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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.

(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.

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.

Review: Law Teaching for the Conceptual Age

Review: Law Teaching for the Conceptual Age

By Jeremiah A. Ho, University of Massachusetts School of Law

Paula Franzese, Law Teaching for the Conceptual Age, 44 Seton Hall Law Review 968 (2014) [Read fulltext at Seton Hall Law Review website (10.9 MB PDF)]

Amidst the continued criticisms lodged against the state of today’s legal education, Professor Paula Franzese’s recent article, “Law Teaching for the Conceptual Age,” agrees with many other similar critiques on the subject that something has to give. Yet, instead of reassessing the business model of law schools or suggesting another re-tool of the law school curriculum toward a more practice-oriented vein, Franzese recommends a solution from a teaching perspective by asking how law teachers can enhance traditional law teaching pedagogy to better engage and serve our students who have generationally shifted toward a life in what she calls “the Conceptual Age.”

The reflection of current law school student demographics is Millennial, and what Franzese suggests is that the Socratic teaching model, which promotes linear, analytical, “left-brain” thinking, needs to become more receptive to teaching conceptual, “right-brain” modes of thinking that are coincidentally in sync with characteristics of the Millennial generation. She makes this suggestion not necessarily with the purpose of pandering to Millennial law students but to demonstrate how it would bring balance to the process of today’s legal problem-solving. As she claims, since the mid to latter 20th century, the “globalization, outsourcing, technological achievement rendering obsolete entire categories of work, and sharp economic downturns are demonstrating the limits of the narrowly linear. In its place, the last two decades have witnessed the ascendance of the inventive, big-picture, ‘high concept’ aptitudes.” What’s missing in traditional law classroom pedagogy are opportunities for our students to learn the practice of law by developing conceptualized thinking about legal situations that ultimately lead them toward finding empathy and meaning in the law–in other words “right-brain thinking.” According to Franzese, “[r]ight-brain thinking involves the non-sequential cognitions that are able to interpret things simultaneously, appreciate context, and put isolated elements together to perceive the bigger picture.” Rather, the Case Method is heavily concentrated in training students to develop analytical skills premised on applying principles and case precedent to relevant facts and being able to spot and categorize legal conclusions from analogous set of facts to the next. “So much of what we do there exalts the deductive, the sequential, the logical, and the linear, all worthy parts of the picture, but not the whole picture,” Franzese writes. But when do we have a chance to ask our students about the conceptual questions within the law and develop the types of skills and intuition that might allow our students to innovate and think outside the box when it comes time for them to problem-solve creatively on a legal matter?

What Franzese proposes is teaching that is neither premised on solely left- or right-brain thinking, but instead on what she calls “whole-mind thinking.” She’s attempting to strike a balance. A good legal thinker ought to be able to think analytically and logically about the law but then be able to conceptualize the law within situations that are affected by social, political, and economic forces. In order to successfully achieve the goals of this whole-mind teaching and learning, Franzese offers some tools for teachers and students to do just that. In a prominent example, she shows how she teaches the landlord/tenant unit in her Property course by setting aside class lecture time to bring in a fictitious couple played by upper-class students and setting them in a hypothetical in which the couple is having trouble with the apartment they have just rented. Students are asked to try to use what they have learned from prior cases and discussion to help problem-solve what they think is a real-life problem. The trick here is that Franzese does not reveal that the couple is merely fictitious and that the whole interaction is part of a simulation until the very end of the exercise. The “realness” of it seems to create a great level of class-engagement and urgency for creative problem-solving, as well as help build empathy in the students for their “clients.” Once Franzese has revealed that the interaction is a simulation, it affords her the opportunity to de-brief with her students the teaching and learning approaches that the exercise poses. Specifically, “[l]etting our students know why we chose a particular teaching tool, why it works and how they can create comparable opportunities to enhance their own learning processes develops their metacognitions, or awareness of their actual process of learning itself.” Students are then more self-aware of how they learn through context and can more directly think about how to think both analytically and creatively about the law in the face of future legal problems.

