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Too Soon to Tell
June 21st, 2013 / By James Moliterno
At Washington & Lee, as at most schools right now, we would prefer that our students were more successful in obtaining employment. But the 2012 employment figures, unfortunate as they are, say nothing about our our curricular reform. It is simply too early, . . . much too early.
The 2012 numbers refer to the first full class to pass through the reformed third year curriculum. Ours is a slow-to-change profession. Employers as a group do not change their settled practices on a dime. Nothing in the employment numbers that we see for the next 3 to five years should be seen as reflecting on the reception given to the curriculum reform. No curricular reform I know of, including Langdell’s, changed settled practices of others overnight. (more…)
An Employment Puzzle
June 18th, 2013 / By Deborah J. Merritt
Pedagogically and professionally, it makes sense for law schools to teach practical skills along with theory and doctrine. New lawyers should know how to interview clients, file simple legal documents, and analyze real-world problems, just as new doctors should know how to interview patients, use a stethoscope, and offer a diagnosis. Hands-on work can also deepen knowledge received in the classroom. Law students who apply classroom theories to real or simulated clients develop stronger intellectual skills, as well as new practical ones.
Employers say they are eager to hire these better-trained, more rounded, more “practice ready” lawyers–and they should be. That’s why the employment results for Washington & Lee’s School of Law are so troubling. Washington & Lee pioneered an experiential third-year program that has won accolades from many observers. Bill Henderson called Washington & Lee’s program the “biggest legal education story of 2013.” The National Jurist named the school’s faculty as among the twenty-five most influential people in legal education. Surely graduates of this widely praised program are reaping success in the job market?
Sadly, the statistics say otherwise. Washington & Lee’s recent employment outcomes are worse than those of similarly ranked schools. The results are troubling for advocates of experiential learning. They should also force employers to reflect on their own behavior: Does the rhetoric of “practice ready” graduates align with the reality of legal hiring? Let’s look at what’s happening with Washington & Lee graduates.
Employment Outcomes
I used the law-job calculator developed by Educating Tomorrow’s Lawyers to compare Washington & Lee’s employment outcomes with those of other schools. Drawing upon ABA data that reports job outcomes nine months after graduation, the calculator allows users to choose their own formulas for measuring outcomes. I chose two formulas that I believe resonate with many observers:
(a) The number of full-time, long-term jobs requiring bar admission, minus (i) any of those jobs funded by the law school and (ii) any solo positions; all divided by the total number of graduates.
(b) The number of full-time, long-term jobs requiring bar admission or for which the JD provided an advantage, minus (i) any of those jobs funded by the law school and (ii) any solo positions; all divided by the total number of graduates.
[Note: These are not the only formulas for measuring job outcomes; other formulas may be appropriate in other contexts. These formulas work here because they allow the most straightforward comparison of employment outcomes across schools. These formulas also make the best case for Washington & Lee’s outcomes, because that school did not report any long-term, full-time solos or school-funded jobs in 2011 or 2012.]
Using those two measures, Washington and Lee’s employment outcomes for 2011 were noticeably mediocre. By nine months after graduation, only 55.0% of the school’s graduates had obtained full-time, long-term jobs that required bar admission. That percentage placed Washington & Lee 76th among ABA-accredited schools for job outcomes. Using the second, broader metric, 64.3% of Washington & Lee’s class secured full-time, long-term positions. But that only nudged the school up a few spots compared to other schools–to 73rd place.
In 2012, the numbers were even worse. Only 49.2% of Washington & Lee’s 2012 graduates obtained full-time, long-term jobs that required a law license, ranking the school 119th compared to other accredited schools. Including JD Advantage jobs raised the percentage to 57.7%, but lowered Washington & Lee’s comparative rank to 127th.
These numbers are depressing by any measure; they are startling when we remember that Washington & Lee currently is tied for twenty-sixth place in the US News ranking. Other schools of similar rank fare much better on employment outcomes.
The University of Iowa, for example, holds the same US News rank as Washington & Lee and suffers from a similarly rural location. Yet Iowa placed 70.8% of its 2012 graduates in full-time, long-term jobs requiring bar admission–more than twenty percentage points better than Washington & Lee. The College of William & Mary ranks a bit below Washington & Lee in US News (at 33rd) and operates in the same state. After excluding solos and school-funded positions (as my formula requires), William & Mary placed 55.9% of its 2012 graduates in full-time, long-term jobs requiring bar admission–significantly better than Washington & Lee’s results.
What’s the Explanation?
Law school employment outcomes vary substantially. Geography, school size, and local competition all seem to play a role. But Washington & Lee’s outcomes are puzzling given both the prominence of its third-year program and the stridency of practitioner calls for more practical training. Just last week, California’s Task Force on Admissions Regulation Reform suggested: “If, in the future, new lawyers come into the profession more practice-ready than they are today, more jobs will be available and new lawyers will be better equipped to compete for those jobs.” (p. 14) If that’s true, why isn’t the formula working for Washington & Lee?
