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Review: The Integrated Law School Curriculum

Review: The Integrated Law School Curriculum

By Andrea Boyack, Washburn University School of Law

Adam Lamparello, The Integrated Law School Curriculum, 8 Elon Law Review 407 (2016) [Read fulltext at Elon Law Review website (664 KB PDF)]

Professor Lamparello, Associate Dean for Experiential Learning at the newly inaugurated Indiana Tech Law School, lays out the case for a law school model integrating doctrinal, practical, and clinical legal education and then explains his school’s innovative plan to achieve that vision. By so doing, he and his institution take one brave step to follow the ABA’s advice for legal academia, to evolve through experimentation (“take thoughtful risks” – see Report and Recommendations of ABA’s Task Force on the Future of Legal Education (304 KB PDF).

The justifications cited by Lamparello for an integrated law school curriculum are as familiar as they are compelling. He echoes the call for vertical integration among courses as a way to better prepare students for legal practice, stating that “law schools must re-think the traditional ‘silo’ model of legal education, in which the three pillars of legal education – doctrinal, skills, and clinical courses – are nestled into separate parts of the curriculum, as if one has no relation to the other.” He notes that learning is best done in context, that assessments should be coupled with opportunities for students to incorporate feedback and revise assignments, and stresses the broad and important role for legal writing instruction. He explains the meaning and importance of seven types of competency-based learning outcomes.

But in addition to joining the chorus calling for better curricular integration, student assessment, and faculty collaboration, Lamparello also sings an interesting solo detailing his vision for precisely how this integration might be designed. Lamparello advocates for a quantum leap – rather than incremental – type of curricular change, noting that “a fully integrated, competency-based, and experiential program of legal education requires structural and sequential changes to the curriculum.” His vision involves an unusually high level of collaboration among faculty members so that classes all operate in support of and in the context of one organizing and comprehensive, multi-issue hypothetical that law students will be “litigating” throughout their three years of law school. This cross-curricular hypothetical sets up the framework for students to immediately start integrating various doctrinal areas of the law.

The sample hypothetical included in Lamparello’s article raises a surprising number of diverse issues, ranging from divorce and domestic violence to fraud, fine print, and consumer financial protection to due process rights and judicial ethics to negligence, causation and manslaughter. It also sets up a framework for students to learn lawyering skills in a chronological way (in the order in which they would be used in practice). For example, first semester students would perform a client interview, draft a retention agreement, research case law on first-year topics, and draft a predictive memorandum and then a complaint. Second-semester students would engage in the next steps of simulated litigation practice, including drafting motions, answers, and discovery requests. Third semester students would draft an appellate brief. The cross-curricular hypothetical does not substitute for doctrinal classes, but rather sets up a simulated laboratory for principals, presumably learned in a more traditional Socratic exchange, to be applied and honed. Each first-year doctrinally focused course would be carefully organized to coincide with and support the cross-curricular hypothetical. For example, criminal law would cover mens rea and actus reus to prepare the students to draft interview questions for the hypothetical client charged with manslaughter. Contract formation principals would support student drafting of a retention agreement. And civil procedure study of pleading requirements and jurisdiction would immediately be put into context through drafting the jurisdictional and fact sections of a complaint.

In addition to having all courses link together through the core hypothetical fact scenario, Lamparello’s vision also includes a six-semester legal writing program and a five-semester clinical program that would support the school’s overarching student learning objectives. The described legal writing program would provide students with specific instruction and individual feedback on their written work products in connection with the cross-curricular hypothetical, and its six-semester structure allows deliberate instruction not only with respect to basic persuasive writing and legal document drafting, but with respect to transactional drafting, the art of editing and re-writing, and methods of narrative storytelling. The five semesters of “live-client clinic” experiences are designed to complete the comprehensive bridge into practice, giving law students client experiences as early as their second semester, building up from screening interviews to litigation teams, to small-scale litigation representation, to “capstone course” primary client representation of clients “on complex matters at the trial and appellate level.”

Lamparello’s vision is undoubtedly ambitious, both in terms of how carefully tailored the three-year plan and each semester must be, but also in terms of how intensively faculty must collaborate to achieve success within the plan. Excruciatingly detailed preparation and collaboration would be required to successfully implement the program, from coordinating specific dates and content for topic coverage in each course and coordinating assignments among various faculty members. And this planning and implementation of the integration plan is just on the front end of the three-year program. Faculty must also continually coordinate and devote significant time and resources to provide students with the high level of individualized feedback and instruction that Lamparello envisions.