Another teaching example that Franzese uses to get students to approach the law more “whole-mindedly” is in an exercise she calls “You Be the Teacher,” where “students are asked to assume the professorial role to teach the material, preparing for a part of the class as if they were the professor.” Her specific directive in this exercise is that students “are required in advance of class to think about the essential teaching points and meaning (both textually and sub textually) of the assigned cases, statutes, and problem-sets, and how they relate back to previous class explorations and can help to inform our future scope of coverage.” In running this exercise in her classroom, Franzese has observed that “[s]tudents are charged with thinking about how best to render difficult material both accessible and understandable, how to put the assigned materials into larger context, and how to help the class discern why the topic at hand matters.” In other words, the exercise gets students to develop both analytical skills and also conceptual thinking stills about the subject matter that they are assigned to present. Interestingly, she notes that this exercise’s success is partially premised in how it creates empathy: “A good part of the students’ new found acumen is attributable to their empathic experience of being a law professor.”

Franzese’s article contains many other teaching examples used in other law courses that can be helpful for the instructor who wants to get students to think not just analytically but also capture a significant intuition about the law. Ultimately, she professes that teaching is a moral craft and within the law classroom there is a responsibility to our students to create opportunities that reflect a genuine experience in the law. In the age of outcomes and assessments in legal education, what her article helps answer–at least in part for me–is a question about how to make our teaching relevant for our students so they will embody the values and proficiencies that will make them not just effective practitioners of the law but also empathetic and creative innovators that will push the law forward.

Review: Law School Culture and the Lost Art of Collaboration

Review: Law School Culture and the Lost Art of Collaboration

By Andrea Boyack, Washburn University School of Law

Michael I. Meyerson, Law School Culture and the Lost Art of Collaboration: Why Don’t Law Professors Play Well With Others?, 93 Nebraska Law Review 547 (2015) [Read fulltext at Nebraska Law Review website]

Successful lawyers work together. Collaboration is extremely valuable to clients, firms, and the legal profession. Collaboration enriches the development of legal thought. Collaboration is key to lawyering effectiveness in the real world. And yet, law students receive virtually no training in how to work in a group, nor are they given meaningful opportunities to develop the collaborative skills that are so critical for their development and their practice after graduation.

Legal education fails to prepare students for legal collaborative reality. Perhaps this is because law schools judge and reward students based almost exclusively on individual effort and solitary performance in class and on tests. Although some professors have innovated by creating in-class opportunities for group work, law schools make vastly less use of teams than medical and business schools. Other professional schools place value on building collaborative intelligence, based on the reality that working effectively in a group is essential to professional success. But law schools have not incorporated this reality into their model.

Legal education’s collaboration deficit is not new news. For example, the ABA’s 1992 MacCrate Report noted that “effective collaboration with others” was a critical skill that has not been adequately addressed in law school. Harvard Law Professor Heidi K. Gardner has researched and recently published (in the book, Leadership for Lawyers: Essential Leadership Strategies for Law Firm Success) on the value of collaboration in legal practice. And it is widely recognized that law students graduate without much explicit training in art of teamwork. It is not just the schools that create collaborative deficiencies, however. Law professors themselves are poor collaborative role models. In his recent article in the Nebraska Law Review, Michael Meyerson highlights another source of collaborative deficiencies in legal education, namely, the lack of collaborative pedagogy and scholarship among law professors.

After making the transition to teaching law after nearly 15 years of practice, I immediately noticed – and have ever since struggled with – the sheer loneliness of a law professor’s work. Meyerson concedes that for most law professors “both teaching and scholarship are seen as solitary activities.” But is completely solitary teaching and writing necessary or justifiable? Meyerson’s article posits that such solitude weakens legal pedagogy and impoverishes legal scholarship. And although it is the norm in the law, it is most decidedly not the reality of many non-legal academics. In several non-law academic fields (mathematics, economics, etc.) 80% or more of scholarly articles have more than one author. Even though the number of co-written law review articles has almost doubled in the last decade, still less than 20% of law review articles are co-written. A lower rate of collaboration reflects the legal academic culture that devalues co-written scholarship (for example, co-written articles may receive only token credit towards tenure requirements). Co-teaching within a law faculty is likewise rare, and professors rarely collaborate regarding pedagogy or coordinated course plans. The criticized “law school culture of individualism” therefore starts at the top – with the faculty. And law professors are unlikely to be effective in teaching others to collaborate when they themselves cannot “play well with others.”

