Returning Soon!
December 24th, 2015 / By Deborah J. Merritt
It has been a busy semester, and I’m blogging this month at The Faculty Lounge. But I look forward to returning soon with more thoughts about legal education and the legal profession. Happy holidays to all!
Corrected Post on July Exam Results
September 16th, 2015 / By Deborah J. Merritt
[To replace my post from yesterday, which misreported Oklahoma’s pass rate]
States have started to release results from the July 2015 bar exam. So far the results I have seen are mixed:
Iowa’s first-time takers enjoyed a significant increase in the pass rate, from 82% in July 2014 to 91% in July 2015. (I draw all 2014 statistics in this post from NCBE data).
New Mexico’s first-timers, on the other hand, suffered a substantial decline in their pass rate: 88% passed in July 2014 while just 76% did in July 2015.
In Missouri, the pass rate for first-timers fell slightly, from 88% in July 2014 to 87% in July 2015.
Two other states have released statistics for all test-takers, without identifying first-timers. In one of those, Oklahoma, the pass rate fell substantially–from 79% to 68%. In the other, Washington state, the rate was relatively stable at 77% in July 2014 and 76% in 2015.
A few other states have released individual results, but have not yet published pass rates. It may be possible to calculate overall pass rates in those states, but I haven’t tried to do so; first-time pass rates provide a more reliable year-to-year measure, so it is worth waiting for those.
Predictions
I suggest that bar results will continue to be mixed, due to three cross-cutting factors:
1. The July 2015 exam was not marred by the ExamSoft debacle. This factor will push 2015 passing rates up above 2014 ones.
2. The July 2015 MBE includes seven subjects rather than six. The more difficult exam will push passing rates down for 2015.
3. The qualifications of examinees, as measured by their entering LSAT scores, declined between the Class of 2014 and Class of 2015. This factor will also push passing rates down.
Overall, I expect pass rates to decline between July 2014 and July 2015; the second and third factors are strong ones. A contrary trend in a few states like Iowa, however, may underscore the effects of last year’s ExamSoft crisis. Once all results are available, more detailed analysis may show the relative influence of the three factors listed above.
Fluid-Intelligence Affirmative Action
September 13th, 2015 / By Deborah J. Merritt
I wrote in a recent post that many affirmative action programs reflect a belief in fixed intelligence. In these programs, faculty assume that affirmative-action admits have less ability than their white peers. That ability, faculty further assume, condemns those admittees to low law school grades. In addition, the presence of less qualified minority students may aggravate the stereotype threat that can impair performance by all minority students–leading to still lower performance overall.
I then, however, explained that a belief in fixed intelligence is mistaken. Intelligence is much more fluid than many individuals understand. Adopting a fluid-intelligence mindset, moreover, can itself enhance achievement. This brings us to the questions: How does a belief in fluid intelligence affect our concept of affirmative action? And how might those beliefs affect the performance of minority students?
Conceptualizing Affirmative Action
When viewed with a fluid-intelligence perspective, affirmative action programs take on a very different character than the one I described earlier. This perspective, first, assumes that college grades and LSAT scores do not fully reflect the existing intelligence of minority students. Stereotype threat, economic disadvantage, cultural signals, and other forces can reduce a minority student’s performance when compared to that of a white student with similar abilities. Thus, the true ability level of an admitted minority student may be higher than that of white students with similar scores.
Second, the fluid-intelligence perspective assumes that the minority student’s capabilities will grow throughout law school. Education expands intellectual ability, and law school offers a particularly rigorous form of education. The minority student, like white students, will be more capable at graduation than at admission.
Finally, and most important, the fluid-intelligence perspective suggests that the minority student has more potential for growth than the white student with similar credentials. Why? Because almost all minority students have been hampered by a lifetime of implicit bias and stereotype threat. They are also more likely than white students to have suffered from low-income backgrounds, few role models, and inadequate schools. All of these factors can reduce the ability that an individual displays in college or on the LSAT, but they don’t erase the potential for achievement gains.
A good affirmative action program assumes that, if we place minority students in an intellectually challenging but supportive environment, and if we eliminate the stereotype threat and implicit bias in that environment, the minority student will make greater intellectual gains than a white student who enters that environment with the same initial achievement level.
The same, of course, can be true for some white students. Some of them suffer from inferior schools, few role models, and stereotype threats of their own. These students will also benefit disproportionately from a challenging, supportive academic environment. The gaps for minority students, however, tend to be much, much larger. The potential for gain, likewise, is much greater.
The Theory In Action
This three-part discussion, I hope, shows that affirmative action programs need not create stereotype threat or harm minority students. On the contrary, properly conceptualized programs recognize the ability of minority students to make greater gains than similarly credentialed classmates.