I think we need to explore at least four possibilities. First and most important, the connection between practical training and jobs is much smaller than practitioners and bar associations assert. Employers like practice-ready graduates because those new lawyers are cheaper to train; an employer thus might be more likely to hire a practice-ready graduate than a clueless one. Most of those hiring decisions, however, involve choosing among applicants, not creating new positions. A few employers might hire a practice-ready graduate when they wouldn’t have otherwise hired any lawyer, but those job-market gains are likely to be small.
Practice-readiness can even reduce the number of available jobs. If a practice-ready lawyer handles more work than a less-experienced one, her employer may need fewer entry-level lawyers. Even the best-trained new lawyer is unlikely to grow the client base immediately. The number of legal jobs depends much more on client demand and employer entrepreneurship than on the experience that new graduates possess. Maybe the employers recruiting at Washington & Lee have recognized that truth.
Second, even when allocating existing jobs, employers may care less about practical training than they claim. Law school clinicians have noted for years that legal employers rarely demand “clinical experience” as a prerequisite for on-campus interviews. Instead, their campus interviewing forms are more likely to list “top ten percent” or “law review.” Old habits die hard. Employers have maintained for the last few years that “this time we really mean it when we ask for practical skills,” but maybe they don’t.
Third, employers may care about experience, but want to see that experience in the area for which they’re hiring. This possibility is particularly troubling for law schools that are trying to expand clinical and other client-centered offerings. As a professor who teaches both a criminal defense clinic and a prosecution one, I can see the ways in which these experiences apply to other practice areas. A student who learns to discern the client’s individual needs, as our defense lawyers do, can transport that lesson to any practice area. A student who weighs competing interests in deciding whether to prosecute can apply similar skills for any employer.
Unfortunately, however, I don’t think employers always share my impression. Over the years, I’ve had the sense that students from the criminal defense clinic are stereotyped as public defenders, do-gooders, or (worse) anti-establishment radicals–even if they took the clinic for the client counseling, negotiation, and representation experience. Prosecution students don’t encounter the same negative images, but they sometimes have trouble persuading law firms and corporations that they’re serious about practicing corporate law.
No matter how many clinics and simulations a law school offers–and Washington & Lee provides a lot–each student can only schedule a few of these experiences. If a student chooses experiential work in entertainment law and intellectual property, does the student diminish her prospects of finding work in banking or family law? Does working in the Black Lung Legal Clinic create a black mark against a student applying to work later for corporate clients?
I wonder, in other words, if the menu of clinical choices we offer students actually operates against them. Would it be better to cycle all students through a series of required clinical experiences? That’s the way that medical school rotations work. Under that system, would employers better understand that all clinical experience has value for a new lawyer? Would they be less likely to lock graduates into particular career paths based on the clinical experiences they chose? These are questions we need to pursue as we expand experiential education in law schools.
A fourth possible explanation for Washington & Lee’s disappointing employment outcomes is that the students themselves may have developed higher or more specialized career ambitions than their peers at other schools. Some students may have been so excited by their clinical work that they were unwilling to accept jobs in other areas. Others, buoyed by employers’ enthusiasm for practice-ready graduates, may have held out for the most attractive positions on the market. If this explanation has power, then Washington & Lee’s graduates may fare better as more months pass. Maybe practice-ready graduates get better jobs, and perform better for their employers, but the matches take longer to make.
What Do We Learn?
What lessons should we take from Washington & Lee’s 2011 and 2012 employment outcomes? First, the school still deserves substantial credit for its willingness to innovate–as well as for the particular program it chose. If law school remains a three-year, graduate program, then experiential work should occupy a larger segment of the curriculum than it has at most schools in the past. That makes pedagogic sense and, even if experiential learning doesn’t expand the job market, it should produce more thoughtful, well rounded attorneys.
Second, legal employers should take a hard look at the factors they actually value in hiring. What role does clinical experience really play? Do grades and law review membership still count more? Are employers discounting clinical work done outside their practice area? Are they even holding that work against a candidate? Law schools are engaging in significant introspection about the education they provide; it is time for employers to critically examine their own actions and hiring assumptions.
Third, law schools and employers should work together to design the best type of experiential education–one that prepares graduates for immediate employment as well as long-term success. If employers value a 4-credit externship with their own organization more than 12 credits of clinical work in a different area, we need to grapple with that fact. Schools might decide not to accommodate that desire; we might worry that externships are too narrow (or too exploitative of students) and encourage employers to value other clinical training more highly. On the other hand, we might agree that the best experiential education relates directly to a student’s post-graduate job. Unless we work together, we won’t figure out either the hurdles or the solutions.