Meyerson advocates for a change – not just with respect to teaching students tocollaborate, but also with respect to professors themselves teaching and writing morecollaboratively. Meyerson concedes that this change may be difficult and requires that faculties learn the value of collaboration not only for students, but for professors themselves. But Meyerson explains how valuable collaboration among professors can be. For example, co-authorship can allow for efficient division of labor and can lead to richer, more vetted, and multi-faceted perspectives on and proposed solutions to a legal problem. Meyerson points out that collaboration can create social and psychological benefits as well. Co-authorship can provide motivation and encouragement and create a “sort of synergy where multiple contributors develop ideas that none would have developed on his or her own.” Building bridges between our academic silos can thus lead to a whole that is greater than the proverbial sum of its parts. In addition, working closely with other people can help legal scholars stay grounded and humble. Collaboration is also a way to mentor and give voice to new entrants into the legal academy.

There is a further societal benefit as well: as professors themselves become better collaborators, they can better mentor law students in their pursuit of collaborative intelligence. Collaboration can enrich law school in terms of the quality of and enthusiasm for legal learning. It also better prepares students to practice in the real world. Collaborative learning involves higher-level cognitive and moral reasoning, teaches listening and cooperation skills, and raises cultural and diversity awareness.

Meyerson’s intriguing article is based on his studies of collaborative scholarship and his exhaustive research with respect to the value and absence of collaboration in the law school model. He offers interesting insights with respect to collaboration in other legal fields. The article educates regarding the value of collaboration and includes thoughtful advice on how to incorporate teamwork into the classroom as well as how to incorporate collaboration into our pedagogical and scholarly lives. Importantly, Meyerson also explains that collaboration does not negate individualism. Rather, collaboration can be “a vital part of the process whereby an individual can achieve more of his or her unique potential.”

Review: Beyond Mentoring and Advising: Toward Understanding the Role of Faculty “developers” in Student Success

Review: Beyond Mentoring and Advising: Toward Understanding the Role of Faculty “developers” in Student Success

Submitted by Barbara Lentz
Wake Forest University School of Law

Vicki Baker and Kimberly Griffin, Beyond Mentoring and Advising: Toward Understanding the Role of Faculty “developers” in Student Success, 14:6 About Campus 2 (Jan-Feb 2010) [Read full text at Selected Works site for Griffin]

With ABA standards for outcomes and assessments coupled with demands for practice-ready lawyers, law faculty are needed more than ever to identify and create opportunities for our students to develop critical thinking, skills, and networks to succeed. Authors Baker and Griffin provide a framework for three types of faculty roles: advising, mentoring and developing students. Acknowledging the lack of incentives for engaging in student development when the research agenda is prioritized, the authors provide a vocabulary, clear framework and concise suggestions to encourage faculty to align their time, interests and abilities in choosing the type of interactions most likely to confer greater benefits with fewer frustrations.

The essay begins by reviewing demographic shifts of student enrollment in higher education including increasing diversity, shift to parity or majority female enrollment, rise in first generation students as well as fiscal changes that have led students “to expect a level of service that matches their investment” including lightening fast responses to questions and requests for academic and social support. At the same time, faculty members’ workplaces may be less encouraging of interaction with students by privileging “research productivity over student interaction” in addition to demands for responses from accrediting agencies. Pressures on faculty arise both in and outside the classroom to meet student expectations for faculty contact. The authors urge faculty to be realistic about their strengths, weaknesses and time commitments to foster appropriate relationships for student development and learning.