It may be that Lamparello’s truly integrated three-year plan for law school learning is unattainable, at least in an imperfect world with limited resources and instructional competencies. But his shoot-for-the stars aspirations can at least shake things up in the legal academy and inspire others to think of ways – large and small – to achieve the curricular design improvements that nearly all pedagogical scholars are calling for: integration of doctrines, skills, and practice; breaking down walls between topical silos; and building bridges from legal study to the actual practice of law.

Summer Teaching: a Time to Relax and Listen to the Students

Summer Teaching: a Time to Relax and Listen to the Students

By Sandra Simpson, Gonzaga University School of Law

I volunteered to teach Legal Writing III this summer to take some load off of the fall enrollment and to get back into the swing of teaching legal writing. I will be returning to legal writing part-time in the fall while still maintaining my position as the associate dean of academic affairs. It felt good to get back into the legal writing classroom: a feeling of coming home if you will. My students have just finished drafting and receiving feedback on their client demand letters and are knee deep in understanding summary judgment motions. They had drafted outlines of their arguments and research for me to review. After reviewing them, it was clear to me that, as I expected, they were struggling with melding the elements of the tort with the standard on summary judgment.

Over the weekend, I plowed through mountains of examples and exercises I have used over the years to help the students put together the pieces of summary judgment and elements of the underlying law. The methods I have used in the past just did not seem to be what I needed. Frustrated and tired on Sunday night (I teach on Monday mornings), I threw in the towel. I had no idea how to bring together their struggles. I had a lesson plan: two hours of exercises designed to reach all types of learners; exercises designed to engage the learner. As I lay in bed with ideas swirling around in my head, the thought came to me. What about letting the students dictate how the class will run by expressing their needs. I was on to something.

The next morning on my morning run, I put the pieces together in my head. I began class with a simple question: what did we do last week and what do you still need in order draft your summary judgment documents for next week. What flowed from that was magic in my teaching book. Their needs and questions ranged from the substantive to the very technical court rule questions to the simple regarding where to find the forms. My mind quickly organized a plan of attack. We started with substantive and moved toward the technical and the simple. My strategy was to tackle the hard stuff first. It was the first class of the summer which I felt really out of control of the substance and the structure of the class. It was also the first time there was high energy in the room and a sense of community. The lesson learned from this class is to step back every few weeks and listen to the students and give them what they think they need not what you think they need.

Review: Dawn of the Discipline-Based Law Faculty

Review: Dawn of the Discipline-Based Law Faculty

By Barbara Lentz, Wake Forest University School of Law

Lynn M. LoPucki, Dawn of the Discipline-Based Law Faculty, 65 Journal of Legal Education506 (2016) [Read fulltext at Journal of Legal Education website]

For this month, two articles are reviewed to consider the implications of a study describing current hiring practices of top-ranked law schools in tandem with a classic description of the caste system in the legal academy. Can we reconcile the predicted transformation of the legal academy with the demands of the ABA, bar and students to prepare practice ready lawyers?

First, a review of the study on hiring of JD-PhD candidates for entry-level law faculty positions at top 26 (footnote 1) ranked law schools presented by Lynn M. LoPucki in “Dawn of the Discipline-Based Law Faculty,” 65 Journal of Legal Education 506 (2016). Professor LoPucki studied entry-level, tenure-track hiring at the top 26 ranked law schools for the 2011-15 period and found that 67% of these hires held JD-PhD degrees. For the same period across the legal academy, he reports that 21% of entry-level tenure-track hires by American law schools held both JD and PhD credentials.

Contrary to conventional wisdom that JD-PhD candidates would spend more time preparing for their teaching careers than JD-only candidates, LoPucki reports that the JD-PhD hires spent half a year less than JD-only hires preparing for their careers in law teaching. (Emphasis in original). While PhD credentialed hires do have training in producing scholarship (and many have published prior to hiring), one-third of 2011-15 hires had no legal experience (up from about one-fifth in a prior, 2010 study).

“The PhD is now a credential acquired in lieu of legal experience,” reports LoPucki. JD-PhD hires are both less likely to have legal experience (training in clerkships and law firms) and likely to have less of it – only 43% of the JD-PhDs had practiced law, and averaged only 0.9 years of legal experience compared to 86% of JD-only hires with an average of 3.6 years legal experience. At higher ranked schools, LoPucki found a negative correlation between length of time preparing for a legal teaching career and school ranking. Even for JD-only hires, he writes, “the top twenty-six schools do not prefer candidates with more legal experience.”