Washington & Lee’s employment outcomes are a puzzle that we all need to confront. Graduates from most law schools, even high-ranking ones, are struggling to find good jobs. Experiential education can work pedagogic magic and prepare better lawyers, but it’s not a silver bullet for employment woes or heavy debt. On those two issues, we need to push much harder for remedies.
Nuts and Bolts
April 22nd, 2013 / By Deborah J. Merritt
Should we teach law students the nuts and bolts of law practice, such as how to record a property deed or file a discovery request in a criminal case? Law schools traditionally disdain this type of teaching, arguing that graduates will master these tasks in practice and that the particulars vary from place to place. But there are at least four reasons why we need to teach students the nuts and bolts of lawyering, including how to file basic practice-related documents.
First, mastering these tasks gives students self-confidence as new lawyers. A lawyer who can’t file documents is like a doctor who doesn’t know how to use a stethoscope. Sure, you can learn on the job, but you’re not much of a professional until you do. One of our conventional claims in legal education is that we give students the tools and confidence to master new areas of law. The same rationale applies to giving students a basic set of practice tools. If we want graduates to be self-confident professionals who are eager to expand their learning, we should ground them in both theory and practice.
Second, these tasks are more complicated than most academics claim. The process for requesting criminal discovery may seem obvious: find a form request, adapt it to your case, take the request to the courthouse, and give it to someone. But these “obvious” steps raise a host of issues: Does it matter what form you use? Have there been any recent changes to the rules, which make some forms outdated? Exactly who is that “someone” who receives the request at the courthouse? Do you also have to serve the prosecutor directly? What type of response should you expect–documents, videos, electronic files? Will you have to make your own paper copies or bring a blank DVD to record the response? How soon will the discovery arrive? How will you know if the prosecutor has produced everything you’re entitled to? Do you need to renew your requests to obtain new materials? If the prosecutor is slow, what are the appropriate ways to nag the prosecutor for quicker compliance? If the discovery conflicts with your client’s claims, what are the best ways to discuss the conflicts with your client?
These challenges range from the mechanical (do I need to bring quarters for the copy machine?) to the legal (do I need to renew requests?) to the interpersonal (what’s the best way to handle a procrastinating prosecutor or recalcitrant client?). Some traditionalists may protest that schools can teach issues falling in the last two categories without attempting to replicate the first. We can teach the rules governing discovery in a criminal procedure course, and we already offer classes on client counseling and professional responsibility. Surely we can teach those parts of lawyering without educating students on the need to take a blank DVD to the courthouse for discovery.
Most of these more complex issues, however, become salient only after a student tries to file a specific document in the real world. In campus classrooms, it’s hard to remember all of these challenges, much less teach them. Real-world practice seems simple and straightforward–until we actually try to perform it. In my experience, as a professor who has taught both doctrinal courses and clinical ones, the nuts and bolts of law practice are harder and more complicated than doctrinal professors assume. Even when an initial step is straightforward, it quickly leads to more complicated issues that we rarely touch in doctrinal classrooms.
The third reason to teach the mechanics of lawyering is that students learn theory better when it’s linked to practice. It’s one thing to read Federal Rule of Criminal Procedure 16(c), which imposes a continuing duty to disclose without renewed discovery requests. It’s another thing to file your own motion, wonder whether you need to renew that motion, check the rules in your own state, and discover (usually) that a single request is sufficient. Even putting quarters in the copy machine gives the abstract process of “discovery” a reality that makes learning easier.
Cognitive scientists have shown repeatedly that humans learn in part through three-dimensional experience. Our brains store information more efficiently when we can tie abstract concepts to real world actions, rather than simply spinning a web of shapeless principles. Professional expertise is like a climbing plant: it needs a three-dimensional trellis to support growth. The scaffold, in both learning and gardening, is usually a humble structure; but it’s just as essential as the showy leaves and fruits.
Finally, students who explore the nuts and bolts of practice learn important lessons about how contemporary lawyers streamline their work. Printing and filing individualized discovery motions is tedious and costly. Does the jurisdiction allow electronic filing? Does the prosecutor’s office have a shortcut for requesting discovery? After months of filing four-page discovery requests, the students in my criminal defense clinic learned that other lawyers were obtaining discovery by completing a one-page form available at arraignment. The particular process adopted in our courthouse may not matter in their future practice, but the general lesson will stick: In contemporary law practice, there’s often a faster and cheaper way to turn those nuts and bolts. The lawyers who keep up with those changes have a competitive advantage.
Yes, the nuts and bolts of law practice vary from state to state, and these practices shift over time. But the same is true of legal doctrine. We assume that educating students in a set of doctrinal principles will help them master new principles after graduation. The same is true of the nuts and bolts: students will have to master new processes constantly, but they will learn faster–and with more confidence–if they’ve fastened some nuts and bolts before graduation.