The three roles for faculty interaction include the advisor, the mentor, and a new role – the developer. The authors distinguish these three roles by the time invested and the outcome desired. First, the traditional faculty advisor helps students navigate rules and degree requirements by providing reliable information so students can make good choices in meeting program milestones. Students should not expect that every academic advisor will also serve as a mentor. Mentoring is more time intensive than advising as it requires a series of ongoing interactions rooted in longer-term care about a student’s personal and professional development. A mentor provides support beyond program requirements by offering honest feedback as a sounding board, helping the mentee connect interests with a career and focusing mostly in the moment. The developer, by contrast, is focused on future outcomes and helps a student set and achieve goals. The developer might ask the student “what experiences do we need to find or create to help you build competencies you will need in order to be successful?” A developer relationship is collaborative in knowledge development and information sharing.

Developer relationships are enduring and do not end once a project or degree program is complete.

No one individual possesses the skills and abilities to be all things to all people. Yet all three relationships are important for achieving student outcomes. The authors assert that students must appreciate the kind of support available from each type of relationship to maximize benefits. If students are better informed about roles, they can be intentional about seeking appropriate expertise by identifying individuals who may best support the student’s short, mid and longer-term development. The authors suggest students reflect on questions provided to diversify their developmental networks while gaining interpersonal and networking skills.

The vocabulary and frame provided by authors Baker and Griffin is valuable in re-conceptualizing faculty roles for student interaction and engagement and provides a toolkit for intentionally choosing the type of role that best meets faculty and student needs, interests and abilities.

Review: White Privilege and the Case-Dialogue Method

Review: White Privilege and the Case-Dialogue Method

Submitted by Rory Bahadur
Washburn University School of Law

Rob Trousdale, White Privilege and the Case-Dialogue Method, 1 William Mitchell Law Raza Journal 29 (2010) [Read fulltext at William Mitchell Law Raza Journal website]

Trousdale’s rather brief piece is thought provoking and controversial and its central thesis is, “the dominant legal pedagogy, the case-dialogue method, perpetuates white privilege through active subordination of minority law students.”

Initially, the case-dialogue method is couched as a Langdellian invention to save law schools from ceasing to exist as academic institutions. Its genesis was necessary because law was not regarded as an academic discipline but rather as a craft in the 19th century. As a result legal education consisted in large part of apprenticeships and the academic institution of the law school was threatened.

According to the author, Langdell, by contrast, considered the study of law a science. He reasoned that there were objective principles which could be discerned that governed legal decision on a broad level. He considered appellate level decisions as authoritative pronouncements of these objective discernable principles. Hence this iteration of law as science facilitated scholarly thought about the law and the validity and necessity of the law school as an academic institution was realized.

By the early 20th century this Langdellian law-as-science viewpoint was the dominant viewpoint in legal education. It remains this way today. There were challenges to Langdell’s viewpoint, most notably by the legal realists in the 1920s. The realists suggested, “legal rules and principles meant little if they were not analyzed within a broader social context.” Langdell’s approach did not consider anything outside of the actual court opinions however.

The author next addresses some of the false presumptions of the case-dialogue method and he begins this section with a wonderful quote from Michael Cooper, “There is a real danger that inculcation into a legal culture – learning the rules of the game – can divert the initiates into a love of legal reasoning for its own sake. Seduced by the search for elegance and coherence and obsessed with technique, they lose sight of the ends and purposes which the law is intended to serve.”

The author identifies the major deficiency of the case-dialogue method as its failure to recognize the law as a human science rather than a natural science. Most scholars have already acknowledged that the law is sociological or “a construction of society’s cultural values.” Yet the case method perpetuates the notion that the cases contain valid and objective normative principles.

Summarily, the author suggests that these principles perpetuate white privilege because Langdell assumed the objectivity and existence of these principles “at a time, when nearly all lawmakers, legal educators, and law students were white.” Furthermore, the author explains, “far from interrogating [the white privilege-based assumptions in the law] the case method reaffirmed them and the law was analyzed form the perspective of the absolute validity of these principles announced in court decisions.”

The author then quotes Kimberle Creshaw as follows:

While it seems relatively straightforward that objects, issues, and other phenomena are interpreted from the vantage point of the observer, many law classes are conducted as though it is possible to create, weigh, and evaluate rules and arguments in ways that neither reflect nor privilege any particular perspective or world view. Thus, law school discourse proceeds with the expectation that students will learn to perform the standard mode of legal reasoning and embrace its presumption of perspectivelessness.