Professor LoPucki observes that the transformation of law faculty to discipline-based (rather than JD-only) has accelerated sharply over the past few years, and predicts that a transition to hiring JD-PhDs almost exclusively “may already be past the point of no return.” He writes that this transformation “is occurring without meaningful debate” over the merits of hiring JD-PhDs with little (or no) legal experience at the same time that law schools are being challenged to produce practice-ready graduates. He concludes by opining that the shift to JD-PhD hiring will “reduce the [law] schools’ capacity to prepare students to practice law.”(2)

Professor LoPucki confined his study to tenure-track hires, the top tier in the law school caste system described by Kent Syverud more than a decade ago. To engage in meaningful debate over the shift to JD-PhD hiring and its potential impact on law schools’ ability to prepare practice ready graduates, consider re-reading the classic essay written in 2001 by Kent Syverud, now Chancellor and President of Syracuse University: “The Caste System and Best Practices in Legal Education,” 1 Journal of the Association of Legal Writing Directors 12 (2002) (164 KB PDF).

President Syverud listed best practices for teaching law and described how the adoption of best practices in legal education was retarded by law schools’ “unique caste system” which categorized both people and teaching methods in ways harmful to the outcomes of legal education: “Strong caste lines discourage dissemination of best practices where, as in legal education, it is lower castes that have been more responsive and innovative in applying learning theory inside and outside the classroom.”(3)

Syverud distilled substantive best practices into three basic requirements: 1. the law teacher to know individual students well enough to reveal and correct individual misconceptions; 2. Law students to acquire deep understanding of the substance of what they study; and 3. a learning community in each class where students could take charge of their own learning through interactions with their teacher and peers. Best practices (drawn from sources including an ILTL symposium) included student-faculty contact in and outside of class; active and cooperative learning; prompt and frequent feedback; clear communication of high standards; and diverse teaching methods to reach all learners with a variety of techniques. Not only were these best practices time consuming, but they also were identified with the lower castes in the law school.

Syverud described seven castes present in most American law schools. The top tier were tenured and tenure track faculty: they are paid the best, have the most security, rarely change what or how they teach; value research but abhor grading and most often teach a large lecture class with a single final exam. Deans and administrators were the second caste: because they talk with judges and the bar more than the tenured faculty, deans tend to be more concerned with teaching methods and bar passage rates. Third are clinical faculty: they emphasize skills and learning by doing, but some are seeking to produce scholarship to look more like the tenured faculty (while others resist efforts of legal writing faculty to improve their status). Fourth, and lower caste, are legal writing faculty: they have lower pay and less respect, greater teaching loads and face caste discrimination. Law Librarians have an unusual status, being led by a high caste tenured faculty member and providing service to the tenured faculty: this class also has the best awareness of technology and its implications for best practices in legal education. The lowest teaching tier are adjunct faculty, which Syverud described as “temporary foreign visitors” from rich and civilized countries who may also be more likely to adapt what and how they teach in order to meet the changing needs of the legal profession they are immersed in every day.(4)

Because the lower caste legal writing faculty were more likely to interact with students, give weekly assignments and team exercises and provide frequent formative feedback, upper castes were unlikely to adopt those best practices (and others) for fear of being viewed as lower caste. Further, most of the teaching effort was delegated to the lower castes, particularly to the people who teach writing. Just as Syverud observed in 2001, at some institutions people, teaching and stereotypes have diverged from his described system, yet “caste still seems awfully powerful and enduring.”

What might LoPucki’s predicted shift in hiring exclusively JD-PhD candidates for tenure-track, top caste faculty with little to no legal experience, combined with the enduring caste system Syverud described which allocates few resources but much teaching work to lower castes mean for law schools challenged to prepare law students for practice? Perhaps that discussion could also be part of the meaningful debate suggested by Professor LoPucki as we consider the implications of staffing in meeting demands on law schools to better prepare students to practice law.

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(1) LoPucki explained that he intended to study the top 25 law schools, but in the 2012U.S. News and World Report rankings, there was a 5-way tie for 22nd place, meaning 26 schools were surveyed for the 2011-15 period.
(2) LoPucki also notes that another effect of requiring a costly credential like a PhD may be to reduce racial and gender diversity.
(3) Syverud, at 18.
(4) Syverud described the law school staff as the untouchable caste, and deplored how law students learned to treat staff poorly by modeling the behavior of the upper castes.

