than in other states. The difference was large enough that there is less than a 0.001 probability that it occurred by chance. If we combine that fact with Albanese’s graph, what more evidence do we need?
Aiding and Abetting
ExamSoft was the original culprit, but NCBE aided and abetted the harm. The testing literature is clear that exams can be equated only if both the content and the test conditions are comparable. The testing conditions on July 29-30, 2014, were not the same as in previous years. The test-takers were stressed, overtired, and under-prepared because of ExamSoft’s disruption of the testing procedure.
NCBE was not responsible for the disruption, but it should have refrained from equating results produced under the 2014 conditions with those from previous years. Instead, it should have flagged this issue for state bar examiners and consulted with them about how to use scores that significantly understated the ability of test takers. The information was especially important for states that had not used ExamSoft, but whose examinees suffered repercussions through NCBE’s scaling process.
Given the strong relationship between LSAT scores and MBE performance, NCBE might even have used that correlation to generate a second set of scaled scores correcting for the ExamSoft disruption. States could have chosen which set of scores to use–or could have decided to make a one-time adjustment in the cut score. However states decided to respond, they would have understood the likely effect of the ExamSoft crisis on their examinees.
Instead, we have endured a year of obfuscation–and of blaming the Class of 2014 for being “less able” than previous classes. Albanese’s graph shows conclusively that diminished ability doesn’t explain the abnormal dip in July 2014 MBE scores. Our best predictor of that ability, scores earned on the LSAT, refutes that claim.
Lessons for the Future
It’s time to put the ExamSoft debacle to rest–although I hope we can do so with an even more candid acknowledgement from NCBE that the software crash was the primary culprit in this story. The test-takers deserve that affirmation.
At the same time, we need to reflect on what we can learn from this experience. In particular, why didn’t NCBE take the ExamSoft crash more seriously? Why didn’t NCBE and state bar examiners proactively address the impact of a serious flaw in exam administration? The equating and scaling process is designed to assure that exam takers do not suffer by taking one exam administration rather than another. The July 2014 examinees clearly did suffer by taking the exam during the ExamSoft disruption. Why didn’t NCBE and the bar examiners work to address that imbalance, rather than extend it?
I see three reasons. First, NCBE staff seem removed from the experience of bar exam takers. The psychometricians design and assess tests, but they are not lawyers. The president is a lawyer, but she was admitted through Wisconsin’s diploma privilege. NCBE staff may have tested bar questions and formats, but they lack firsthand knowledge of the test-taking experience. This may have affected their ability to grasp the impact of ExamSoft’s disruption.
Second, NCBE and law schools have competing interests. Law schools have economic and reputational interests in seeing their graduates pass the bar; NCBE has economic and reputational interests in disclaiming any disruption in the testing process. The bar examiners who work with NCBE have their own economic and reputational interests: reducing competition from new lawyers. Self interest is nothing to be ashamed of in a market economy; nor is self interest incompatible with working for the public good.
The problem with the bar exam, however, is that these parties (NCBE and bar examiners on one side, law schools on the other) tend to talk past one another. Rather than gain insights from each other, the parties often communicate after decisions are made. Each seems to believe that it protects the public interest, while the other is driven purely by self interest.
This stand-off hurts law school graduates, who get lost in the middle. NCBE and law schools need to start listening to one another; both sides have valid points to make. The ExamSoft crisis should have prompted immediate conversations between the groups. Law schools knew how the crash had affected their examinees; the cries of distress were loud and clear. NCBE knew, as Albanese’s graph shows, that MBE scores were far below outcomes predicted by the class’s LSAT scores. Discussion might have generated wisdom.
Finally, the ExamSoft debacle demonstrates that we need better coordination–and accountability–in the administration and scoring of bar exams. When law schools questioned the July 2014 results, NCBE’s president disclaimed any responsibility for exam administration. That’s technically true, but exam administration affects equating and scaling. Bar examiners, meanwhile, accepted NCBE’s results without question; they assumed that NCBE had taken all proper factors (including any effect from a flawed administration) into account.
We can’t rewind administration of the July 2014 bar exam; nor can we redo the scoring. But we can create a better system for exam administration going forward, one that includes more input from law schools (who have valid perspectives that NCBE and state bar examiners lack) as well as more coordination between NCBE and bar examiners on administration issues.
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