This unfortunately leaves minority students in the unenviable position of suppressing their different perspective so the law can be discussed objectively or “accepting and asserting their identity and risking being ostracized for failure to think like a lawyer.” Ultimately then, the objective rules and principles we seek to discern from cases scientifically and objectively via the case method affirm the normativity of white privilege even if this is as unconscious affirmation.

The author concludes by suggesting a different conceptualization of the purpose and structure of law teaching and to do so he quotes John Calmore as follows:

Our primary goal [should be] to enable students to read law critically with a special sensitivity to the ways in which legal techniques, rhetorical strategies, and legal practices reproduce patterns of power and privilege that work to subordinate people based on categories of identity. The materials [should be] designed to reveal these strategies through close readings of the language and underlying assumptions in judicial opinions. Students [should be] encouraged to examine legal opinions for their similarities and differences in approaches to power and privilege across identity categories and to compare them with insights garnered from the wide range of multidisciplinary scholarly excerpts surrounding the case texts.

Review: Casebooks and the Future of Contracts Pedagogy

Review: Casebooks and the Future of Contracts Pedagogy

Submitted by Andrea Boyack
Washburn University School of Law

Carol L. Chomsky, Casebooks and the Future of Contracts Pedagogy, 66 Hastings Law Journal 879 (2015) [Read fulltext at Hastings Law Journal website (151 KB PDF)]

In spite of the calls to enhance our courses by incorporating skills-building role-plays, collaborative small group exercises, and ripped-from-the-headlines real-life illustrations, the core of nearly every law school course remains the casebook. Casebooks drive course content and design more than anything else (possibly even more than the professor), and similarly are hugely relevant to student outcomes from and experience in class. Legal education has and continues to evolve; casebook content and design must therefore evolve as well.

Professor Carol Chomsky has added much value to the open question of how to best evolve teaching materials in her recent article, “Casebooks and the Future of Contracts Pedagogy.” In this thought-provoking piece, Professor Chomsky discusses six developments and concerns that are driving change in law school casebooks, and she suggests ways that casebook and course designers can steer the evolution of their course materials to meet evolving student and systemic needs. Although she groups the forces of change into six categories, these can largely collapse into two larger overarching evolutionary drivers: (1) A growing emphasis on teaching to practice, and (2) the need to give students what works, while keeping in mind student preferences. Chomsky frames her discussion of casebook evolution in the context of Contracts, speaking specifically from her own experience with the Knapp, Crystal, and Prince casebook and from developing her own Contracts casebook materials, but her suggestions are easily transferable to other disciplines.

Chomsky advocates that course content should be driven with an eye to the doctrine and skills that are needed for practice rather than merely based on historic or traditional content for a given course. In Contracts, for example, Chomsky points out that most casebooks spend a large amount of time and space focusing on issues related to formation and capacity. In practice, however, contract disputes almost never center on these issues. Transactional lawyers and litigators in breach of contract disputes focus mainly on issues of contract interpretation. It is difficult to emphasize interpretation through legal rules alone, however, because interpretation cases are very fact-specific, involving factual rather than legal determinations. Chomsky also points out that for an increasing number of real-life contracts (particularly consumer contracts), the sole legal issue ends up being the enforceability of a mandatory arbitration clause, because disputes arising thereunder may not even be judicially determinable.

In addition to emphasizing the most relevant and foundational legal doctrines in any course, Chomsky explains that a modern law course and a casebook must deliberately incorporate lawyering skills. This includes but is not limited to legal analysis. In Contracts, law students should learn not only to analyze a case or a hypothetical scenario, but to read and interpret contracts, to plan and draft the content of contracts, and to negotiate regarding contract formation and performance. These sorts of experiential components of contract law education are in line with new ABA accreditation standards and will help teach students what they need to know and want to learn. Furthermore, such lawyering skills may eventually (and rightfully?) be tested on the bar exam. Some of the key competencies that Chomsky (and the ABA) identified for a first year Contracts course include those interviewing, counseling, negotiation, fact development and analysis, document drafting, conflict resolution, collaboration, cultural competency, and self-evaluation. Casebooks should provide materials to teach these skills in addition to including the more traditional cases and notes that teach legal doctrine.