Let’s Talk About I-R-A-C

Let’s Talk About I-R-A-C

By Tonya Kowalski, Washburn University School of Law

Love it or not, IRAC forms the backbone of any legal analysis. How we talk about it with students-and when-can greatly influence their ability to perform legal analysis skillfully across multiple courses. Many of you are now grading essay exams and perhaps seeing surprising shortcomings in the analysis. How could the class have spent the past 14 weeks painstakingly testing the logical limits of various rules, dissecting their premises, and so on, only to receive an answer that leaps immediately from a conclusory statement to a brief discussion of nothing but facts? In addition to more common tools such as practice or sample essay tests, you may wish to try a few ideas aimed at the transfer of learning.

  1. Harmonize mixed messages. If you talk about IRAC to your students, poll colleagues to see how they discuss the same concepts with students. Our law school did so about two years ago and discovered that while we thought we were sending consistent messages to our students about how to perform IRAC for essays, we often used conflicting terminology, taught varied acronyms (IRAC, CRAC, CREAC, CREXAC, FIRAC, etc.), and expected different stylistic preferences (often unstated). For example, students are taught in most legal writing classes that IRAC can be broken down as CREAC so that lawyers remember to analyze both the rule and the facts (rule Explanation and rule Application). Other classrooms usually put the whole of analysis under the “A” in IRAC. Because “A” means to legal writing students “apply law to facts,” they may assume that under IRAC, the A is just application to facts and does not include “explain and analyze the law.” See also Mark Wojcik, “Add an E to your IRAC,” Student Lawyer, Vol. 35, No. 3 (2006).
  2. Disclose unstated expectations. If you do not talk to your students about IR[E]AC, you may wish to do so to improve the chances that exam answers will better resemble expectations. Do not assume that just because students have received IRAC instruction in other courses that they will successfully anticipate how to apply those skills in your course. That process of transferring IR[E]AC skills from one course to the next is trickier than one might expect; these are higher-order analytical skills and not rote tasks. For those who feel strongly that there is not enough time to review those skills in class, one option is to consider attaching an annotated sample to your syllabus or posting one to your course webpage. See also ILTL Idea of the Month for May 2011: “Setting Expectations for Exam Essay Structure and Strategy.”
  3. Portray IR[E]AC as a flexible, adaptable framework. I sometimes hear professors, judges, practitioners, and others tell impressionable law students that IRAC doesn’t always work in the real world. While it may be true that a poorly executed IRAC analysis doesn’t work, IREAC just identifies the inherent logical sequence of any analysis of the law or how it applies to facts. It’s an empty framework that needs to be filled with a number of sub-sequences. Part of the problem is that the standard IRAC acronym, sans “E,” hides the need for rule analysis, including statutory interpretation. It also doesn’t include a “P” for policy or letters for other nuances in analysis. That “P” is a subpart of both rule explanation and rule application-it still happens inside an IREAC. That is why instructors should expressly state those expectations in assignment instructions and essay exemplars. See Hollee S. Temple, “Using Formulas to Help Students Master the “R” and “A” of IRAC,” Perspectives: Teaching Legal Research and Writing, Vol. 14, No. 3 (Spring 2006) (347 KB PDF).
Practitioners and Real Work Product

Practitioners and Real Work Product

By Emily Grant, Washburn University School of Law

Law schools are increasingly attuned to the need to produce practice-prepared graduates, while at the same time facing limited resources for hiring new faculty and developing new courses. Some faculty members are finding effective methods to reach beyond the walls of the law school to provide additional exposure for students without adding significant costs.

One approach employed by Amy Westbrook, a colleague of mine here at Washburn, is to reach out to practitioners to talk about what they know best – the documents used regularly in their practice. In a series of meetings, various transactional attorneys share with a small group of students their drafting tips and insights by talking through the provisions of a document frequently used in their practice. Typically, these talks are held outside of class time, over the noon hour, with students encouraged to bring a brown bag lunch (it’s cheap!).

Amy intentionally limits the size of the group to eight students. That restriction helps create demand for the sessions (limited signup in advance), and the students value their spot and read the document in advance as required. It also helps with recruiting practitioners to do it, Amy tells me, because a lunch with eight students to walk through a document feels easy and do-able, unlike perhaps preparation for a large group lecture.

The practitioner provides a copy of the document (lease agreement, stock purchase agreement, will, trust, power of attorney, etc.) beforehand so the students can review it and prepare questions in advance of the presentation. During the discussion, the practitioner reviews the various provisions in the document and addresses the overall structure of the document, the key negotiating points, alterative formulations, and other drafting considerations that arise in constructing the final product.