Core Faculty
March 24th, 2013 / By Deborah J. Merritt
The tenured and tenure-track professors form the core of a law school faculty. At most of our schools, those faculty teach doctrinal courses and seminars; they also devote considerable time to research. Over the years, we have added clinical and legal writing professors to our faculties, but they rarely are part of the core. These writing and clinical professors are paid less, usually lack tenure, and bear fewer expectations for scholarly research. They may vote on curricular matters; they may even chair committees and perform significant administrative work for the school. Their lack of tenure and lower status, however, make them more cautious about their votes and the opinions they voice. They know that they are outside of the core.
I would flip this structure. If I were starting a law school, I would hire experienced legal writing and clinical professors as the core tenure-track faculty. At existing schools, I would move as quickly as possible to that structure. Why? The legal writing and clinical professors are the ones who know best how to teach what we claim to teach in law schools: how to think like a lawyer.
Legal writing professors have analyzed the components of thinking like a lawyer, developed the vocabulary for explaining that process to students, and created hundreds of well designed exercises. Where does a student really learn how to analyze and synthesize cases? In a class of 75-120 students, where the professor calls on one student at a time for 150-200 minutes a week, offers little individualized feedback, requires no written product until the final exam, and tests students on issue-spotting during a 3-4 hour exam? Or in a class of 18-20 students, where the professor offers a sequence of assignments designed specifically to teach analysis, synthesis, and other critical reasoning skills; provides frequent individualized feedback; requires several written assignments; and grades students on their ability to produce well reasoned analyses of a problem that requires research, analysis, and synthesis of new cases and statutes?
The traditional law school classroom, with its case method and socratic questioning, is better than pure lecture at teaching critical reasoning. But it is still a woefully inefficient and ineffective process of teaching students how to read cases and statutes, how to synthesize those materials, and how to apply them to the facts of novel problems. During the last thirty years, our legal writing programs have developed at a remarkable rate. They now surpass other first-year courses in their ability to teach critical thinking. If you want a professor who knows how to teach legal analysis to first-year students, and who has studied the pedagogy of teaching those skills, then choose a legal writing professor.
The same is true of clinical professors in the upper level. These professors know how to build on the reasoning skills that students developed in the first year. They don’t greet students with the same casebook/socratic method of instruction. Whatever its merits in the first year, that style offers diminishing returns in the upper level and bears little relationship to how practicing lawyers learn new areas of law. Clinical professors are accustomed to helping students identify unfamiliar areas of law that may affect their clients, research those issues (using an appropriate combination of secondary sources, cases, and statutes), and think critically about the sources in connection with a particular case. They are also experienced at the other types of critical thinking (fact analysis, separating wheat from chaff in client or witness interviews, problem solving, etc) that students should encounter before graduation.
If we want a tenured law faculty that focuses on teaching students how to “think like a lawyer,” then legal writing and clinical professors fit the bill. I would put them at the core.
These professors could also teach doctrinal courses. Currently, we swamp legal writing professors with too many students. If each taught a section of 18-20 students, the professor could teach two legal writing courses (one each semester) plus a large section of a doctrinal first-year course. These professors would bring their pedagogic skills to those doctrinal courses, enhancing the teaching of analysis and reasoning throughout the first-year curriculum.
Similarly, a clinical professor could supervise a clinic each semester and also teach a doctrinal course one semester. Many clinicians already do that; their ongoing practices keep them up-to-date in many areas. A school could hire additional tenure-track faculty to teach other doctrinal courses, although I would encourage each of those professors to teach at least one writing, clinical, or simulation course: that is where we really teach students how to “think like a lawyer,” whether that thinking requires close reading of a case closely or thoughtful questioning of a client.
What about research? I’ve taught doctrinal, legal writing, and clinical courses during my almost thirty years in teaching. A course load of two reasonably sized writing courses and one doctrinal course allows plenty of time for scholarship. For a clinician, the balance is somewhat closer; it depends somewhat on the nature of the clinic and the clients’ demands. Many clinicians, however, have already shown their ability to combine clinical teaching with scholarship–as have writing professors. The strongest barriers to scholarly work by these professors, I believe, are the second class status we currently afford them, together with the constant suggestion that they’re not capable of excellent scholarship.
There is room for many types of teaching and scholarship on law faculties. Our biggest error, perpetuated at most law schools, has been keeping legal writing and clinical courses at the periphery of the curriculum and faculty. If we move those professors and their courses to the core, where they belong at any institution devoted to teaching students to think like lawyers, we would solve many of the pedagogic problems plaguing law schools today. We could teach doctrine and new “practice ready” skills, while improving the ways we teach traditional methods of thinking like a lawyer.
