Resistance? No Doubt, but the Timing is Ripe to Make an Attempt: Reforming Legal Research & Writing Instruction Requires Transforming the Status Quo Model of Law School Curriculum and Faculty Governance

Alas, I seriously doubt any such reform will by mandated by the ABA's review of accredition standards since not interfering with the how the legal academy should produce "pratice ready" grads beyond aspirational goals for "outcomes" appears to be the ABA's response to widespead criticism from the bench, bar, and recent grads. Well, what the hell should you expect from the ROFL claims that the ABA Section of Legal Education and Admission to the Bar is "separate and independent of the American Bar Association, as required by the Department of Education’s regulations governing accrediting agencies" while including way too many members of the legal academy with vested interests in maintain the status quo to the maximium extent possible.

Plus there is the equally ROFL claims from some law profs who in a nutshell claim that it is their law school administators' fault, not theirs because the Dean and the University make all the important decisions. Ever attend faculty meetings? I have. It was part of the job requirement. Faculty members routinely chimed in with their opinions on how to run the law school before and after the Dean made his decisions. The tenured faculty were not afraid to express their opposition to proposed administrative actions. (Tenure-track profs, less so). At this law school, it got so bad the senior law faculty did what was necessary to get this dean, who still had about six months left in his first contract, fired.

Do note that not all law profs are so willing to hide behind the shield of blaming their deans and university administrators by claiming a disconnect in responsibility for this state of affairs. OSU law prof Douglas Berman writes

So, even as I grow more aware/attune to the "law school scam" and suffering grads, I still have a hard time viewing law professors as avaricious Ponzi schemers eager to drive students into a lifetime of debt to fund a lavish lifestyle.  Instead, I see a group of well-meaning service-providers (law professors/schools) working earnestly to provide what they consider a valuable non-economic service ("teaching students how to think like a lawyer") to some people who are paying a lot of money (law students) problematically believing they are getting a valuable economic service ("becoming a practicing lawyer").  

To the extent that deceptive placement stats fuel this disconnect between the "law school service" most law professors seek to provide and what some (many? most?) law students actually want and expect, more honest employment data should help considerably.  But if one fears (as I do) that much bigger societal and human psychology forces are in play, more honest employment data is just a first step on a long journey toward a sounder legal education system.

(Emphasis added.) See Berman's Identifying the disconnect at the center of the "law school scam" post for more.

Bottom line: the battle to produce "practice ready" law school grads will be fought law school by law school by law school. The war will only be "certified" as won by the ABA's so-called independent Section of Legal Education and Admission to the Bar after the fact. Certainly, AALL's contributions to this process provide little nudge-generating momentum despite our association's claims that AALL is working closely with the ABA to make changes. Even the The Boulder Statement on Legal Research Education is devoid of the specificity needed, as well-intented as it was.

The only alternative to the law school-specific battlefields is for Congress to get involved by way of hearings that includes but goes well beyond the usual establishment witness list (eg ABA, AALL, etc.). I'm thinking Senator Grassley and Senator Boxer may be sufficiently dissatisfied with responses to their inquires to the ABA. But unless they call Chief Justice Roberts to testify, the matter may not produce the sort of media attention senators like. See, for example, Mark Giangrande's recent post, The ABA's Latest Response To Senator Grassley (I like the idea of holding accreditors of law schools to justifying their standards and actions by someone with enough gravitas to pull it off.  Perhaps that conversation the Section is seeking with Senator Grassley might take the form of a Senate Judiciary Committee hearing at some point. That would be a hoot.}

In Think [And Practice] Like a Lawyer: Legal Research for the New Millennials, [SSRN], Aliza B. Kaplan, Associate Professor of Legal Analysis & Writing, Lewis & Clark Law School, and Kathleen Darvil, Access Services–Reference Librarian and Adjunct Assistant Professor of Law, Brooklyn Law School, write

To properly prepare law school graduates for today’s legal marketplace, research instruction needs to be revamped. Emphasis should be placed on researching within law’s hierarchy, using a broad range of tools, regardless of whether that tool is available online or in print. Cost-effective research strategies should be taught to students, stressing the utility of popular secondary sources and other efficient search strategies and techniques. In order for new attorneys to be competent, competitive, and an asset to their employers, law schools should seek out the advice of practitioners and law firm librarians in the development of the legal research curriculum.

The authors offer several general recommendations on how to reform the legal research curriculum to advance the objective of teaching law students to think and practice like lawyers:

[W]e recommend that legal research instruction should use 1) multimedia technologies, 2) exploratory and collaborative strategies, 3) relevant subject matters, 4) and cost-effective tools. It should be integrated throughout the curriculum and taught by experts, which would convey its importance and assure adequate training. Making some timely and necessary changes to legal research instruction will integrate more practical skills into the law school curriculum and help us better prepare our Millennial students to be skilled practicing lawyers.