Casebooks also must evolve to reflect today’s best pedagogical practices. Chomsky details twelve “things we know about learning theory and practice” that could make teaching materials and course design more effective. In brief, learning outcomes are optimized when:

  1. Learning is active and effortful;
  2. New facts and concepts are connected to what is already known;
  3. Students can identify gaps in their knowledge;
  4. Students are repeatedly tested (“Testing helps students learn because it interrupts forgetting.”);
  5. Multiple topics are linked together (“interwoven”);
  6. Learning is connected with how the knowledge will later be used;
  7. Students are able to self-reflect and self-assess;
  8. Problem solving is attempted before solutions are given;
  9. Visual and verbal learning channels are accessed together;
  10. Students are taught the skill of reading;
  11. Students are led through the increasingly complex stages of learning (from accessible knowledge, to comprehension, to the ability to apply, analyze, synthesize, and evaluate);
  12. Students understand these pedagogical principals so that they can become effective learners.

Chomsky explains that these pedagogical principles should deliberately inform casebooks, and that casebooks should be designed to allow easy application of these principles. Furthermore, teaching manuals would do well to inform and advise professors with respect to the efficacy and methodology of these approaches, including implementation ideas and exercises.

Finally, Chomsky predicts that casebooks can – and should – evolve in response to student needs (“What will sell”). From an admittedly unscientific survey Chomsky conducted among her University of Minnesota Law School students, she came up with a list of eleven things that students would like to see in their casebooks, and, presumably, their law school courses. These student suggestions include things like more clarity in the presentation of legal rules (rather than burying legal rules in “opaque materials”), problems that they can use to test their understanding, better road-mapping with respect to a broad area of the law and how a given unit of study fits into that big picture, better connection of the law to the world around them and their future practice, and material that is better humanized with pictures and stories behind cases. Interestingly, students in Chomsky’s study also indicated that they prefer to have all casebook content be included in a hard-copy volume, and expressed comparative reluctance to use and access online textbooks, weblinks, and the like. Chomsky wonders if this reluctance to use digital learning tools stems from the fact that the current generation of law students learned from actual books, even though they learned to take notes on a laptop. If so, Chomsky wonders if this will change as future generations learn more from a screen rather than a page. (I for one certainly hope not because, in my completely unscientific opinion, people read and retain information better from a printed page.)

Casebooks, course design, and law school pedagogy are all evolving, and at a remarkably quick rate. Authors and professors who use casebooks would therefore do well to thoughtfully consider Chomsky’s suggestions when it comes to crafting casebooks and course design as well as selecting course materials.

Review: Challenging Carnegie

Review: Challenging Carnegie

Submitted by Rory Bahadur
Washburn University School of Law

Kristin Holmquist, Challenging Carnegie, 61 Journal of Legal Education 353 (2012) [Read fulltext at Journal of Legal Education website]

In her article “Challenging Carnegie,” Kristen Holmquist challenges some of the findings and prescriptions of the Carnegie Report on Legal Education. In the article she challenges the Carnegie “conclusion that law school successfully teaches students to think like lawyers.” According to Holmquist, Carnegie defines thinking like a lawyer as an acontextual “non-value based doctrinal analysis.” In reality the distinction between thinking like a lawyer and doing like a lawyer is an artificial one which Carnegie fails to recognize.

What Carnegie fails to acknowledge fully is that the shortcomings of law school involve more than insufficient training but really involve a larger more systemic problem. According to Holmquist,

law school may fall short in an even more fundamental way. Our pedagogy and curriculum–an over-reliance on neatly edited cases to the exclusion of working with messy, human facts, in ways that real lawyers might–obscures the inter-dependence of knowing and doing that is at the heart of thinking like a lawyer. It obscures the context and content that lawyers work within while, together with their clients, solving problems. Students’ lack of applied learning opportunities may deny them the ability to write a fantastic brief. But the narrow focus on case-method learning may also deny students the opportunity to engage in sophisticated higher-order thinking about law and policy, problems, and goals, and about potential paths, obstructions, and solutions.