We could also solve some of our budget problems. Legal writing and clinical professors typically earn half of what tenured doctrinal professors bring home. What if we split the difference? If we paid all professors a salary between the one currently offered legal writing/clinical faculty and the scale used for tenured doctrinal faculty, we could moderate faculty salaries to where they were a generation ago. Those salaries would still exceed wages paid to professors in other disciplines and, I predict, would be more than enough to attract and retain talented professors in the academy.
Letter to the ABA
March 10th, 2013 / By Deborah J. Merritt
A “Coalition of Concerned Colleagues,” which includes me, has submitted a letter to the ABA Task Force on the Future of Legal Education. Although I can claim no credit for drafting the letter, I think it offers a succinct statement of the economic distress faced by law students and recent graduates: tuition has climbed dramatically, scholarships rarely address need, entry-level jobs have contracted, and salaries in those jobs have declined. The combination is oppressive for students and unsustainable for schools.
The brief letter notes a number of changes that might ameliorate this burden. All of those deserve exploration; I have posted on several already and will explore others in upcoming weeks. The letter, however, leaves a key point unstated: tenured professors at most schools will have to change their expectations if we hope to address this crisis. Faculty salaries and other perks account for a substantial share of the budget at most law schools. We can try to cut corners in other ways, by trimming staff and begging central administration to leave us a higher share of each tuition dollar. But in the end, we have to ask ourselves hard questions about the professional lives we’ve designed and the pay we demand.
Law professors earn high salaries, considerably higher than the pay drawn by most of our colleagues across the academy. Much of that money comes from the tuition paid by our students. With job and salary prospects down for lawyers, and with more transparency about those outcomes, fewer students are willing to pay our tuition. Faculty are going to have to adjust their financial expectations–and I think we should. We have enjoyed artificially high tuition and salaries for many years, due largely to our powerful economic status as gatekeepers to the legal profession. States didn’t create those restraints to enrich law schools, and we have served few interests (other than our own) by aggressively raising tuition and salaries over the last three decades.
In addition to lowering our financial expectations, faculty most likely will have to adjust the courses they teach, the ways in which they teach, and other professional activities. Distance education, for example, can help reduce the cost of legal education–but only if faculty are willing to use those techniques and then to consolidate courses across schools. One faculty member can teach Antitrust or Remedies to students at several law schools, but the faculty at those other schools must be willing to shift to other courses.
Adding apprenticeships and externships, similarly, will affect what current faculty do. We can’t expect students to pay for the full range of courses and scholarship our faculties now support plus the cost of apprenticeships or externships. These hands-on experiences will have to replace some of our current offerings, with traditional doctrinal faculty downsizing or taking on new duties.
Changes of this type are implicit in the letter from Concerned Colleagues, although I haven’t discussed these specifics with other signatories. Schools may find alternatives to the particular changes I’ve mentioned here; we need creativity to address the challenges before us. But it’s essential to avoid magic thinking when confronting those problems. The key difficulty for our graduates, students, and prospective students is that legal education has become too expensive for the career paths it supports. There is no magic solution to that problem in which we all become richer.
Law School Firms
March 7th, 2013 / By Deborah J. Merritt
A post-graduate law firm is an attractive idea. Recent graduates could develop skills under the supervision of more senior lawyers. The firm could provide secure placement for at least part of a school’s graduating class. And, if the firm charged low prices for the recent graduates’ services, middle-income clients might secure needed legal representation. Benefits like these are prompting some law schools to consider creating law firms associated with the school.
The idea parallels medical residencies, which provide hands-on training to all doctors. Most of those residencies occur in teaching hospitals linked to medical schools, a connection that offers a smoother, more rational path from classroom to practice than the legal profession currently offers.
Law schools exploring the creation of affiliated firms, however, readily acknowledge that the medical profession has a key asset lacking in law: private and government insurance underwrite a large portion of medical care. Teaching hospitals don’t have to chase ambulances looking for clients; the ambulances come to them–along with insurance money to pay for the patient’s care.
Establishing a client base is one of the biggest hurdles that post-graduate law firms must overcome. Arizona State’s Sandra Day O’Connor College of Law, which will launch a post-graduate firm this summer, plans to draw some business from other university initiatives. The ASU “Alumni Law Group,” for example, will work with start-up companies nurtured by ASU’s innovation center and with nonprofits assisted by its nonprofit center. The firm will also reach out to veterans and the Hispanic community.
The ASU business plan contemplates charging $125 per hour rather than the $250 per hour billed by other firms in the area. One question is whether that discount will be sufficient to draw sufficient clients to the firm. And if it is, will the firm draw work away from existing firms (including other ASU alumni) or will it tap new clients?
The University of Utah’s S.J. Quinney College of Law follows a different business model. Utah’s “University Law Group,” founded in November 2011, charges just $50 per hour and focuses on providing basic services to low- and mid-income families. Even at that rate, the project has had some difficulty building a client base. Dennis Gladwell, a retired BigLaw partner who supervises Utah’s University Law Group, notes that local firms have not referred smaller cases to the Law Group.