What, then, holds them back? Why did Alexia Marks and Scott Moss find that minority law students receive lower grades than white classmates with similar entering credentials? The answer almost certainly lies in our failure to create the type of academic environment described above.
I invite law professors and administrators to reflect on their own attitudes. How many of us believe that intelligence is fixed? That belief can negatively affect student learning.
If we believe in fluid intelligence, do we recognize that minority students may be able to make special gains during law school? Do we eagerly embrace that possibility, working to create the conditions that will bring those gains to life? Are we giving students wise feedback that affirms their ability to meet high standards? The outcomes described by Marks and Moss suggest that we’re not doing nearly as much as we could.
To what extent, finally, does our traditional culture hamper the intellectual development of all students–and of minority students in particular? A lack of individualized feedback, strict grading curves, and overt tracking (e.g., election to the primary law review) probably reinforce notions of fixed intelligence.
Are there ways to change these academic traditions? Or to create new approaches that override their impact? Can we cultivate a belief in fluid intelligence–among both students and faculty–that will give more students an opportunity to grow their intelligence? That is one of the challenges facing law schools.
Is Intelligence Fixed?
September 8th, 2015 / By Deborah J. Merritt
This post is part of a series discussing the challenges that minority students face in law school. You can read previous posts here, here, and here. As I noted in my most recent post, our beliefs about intelligence can affect both student performance and the impact of affirmative action programs. I also suggested that many law students and professors believe that intelligence is fixed. Indeed, the law school culture seems to promote that belief. But is intelligence really fixed?
We know that the expression of intelligence is not fixed. Individuals exhibit different degrees of intelligence under different circumstances. The phenomenon of stereotype threat illustrates that fact: individuals exhibit lower levels of intelligence when tested under circumstances suggesting that members of their identity group are expected to perform poorly.
But does intelligence itself vary? Or does it remain fixed, defining an outer limit of each individual’s potential? One answer is that it doesn’t matter much. If context can affect the expression of intelligence, as happens with stereotype threat, we can focus first on developing academic contexts that enhance the expression of intelligence among all students. Perhaps we can secure sufficient gains in the expression of intelligence–for both minority and white students–that we need not worry whether their underlying intelligence is fixed.
There is, however, significant evidence that intelligence is not fixed. There is equally important evidence that our beliefs about intelligence affect academic performance.
Fluid Intelligence
The psychologist Scott Barry Kaufman dismisses the notion of fixed intelligence as a myth. “The bottom line,” he writes, “is that intelligence was never, and will never, be fixed at birth.” Intelligence grows over the lifetime and even over generations. There is little doubt that intelligence is fluid.
Fluid does not mean completely unrestrained. As Kaufman notes in the article linked above, intelligence as measured by IQ tests remains relatively stable over an individual’s lifetime. This means that individuals at the bottom, middle, and top of the IQ scale tend to retain those relative positions–even as the intelligence of all individuals increases with age and experience. Still, there is considerable fluctuation in those relative positions, especially if individuals are exposed to enriching experiences (or removed from constrictive environments).
This has important implications for legal education. If intelligence is not fixed, then some of our traditional practices look educationally suspect. Our lack of feedback, for example, deprives students of opportunities to enhance their legal intelligence. Our assumption that skills like client counseling reflect innate personality traits similarly prevents us from expanding students’ intelligence by coaching them in these abilities.
But there’s more: Our very belief in fixed intelligence can restrain student achievement.
Fixed and Growth Mindsets
Stanford psychologist Carol Dweck has led a decades-long exploration of the relationship between achievement and beliefs about intelligence. Her work, summarized in the popular book Mindset, shows that people who believe in fluid intelligence (a “growth mindset”) achieve more than those who believe that intelligence is fixed (the “fixed mindset”).
Encouraging students to adopt a growth mindset, therefore, can spur achievement. Dweck and her colleagues have illustrated this effect in numerous studies. Their most recent effort demonstrates the feasibility of low-cost, large-scale interventions to achieve significant gains in student achievement.
This line of scholarship has even more profound implications for legal education. Our grading scales and culture seem to nourish the belief that legal aptitude is fixed. First-year performance constrains employment prospects for many students, signaling that the ability they demonstrated that year is an accurate measure of their long-term potential. Similarly, many students express frustration that they receive middling grades whether they study a little or a lot. Without more individualized feedback, they conclude that their abilities are fixed and that hard work is pointless.
Research by Dweck and other psychologists suggests that, if we could reform our culture to change these mindsets, all of our students would achieve more. That in itself would be a laudable goal.
Back to Affirmative Action
I started these posts, however, by exploring the particular plight of minority students. In my last post, I extended that journey to consider the impact of affirmative action programs. As I noted there, programs rooted in a fixed-intelligence belief may depress the grades of minority students (although those programs may still confer other benefits by opening doors to more elite schools).