Holmquist proposes three solutions in her article. The first is to increase the “factual, empirical and normative content” of legal education beyond the neat, sterile confines of appellate cases. Second, she proposes that law school should involve exposing students to the “cognitive processes that inform the persuasion and decision-making central to lawyering.” Finally she suggests that we develop strategies to expose students to cases, “from the ground up.” By this she means expose students to the complex and difficult work involved in developing a case and the facts of the case, rather than students reading appellate opinions where the factual universe has already been refined by an important and arduous process which law students are typically not exposed to.

The remainder of the article actually provides examples of how we can achieve the previously stated pedagogical goals. One would be to view the law through other academic disciplines and to create context for legal decision making. For example, she suggests that, “[l]egal arguments about corporate boards . . . cannot help but sound different when the students have a sense of how board members behave and whether they are likely to provide rigorous oversight.” Another suggestion for teaching students to really think like lawyers is to have them practice making decisions with incomplete or imperfect information much as lawyers do when they are considering settlement proposals. Related to this is the sometimes cognitive bias lawyers unconsciously exhibit to influence their client one way or another when the lawyer is really seeking only to advise the client. Finally she suggests an expansion of the clinical model beyond the confines of clinics. For example more time might be spent in classes trying to construct case files complete with client interviews, depositions, etc. and then use the appellate cases as authority to solve the problem before them rather than the only thing they consider in learning how to think like a lawyer.

This article is a must read. It provides a deep and thoughtful critique of traditional legal education and the most recent suggestions and solutions found in the Carnegie report. The recommendations for pedagogical reform are also well supported. If you are serious about tailoring your teaching to produce effective lawyers this article provides you with concrete tools for doing so.

Review: Changing Gears to Meet the “New Normal” in Legal Education

Review: Changing Gears to Meet the “New Normal” in Legal Education

Submitted by Jeremiah Ho
Massachusetts School of Law – Darmouth

Courtney G. Lee, Changing Gears to Meet the “New Normal” in Legal Education, 53 Duquesne Law Review 39 (2015) [Read fulltext at Duquesne Law Review website (635 KB PDF)]

I have never read an article about legal education that begins with such a vivid analogy between law schools and professional car racing. This is how Professor Courtney Lee begins her recent work, “Changing Gears to Meet the ‘New Normal’ in Legal Education.” The point of her analogy is to signal that in this time of “crisis” in legal education, law faculty members and administrators must, like race car drivers, “be aware of variations in the track—a hairpin curve, a shift in elevation—and change gears and speed to suit the conditions before losing control and skidding into the barriers, or worse.” In other words, we cannot stay stagnant in the face of change without risking catastrophe. It is time to change gears to meet the needs of this new normal.

Before Lee prescribes any solutions, she makes a very smart and precise diagnosis that specifically tracks what many law teachers have noticed with the current generation of students-they often come to our classrooms with a decline in critical thinking, writing, and reading skills as compared with previous generations of students. In the last few years, there have been several different uses of the “new normal” in legal education by different stakeholders in education and industry; the term, “new normal,” can refer to lower applications, lower enrollments, fewer big-firm jobs, or any of a number of other changes in law schools and in the profession in the last five years. Lee’s version of the “new normal” focuses on the change in skills levels of our current students. We are at a place where there is a gap between the faculty expectations and the realities of the critical thinking skills that entering law students bring to the law school setting. The cause of this reality is both economic and political—economic, from the standpoint of law schools, who often operate on tuition-driven business models and have made choices in the Great Recession to sustain entering class sizes but sacrifice applicant quality; and political because the applicant pools have been generally affected by aspects of No Child Left Behind and Common Core policies that emphasize high stakes testing over critical thinking instruction. At the pre-law, college-level stage, Lee observes that current undergraduates arrive lacking such preparedness for critical thinking and analysis, which forces colleges to have to play catch-up when the first two-years of college is the time when most gains in general skills occur. Yet then undergraduates go through programs that lack rigor, on the one hand, and also reward lackluster work with high grades, on the other.