Do note that in reviewing criticisms from legal employers about the current state of legal education, one can conclude that in the context of generating practice-ready work product, the case can be made that law schools are not even successful at graduating students who think like lawyers, let alone who are "practice ready" in terms of their research skills training. Could this be because thinking and practicing like a lawyer require more than listening to doctrinal class lectures and more that requiring students to take a separate mandatory 1L LRW? Most of us inside and outside the legal academy know that the answer is and has been "yes" for decades.

The authors write:

Today’s legal research instruction neither trains students for the complexities of practitioner research nor reinforces good research habits and skills. Research instruction is generally mandated only in the first year of law school, which is insufficient to develop the skills necessary for legal practice. It also sends the message that research is not an important skill. Moreover, many legal writing professors who teach research do not have expertise in legal research, which would not be the case with any other specialized subject in most law schools. In order to best prepare our students to practice law, legal research instruction should be integrated throughout the law school curriculum, taught by those with the appropriate level of expertise, and should incorporate the resources and technology used by practitioners.

Sometimes specifics can use as important illustrations. In this case, the authors offer a couple of illustrations about how legal research instruction can be integrated thoughout the law school curriculum. Take for example, reading assignments that move beyound the casebook; for a course like CivPro, the authors suggest assigning reading in Moore's Federal Practice and/or Wright & Miller to expose students to the types of publications they may actually use in the real work. For research paper exercises in doctrinal course, assigning hot tops to exposure students to recent developments titles, like some of BNA's reports, because they will find them to be valuable current awareness services when students are practicing law. The authors also address some commonly used productivity solutions, like LexisNexis CaseMap, that could become a learning-by-using teachable moment students may carry with them into their careers.

The crucial element here is that the recommended curriculum modifications and instructional strategies would require that the traditional model of legal education make room for legal research and writing well beyond 1L LRW and ALR courses. While the authors frame this in the context of Gen-Ys because they are today's law school students, their recommendations are not all that era-sensitive. Similar recommendations have been proposed but ignored by the legal academy. However, in the past, legal employers were willing to hire recent law grads, knowing well, that they would be paying them during the first couple of years for what would amount to be a "post-grad" education. Even BigLaw is pushing back on that now.

While there are many other areas in the law school curriculum that need to be reformed to produce "practice ready" graduates, in the context of integrating legal research and writing skills, the authors offer recommendations that move beyond the "exposure" component. Assuming law profs are willing -- remember the whole "academic freedom" argument in the context of teaching -- the authors recommend that skilled legal writing and research instructors need to be incorporated in the teaching model across the curriculum. I think this would take something more than the assignment of law profs' teaching or research assistants since they don't qualify as being "skilled." Staff already on hand, particularly academic law librarians, would be a logic choice. This does assume that staff are skilled in practitioner research using the tools practitioners use (eg beyond WEXIS) and have sufficient expertise in both the topical resources and the subject matter of the course. The days of academic law librarian-scholars in a particular area, even in foreign and international law, are waning at all but the largest academic law libraries. Understanding of a topic area need not be mean having substantial expertise to be on the same page as the law prof teaching a doctrinal course in, for example, CivPro, but it be something more than an basic understanding of black letter law on the topic.

A critical component of the authors recommendation in this regard, one not explicitly stated but certainly essential, is the replication of what law school students may find the real world "reference interview" and its follow-up, actually helping perform the research side-by-side the attorney or student. Assignments are given, the young associate or in this case the law school student runs to the library for help. It certainly would help in the context of legal education if the team approach suggested by the authors sent the law school students running to a legal research expert who was closely working with the law prof from the day both were crafting the course through completation of the course.

There would be no small amount of additional work load added to academic law librarians. Not only must they have some measure of subject expertise to assist law students based on subject matter legal expertise but also some measure of expertise in using pratitioner-used legal resources. Most law school libraries do not have the depth of subject expertise on staff. But they could. If the authors recommendation for reforming the curriculum by executing instructional strategies to produce law grads who think and practice like lawyers were to be implemented, it would require hiring additional law librarians. (Good thing #1) It would also require that academic law librarians be recognized an integral member of the the teaching faculty, not just nominal members. While legal skills profs, primarily LRW profs teaching 1L courses and clinical profs are striving to gain pecking order recognition to influence the decision-making process at their local law schools, imagine the input academic law librarians could have if they were also voting on curricular matters in faculty meeting (Good thing #2).

And what is "Good thing #3'?  Private (and public) sector law librarians would spend less time teaching practice-not-ready recent law school grads how to conduct real world research and more time assisting them in performing legal research for the issue at hand. A matter like this one extends well beyond academic law librarianship... . [JH]