At the end of a semester, then, students end up with a portfolio of sample documents for their “grown-up lawyer” file, as well as an increased understanding of the content and drafting considerations for each. Further, the series serves to connect students with the bar, to give them invaluable exposure to experienced practitioners, and to bridge the divide between the practice and law school.

Review: Tired of Talking: A Call for Clear Strategies for Legal Education Reform

Review: Tired of Talking: A Call for Clear Strategies for Legal Education Reform

By Rory Bahadur, Washburn University School of Law

Sara Rankin, Tired of Talking: A Call for Clear Strategies for Legal Education Reform: Moving Beyond the Discussion of Good Ideas to the Real Transformation of Law Schools, 10 Seattle Journal for Social Justice 11 (2011) [Read fulltext at Seattle Journal for Social Justice website ]

This thought-provoking article suggests that attempts to reform legal education are ineffective because the magnitude of the inertia perpetuating the normative face of the current legal educational model is severely under estimated. Additionally, current proponents of reform have not developed a strategic plan to reform but rather approach reform hoping that substantive support for reform is self-executing.

Initially the author points out that it is myopic to view legal education reform as merely a change in content. Rather legal education reform, like any other reform, should be viewed as a subversion of established power or a revolution, and she states, “no revolution no matter how valid and compelling its basis can succeed without a tactical plan.”

Next she suggests we analyze the reason for failure of the progressive education movement because many of the techniques and instructional theories touted by contemporary legal education reform (or CLEAR as the author calls it) have their genesis in this movement. The author lists nine theories which the progressive education movement and CLEAR have in common, and while a description of each is beyond the scope of this article it is worth mentioning what they are to illustrate the core of CLEAR: experiential learning, active learning, situated learning, differentiation, service learning, transformative education, collaborative learning and interdisciplinary teaching.

In order for CLEAR to avoid a fate similar to previously unsuccessful educational reforms, Rankin suggests that metacognition strategies must be implemented to transform the substantive strategies above into a coherent reform movement. The three most important steps she suggests reformers focus on are: initially, consider whether reform efforts can form the basis of a feasible movement; next determine the language or terminology that best defines the reform; and, finally articulate an action plan to effectuate the reform.

In order to effectively begin the metacognitive process mentioned above, the author suggests CLEAR advocates need to engage in some rigorous self-assessment, which involves answering the following eight questions:

  1. How much do I and my colleagues really understand about current efforts to reform legal education?
  2. What do I/we know about the arguments for reforming legal education?
  3. What are the bases for these argument?
  4. What specific terms of reform have been or should be embraced by my institution?
  5. Do my colleagues and my administration share a common understanding of these terms? If not, what institutional support exists to facilitate a common understanding?
  6. Is my administration committed to providing ongoing training or education to support innovation?
  7. What specific pedagogical and curricular modifications can I/we make to reflect contemporary knowledge about teaching and learning?
  8. How will I/we measure progress in meeting these reform objectives?

The author suggests that one of the impediments to converting the substantive strategies into a coherent and effective movement or revolution is that most CLEAR advocates after reflecting on these questions could not facilitate a substantive discussion about the transformation of legal education. This coherence and understanding of what CLEAR reformers are actually advocating is the first step on the way to an effective movement. Similarly the author cautions, in a way that is all too reluctantly familiar to many proponents of CLEAR,

Reform rhetoric is distinct from substantive discussion about reform. Substantive discussion is based on data, information, and education; it involves collective and sustained effort; it develops commonly understood goals and strategies; it offers meaningful guidance on implementation and practice; and it provides ongoing assessment and support. Ultimately, substantive discussion spurs action.
Of course, substantive discussion is far more difficult than rhetoric. That is why so many of us opt for rhetoric, settling for “the quick fix and … ad hoc, small-scale, piecemeal innovations.” In the context of education reform, this posture is not a compromise; it is a total surrender. If we continue to pay “more lip service than mind service” to the transformation of legal education, we cannot expect real change.

The article concludes by reiterating the magnitude of the task associated with CLEAR and providing a tangible way to achieve the reforms.

We cannot arm ourselves simply by writing more articles or attending more conferences. We must become more metacognitive about the process of reform. We must organize, define concrete terms, articulate clear strategies, develop and implement plans to validate the impact of these strategies, lobby at the highest levels, and continue to build our constituency until we prevail. The transformation of legal education is an epic battle. We must be prepared to fight–or to lose.