For law schools exploring creation of a post-graduate law firm, there are at least two indispensable references. One is an article by Bradley Borden and Robert Rhee, outlining the concept of a law school firm. The other is a report prepared by Hanover Research on programs that help law graduates transition to solo practice. That report focuses on solo incubators, but offers some information about post-graduate firms.
I’m intrigued by the concept of law school firms, and hope others will offer their insights. Here are two thoughts to start the discussion. First, I think these firms offer the most promise if they tap new client markets. Small businesses, as well as low- and mid-income individuals, have unaddressed legal needs. If we can respond to those needs, that’s a win-win-win for law schools and the legal profession: We would ameliorate a longstanding problem in our justice system, offer better training for new lawyers, and avoid the specter of simply shuffling legal business from one graduate to another. Indeed, if law schools can not find new client markets to tap, then we have to face the fact that we are graduating far too many lawyers.
Second, to tap those markets, I think law school firms need to re-think existing practice structures. We need to think hard about which tasks demand a senior lawyer’s attention, which ones can be handled by new graduates, and which ones can be completed by law students, paralegals, or computers. Creating a law firm in which graduates perform customized tasks for clients won’t prepare those lawyers for the way most law will be practiced in the twenty-first century. Nor will it allow those lawyers to support themselves by serving a low- or mid-income client base.
Despite the many challenges to establishing a post-graduate law firm, law schools have one advantage: We have access to an employee base that ranges from college students interested in exploring law practice, through law students, recent graduates, and experienced alumni. Can we use those personnel to create logical, efficient, and economical systems for handling legal problems? Could we, for example, use college interns and 1Ls for some paralegal and clerical tasks; trained 2Ls for some intake; 3Ls with licenses for basic legal work; residents for more advanced work; and supervising attorneys for more complex matters–with each level supervising the one below it?
We could add to this mix professors and practitioners willing to offer workshops or instructional materials to the public. Those efforts, like Houston’s Peoples Law School, would perform a public service and perhaps also draw clients. The post-graduate firm could also connect to alumni practitioners, referring to them cases that exceed the firm’s capabilities.
If we can design practice structures of this type, I think a post-graduate law school would have the best chance of achieving all of its goals. And, by bringing schools and practitioners together, it might help us create more efficient methods of delivering legal services.
Triple Treat
March 5th, 2013 / By Deborah J. Merritt
Coursera offers a platform for high-quality university courses delivered online. The company launched its first course less than a year ago, but has already reached 2.7 million participants. The platform now includes 62 universities located across four continents. Courses span a wide range of subjects and several languages. Imagine taking a course on Early Renaissance Architecture in Italy–from a regarded “Professore” at Sapienza University of Rome. Now imagine taking that course in your own living room, in English, for free. That’s Coursera.
As an educator, I’ve been curious about Coursera–but also vaguely uneasy. What does this type of massive online course mean for the future of education? Can it reduce the cost of legal education? Or will it further diminish the demand for our product? Does the Coursera pedagogy deploy techniques that we could borrow for smaller distance-learning initiatives? What happens when you mix high-quality educators with a type of education that some of us still associate with black-and-white televisions in the corner of a third grade classroom?
Now is your chance to explore some of those questions, while pursuing two other intellectual inquiries at the same time. I just signed up for Scott E. Page’s Coursera offering on Model Thinking. The course began on Monday, so you have time to join us.
Page is the Leonid Hurwicz Collegiate Professor of Complex Systems, Political Science, and Economics at the University of Michigan. He’s a distinguished scholar in the fields of game theory, organizational behavior, and institutional design. Some of you may know his book, The Difference, which offers an intriguing account of when diversity improves decision making. Page is also, as I’ve discovered from the first few online classes, an engaging lecturer.
Participating in Page’s course is giving me some ideas about online education. I’m tracking how he integrates lectures with readings. So far, so good: each stands alone but adds to the other. (The readings, by the way, are both free and easily downloadable from the course site). I’m experiencing the impact of hypotheticals that I answer during each lecture; I think they do engage me more in the material and add to my understanding. I’m also noting, of course, that every student is answering these questions; we’re not just listening to another student respond as we might in a lower-tech law classroom. I look forward to checking out the discussion forum and taking the quizzes.
Page’s offering is designed for tens of thousands of students; it’s a massive open online course (MOOC). The techniques used in that type of course won’t translate wholesale to every type of online offering. But I’m getting a sense of the possibilities–and some ideas for any online courses I design. That’s the first benefit of taking this course, learning something about online education.
The second benefit lies in learning about a series of social science models that touch upon legal issues. If you’ve wanted to know about Schelling’s segregation model, Granovetter’s collective behavior model, and others of their ilk, this course offers an excellent overview. So far, the lectures and readings are both comprehensible and focused; you’ll learn a lot with little wasted time. Page is especially skilled at illustrating the models in commonsense ways.