Is this not going to naturally create qualitative back-ups in graduate programs and professional schools? Lee’s study here seems to indicate that it does and it has—particularly for law school programs and lawyer competency, where critical reasoning and writing play prominent roles in both instruction and practice. Her solutions are broad, but reflect a shifting of the gears that have been locked for law schools for decades. Her suggested “new normative” for the new normal entails a top-down approach beginning with fostering a culture of innovation that includes changing the financial structures of law schools, planning and implementing curricular reforms, and assessing our teaching and also the progress of our students more frequently. On the finance angle, Lee recommends that there has to be serious reconsideration between the value of law schools and the cost of tuition and how law schools must communicate value to the applicant pools. Her changes in curriculum would envision reforms on the structural level that include experiential learning opportunities and shortening the period for earning a J.D.—all with an eye toward establishing stronger connection between value and instruction. Lastly, in addition to more regular assessments of teaching, her calls for assessment reforms for students de-emphasizes the customary high-stakes assessment that occur at the end of the law semester with more holistic and frequent reflections of competency that also build student well-being and autonomy. In sum, this article is a must-read for anyone interested in both understanding and changing the course of law schools to deal with the new normal.

Review: Teaching the Digital Caveman: Rethinking the Use of Classroom Technology in Law School

Review: Teaching the Digital Caveman: Rethinking the Use of Classroom Technology in Law School

Submitted by Gerry Hess
Gonzaga University School of Law

James B. Levy, Teaching the Digital Caveman: Rethinking the Use of Classroom Technology in Law School, 19 Chapman Law Review ___ (forthcoming 2015) [Read fulltext at SSRN (579 KB PDF)]

In this engaging, clever, and thoughtful article, Professor James Levy demolishes the myths and conventional wisdom on how best to teach “digital natives” in legal education. It is a must read for any law teacher with an open mind who wants to make informed decisions about how to use (and not use) technology to help law students learn critical thinking and problem solving skills.

The term “digital native” was coined by an educational consultant in 2001 to describe a generation of students who have never lived in a world without computers. Educators at all levels, including law professors, make a series of assumptions about how “digital natives” learn, and consequently, how we should teach them. Those assumptions include:

  • Constant exposure to digital technologies has changed the way “digital natives” think and learn;
  • “Digital natives” are primarily visual learners – more so than previous generations of students;
  • “Digital natives” are tech-savvy and adept at multi-tasking; and
  • Most “digital natives” learn best through screen-based technologies.

Through careful analysis of cognitive science and empirical research on learning, Professor Levy reveals the flaws in these assumptions. First, the research shows that vision is the brain’s most dominant sense for most people and that “digital natives” are no more visually oriented than anyone else. Second, empirical research fails to confirm the assumption that a person with a “visual learning style” will learn best if the teacher uses visual modalities. Third, cognitive science and empirical research confirm that “effective multi-tasking” is an oxymoron. Multi-taskers, including “digital natives,” do a poor job of focusing on relevant concepts, ignoring irrelevant information, and efficiently performing any of the tasks.

Well then, what’s a conscientious law teacher to do? Professor Levy asks us to view the question of technology in legal education through the lens of cognitive science and empirical research on learning, rather than stereotypes about “digital natives.”

For example, Professor Levy offers the following approach to the questions of whether and how to use digital visual technology in the classroom, such as pictures and slides. The starting point is to identify the learning objectives we want our students to achieve and then to ask whether digital technology will help our students learn better than other methods. If the learning goals focus on critical thinking, will a visual presentation effectively communicate the complexity and nuance of the concepts and skills? Will a visual modality promote effortful engagement, necessary for critical thinking and effective problem solving? If the answers to those questions are “yes,” maximize the effectiveness of the visuals by making them concise, memorable, and meaningful. Minimize distractions, such as the bells and whistles available in most presentation software.

What policies, if any, should you adopt regarding student use of electronic devices in class? Should reading material be primarily print-based or digital? Should you recommend that students take notes by hand rather than on a computer? Should your course include both face-to-face and online components?

Read the article. Professor Levy addresses each of these questions. Based on cognitive science and data. Not based on assumptions and stereotypes.

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