In my next and final post of this series, I will describe a different type of affirmative action program–one committed to a belief in fluid intelligence. As we’ll see, that type of program could enhance performance by minority students. A culture endorsing fluid intelligence, furthermore, could improve achievement among all law students.
Affirmative Action and Fixed Intelligence
September 6th, 2015 / By Deborah J. Merritt
I wrote this summer about a study demonstrating a worrisome trend among minority law students: They received lower grades than white peers with similar LSAT scores, undergraduate achievements, and work experience. Part of the problem, I suggested in a second post, may stem from the psychological phenomenon of stereotype threat. When individuals are placed in situations in which a group stereotype suggests that they will perform badly, they do just that. Remove the stereotype threat and performance improves to match that of other individuals with similar experience and abilities.
Stereotype threat arises in part from the implicit racial bias that permeates our culture. If professors, classmates, friends, and family members see minority students as less capable than white ones, those perceptions can become self-fulfilling prophecies. Unconscious bias, unfortunately, is invisible only to the holders of that bias; targets readily perceive the negative assumptions and respond to them.
What About Affirmative Action?
How does affirmative action affect this dynamic? Some critics of affirmative action suggest that special admissions programs simply aggravate stereotype threat–ultimately harming the students they intend to help. Minority students, they reason, know that at least some members of their group lack the credentials of white students; they are “less qualified” to attend law school than their peers. This knowledge, critics reason, will trigger an extreme form of stereotype threat. Knowing that their racial/ethnic group is less qualified than the dominant white group–and that professors know this–minority students will perform poorly.
Does this phenomenon explain the poor performance of minority students in law schools? Should we abandon all traces of affirmative action to improve the achievements of minority students?
Not from my perspective. Instead, we need to examine our own attitudes toward affirmative action. Those attitudes, which inform a law school’s culture, spell the difference between programs that assist minority students and those that may harm them. To explain this, we also need to explore the nature of intelligence: Is an individual’s intelligence fixed at some point early in life? Or is it fluid? I will explore these issues in a series of posts.
Fixed-Intelligence Affirmative Action
Many critics of affirmative action assume that intelligence is fixed. When we admit minority students with lower LSAT scores than their white classmates, these critics assume, we know that the minority students will perform more poorly in law school. They have less law-related intelligence (as measured by LSAT tests) and, thus, are fated to lower performance.
These critics acknowledge that intelligence is not the only factor affecting achievement. Hard work, catch-up tutoring, and faculty encouragement, they concede, may improve a student’s grades. In their view, however, this simply adds to the cost of affirmative action programs. Schools must devote special resources to tutoring programs, and faculty must provide special encouragement to minority students. The pay-off, from the critics’ perspective, is small. Minority students, they argue, would fare better if they attended schools where their fixed intelligence matched that of their white peers.
Many supporters of affirmative action programs also believe in fixed intelligence. These supporters quietly assume that minority students have less law-related intelligence than their white peers, but they blame that difference on historical and contemporary discrimination. Since society has damaged minority students, these professors reason, we owe them special consideration in admissions. We should give them the opportunities they might have had if they had not experienced a lifetime of overt and subtle discrimination. With hard work, special tutoring, and faculty encouragement, at least some of these students will achieve more than their predictors indicate. Even those who finish near the bottom of the class will benefit from the reputation and network connections of a more prestigious school than one they might have attended without affirmative action.
These attitudes, whether expressed critically or supportively, may well reduce the performance of minority students. In addition to creating stereotype threat, these attitudes tell minority students: “Intelligence is fixed by the time students enter law school and, for whatever reason, yours is lower than that of your classmates.” As we’ll see in my next post, belief in fixed intelligence harms students as much as stereotype threat. Minority students, therefore, suffer a double injury when surrounded by these attitudes.
These attitudes, it’s important to note, need not be overt to affect students. Few professors announce to their classes: “Your intelligence is fixed. You’ve either got it or you don’t. See you at the end of the semester.” The beliefs, however, are there. Law school, in fact, seems centered on a theory of fixed intelligence. Our focus on LSAT scores (aggravated by the US News ranking competition), the lack of feedback designed to enhance performance, and the strict grading curves suggest that we believe our students’ intelligence is fixed.
Add assumptions about low-performing minority students to that mix, and you have a recipe for stereotype threat and reduced performance–even among minority students with entering credentials that match those of white peers.
Another Way
Fortunately, it doesn’t have to be this way. There is a way to conceptualize affirmative action programs that is both more cognitively accurate and more supportive of minority students. If we can reform our law school culture to embrace the reality of fluid intelligence, we will reveal the true justification for affirmative action programs, allow minority students to reach their full potential, and improve learning for all students. In my next two posts, I will explore the concept of fluid intelligence and how it can inform our beliefs about affirmative action.
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.
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