That brings me to my third, over-riding reason for taking Page’s course. Legal education rests on the premise that we teach students how to think like lawyers, and that this analytic frame adds value to many professional paths. Contemporary challenges to legal education question even that premise: Do we succeed in teaching students to think? I personally have little doubt that law school teaches students to think more critically. But do we offer special value compared to other graduate (or even undergraduate) programs? What analytic models do students learn in those other fields? Are those models equally valuable to the ones we teach in law? Are they more useful in a wider array of applications? Should we be teaching more different ways to think in law school? Or acknowledging that we offer just one of many valuable paths to success as a critical thinker?
I plan to use Page’s course as a way to think about thinking–how successful thinkers approach problems, how educators teach those approaches, and how law schools stack up compared to other disciplines. I’ll post from time to time about my reflections. Meanwhile, I hope to see you in class.
Using Capstone Courses to Assess Curriculum
February 22nd, 2013 / By Deborah J. Merritt
We make a lot of assumptions in legal education. One is that our courses teach students the skills and doctrine we hope to impart. But do they? Do our first-year doctrinal courses teach students to read cases and statutes critically? Do our writing courses teach them to communicate effectively in memos and to argue persuasively in briefs? Does an evidence course equip students to identify evidentiary problems, analyze them properly, and offer competing arguments when the resolution is unclear?
There is a way to answer these questions, through assessment of student outcomes. As Andrea Funk and Kelley Mauerman explain in this useful article, this type of assessment focuses on a whole cohort of students, not on a single student. To assess the success of a curriculum (or individual course), we examine whether the group has achieved the skills or knowledge we attempted to teach.
Funk and Mauerman explain this type of assessment, then apply it to the legal writing curriculum at their school. They demonstrate that focusing on a capstone performance (in this case, a final exam administered at the end of a four-course sequence) can illustrate whether the curriculum serves its intended goals. If students don’t perform as well as we want, we can’t blame the students; we need to go back and improve the curriculum.
Funk and Mauerman focus on assessment conducted by a professor (or group of professors) teaching a particular course or sequence. This type of assessment seems like an excellent place to start. Their article, however, made me wonder about assessment conducted by a group of faculty from different parts of the curriculum or–even better–by a group of faculty and alumni. If a group of faculty read selected finals from a variety of first-year courses, selected papers from third-year seminars, or written work prepared in our clinics, would we be pleased or horrified? Would we identify problem areas that we could address?
It would be particularly instructive to look at student papers together with some practicing alums. What would those alumni see in the work product? Could they identify the skills or analytic abilities that matter to them in practice? How well do they think the students are performing on those key abilities?
Assessment is a simple, but powerful, tool. The biggest hurdle may be the first one: motivating ourselves to take a hard, critical look at the success of our classroom efforts. For those willing to take that step, Funk and Mauerman offer a valuable guide to the assessment process.
Analyzing Cases and Statutes
February 16th, 2013 / By Deborah J. Merritt
Whatever else we teach in law school, most professors and lawyers agree that we need to teach students how to analyze cases and statutes. Lawyers must be able to read those key products of our legal system; analyze their meaning; synthesize their rules; apply the rules to new situations; and recognize ambiguities or open questions.
Why do students have so much trouble with these tasks, even in the third year of law school? These are difficult tasks, but they’re hardly insurmountable. Talented graduate students should be able to grasp them in less than three years. The answer, I think, is that we don’t teach these skills nearly as well as we assume. If we really wanted to teach students to analyze cases and statutes, we would adopt different methods. Here are some of my thoughts on that:
1. Modern courses in Legal Writing explicitly teach students how to analyze and synthesize legal materials, but doctrinal courses rarely do. The typical doctrinal course expects students to learn these skills simply by trying until they get it right. Without explicit instruction or individual feedback, students who get the wrong answers in class (or are mystified by their classmate’s correct answers) don’t know where they are going wrong.
2. The right answers in a doctrinal class usually require knowledge of the doctrine–not knowledge of how to deduce that doctrine from a case or statute. Students who are struggling for answers, therefore, usually turn to doctrinal study guides; they rarely seek additional help in analyzing and synthesizing legal materials.
3. Students learn what we test. Although we may say that our doctrinal courses teach students how to analyze legal materials, we rarely test those skills directly. How many doctrinal courses give students a new case or statute to analyze during the final? The Multistate Performance Test does that on the bar exam, but we rarely do it in law school. Our doctrinal courses test students on doctrine and issue spotting (within a defined doctrinal area), not on analyzing or synthesizing legal materials.
4. Thirty-five years ago, students might have had to analyze and synthesize in order to learn the doctrine and issue-spotting tested on exams. When I attended law school (1977-80), Gilbert’s outlines were sold discretely out of a single student’s locker. They weren’t very good, and there were no other study guides on the market. Today, each subject boasts a half dozen or more study guides–many of them quite good. Websites like Outline Depot allow students to exchange outlines keyed to an individual professor’s class. I’ve looked at the outlines for my Evidence class and, again, they’re pretty good. If we test students on issue spotting and doctrine, then it makes sense to study the doctrine and issues that the professor stresses in class. It’s not necessary to analyze and synthesize cases or statutes.
5. Today, when the doctrine is readily available, we tell students that they should read all of the cases and statutes for their doctrinal courses because that’s a good way to refine their lawyering skills. But that’s such an unrealistic path that students quickly tire of it. Many casebooks include just fragments of cases or statutes, so the students learn little about analysis. If cases are drawn from multiple jurisdictions, students don’t learn real synthesis; they learn to synthesize a blended rule from cases handpicked by the casebook author.
Most important, no practicing lawyer would proceed as we suggest. Close analysis of cases and statutes take significant time; a practicing lawyer would save that time for when it is necessary. For established doctrine, the lawyer would rely upon treatises, other authoritative summaries, or her own accumulated knowledge. The lawyer would read only the newest cases and statutes (those that have not yet been fully analyzed) or the ones with potential ambiguities related to her case.
Students quickly grasp that the law school way of learning doctrine, by reading a case for almost every point, is unrealistic. It’s also tedious and unnecessary, so they don’t do it. In my experience, upper-level students read assigned cases or statutes very lightly–if at all. They know that the bottom line holding will be most important for class discussion and the exam; they also know that a quick read, class notes, or a study guide will provide that information most of the time. If the case is a more complicated one that requires close reading, they’ll learn that in class when the professor embarrasses someone through socratic questioning–and the professor will eventually reveal the nuances.
In other words, I think we discourage students from flexing their analytic skills by demanding that performance when it’s not necessary. If we saved case and statutory analysis for the materials that demand close scrutiny, students would be more likely to engage in that process and learn from it.
The number of cases and statutes requiring close scrutiny varies by subject matter. Constitutional law requires close reading of more cases than Evidence does. (I’ve taught both courses, so speak from experience there.) Some code courses require almost daily analysis of code sections, but very little case analysis. We should be careful, though, in assuming that all of our subjects require daily case or statutory analysis; many of them don’t. If we want to hone analytic skills in our doctrinal classes, we could do so more realistically by requiring those skills only for the material that demands it.
6. If we are serious about honing case and statutory analysis in doctrinal courses, we should be willing to give more individual feedback–or to create online modules to do that. Listening to the professor question another student is not a very effective way to learn close analysis. Instead, we could require every student to complete online exercises related to key cases or statutes. Using fairly rudimentary software, we could ask every student to (a) highlight case language that expresses a court’s holding; (b) highlight language that expresses ambiguities or openings for future distinctions; (c) answer questions about how hypothetical problems might be resolved under a case or statute; and (d) point to the specific language supporting conclusions about those hypotheticals. In each case, the software could tell the student what she had gotten right or wrong.
In class, we could discuss more advanced points about these cases or statutes, knowing that each student had read the underlying source closely enough to answer the required questions. We could also discuss points that many students missed, since the software could aggregate those responses. And we could examine the novel insights that some students might have generated. E.g., perhaps one student saw ambiguous language that the professor missed in creating the exercise.
In sum, I think we have a long way to go if we aim to teach case/statute analysis and synthesis in our doctrinal courses. Currently, we teach primarily doctrine in those courses–and there are more efficient ways to teach doctrine than through the case method. If we really focused on teaching analysis/synthesis in some courses, we could teach those skills more efficiently as well.
About Students and the Opportunity Cost of Curriculum
February 12th, 2013 / By Robert Rhee
The law school admissions process is odd. Among the major professional schools, law school has the lowest barrier to entry in terms of personal commitment to the profession. A student does not choose medical school as a “default” option. A student cannot get into a credible business school unless she has significant work experience. Law schools require only a GPA and an LSAT score. Many law schools may not even ask the most important question, “Why do you want to be a lawyer?” The typical law student is probably 22-23 years old. She may never have worked a regular job, worked on a project where others depended on her, filed a tax return, or bought a car or house. This profile has important implications for curriculum.
Let me digress a bit here. Two weeks ago, I was in California for a symposium on legal education, and this gave me a chance to see some old friends from business school. One of my friends has a spouse who is in her spring 3L at a Top Ten law school (she does not have a job yet and the worst case plan is to work a year for free on the hopes of a job opening in her desired career). He is very involved in her world of law school, and sometimes even attends her classes and socializes with her law school friends. So we naturally got around to talking about law schools and one avenue of conversation was whether law students were smarter than our Wharton classmates. (more…)
» Read the full text for About Students and the Opportunity Cost of Curriculum
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