Saturday, May 5, 2012
According to a the Yale Law Women's exhaustive report on gender dynamics at the law school:
Women at Yale aren't speaking up in class, nor are they interacting with faculty members, as often as male students. In other words, boys rule—and that phenomenon could presage the gender disparity that will follow later in their careers
The dynamics may vary from school to school. At my institution, the women seem to be as active participants as the men. Here’s the article from The Careerist.
Friday, May 4, 2012
Sullivan and Daniels have posted a discussion of the ETL Consortium Schools here. They state: " This first analysis provides a benchmark against which ETL will be able to track further curricular evolution among its member schools. However, a key principle enunciated in Educating Lawyers is the value of integrating or linking doctrinal instruction with experiential learning and the formation of professional identity." They conclude: "Overall, then, it is clear that the consortium is made up of schools that are more engaged in curricular innovation, across many aspects of curriculum, than the typical law school."
A couple days ago we let you know about a new database created by the good folks over at the Law School Transparency project that helps prospective students estimate the cost of a J.D. including local living expenses. Today, Karen Sloan of the National Law journal has a follow-up piece in which she tells us that because of reporting errors by many law schools, LST's database was low-balling the true cost of a law degree.
The news just keeps getting worse — at least as far as financing a legal education goes.
Law School Transparency has recalculated its estimates of the debt that law students stand to incur after discovering that a number of schools had low-balled the cost-of-living figures that they provided to U.S. News & World Report. On average, schools underreported those expenses — upon which the organization pegged its initial estimates — by $5,000, according to the Law School Transparency's executive director, Kyle McEntee.
Additionally, the organization made several mistakes in its handling of the U.S. News data, which contributed to the problems, he said.
Recalculating using the cost-of-living figures the schools posted on their Web sites pushed the debt estimates even higher. For the class of 2015 — that is, students who will enroll next fall — the new figure is $210,796 (compared to the initial estimate of $195,265). For the class of 2016, the new figure is $216,406 (compared to 200,595).
Those projections assume students rely on federal loans to pay the full cost of tuition and living expenses, and that students attending public institutions pay the higher, non-resident tuition rates. The estimates account for interest, tuition increases and inflation.
You can keep reading here.
The Society of American Law Teachers has released its 2012 survey of salaries for law professors on the tenure track:
After a one-year hiatus to review and reformat the SALT salary survey, we are delighted to publish this survey of 2011-12 academic year law faculty salaries. The survey, conducted by Eric Janus, President and Dean of the William Mitchell College of Law, reports the median base salaries for three faculty ranks – assistant professor, pre-tenure associate professor, and tenured professor (both associate and full) – and median summer stipends in alphabetical order by school, in seven regions. SALT received information from 66 (33%) of the 200 surveyed schools in the U.S. and Puerto Rico. 134 schools (67%) either refused to participate or failed to respond.
Here is the link.
The Sunlight Foundation has released Scout (beta), a free service to track legislation.
The content available to search includes federal bills, Congressional speeches, state bills, and federal regulations. Researchers can set up email alerts to track bills and regulations.
Give it a try – it’s free!
HT LawLibraryofCongress (@LawLibCongress)
Thursday, May 3, 2012
New law school teaching scholarship: "Why Don’t They Get It? Academic Intelligence and the Under-Prepared Student as ‘Other’"
This article is by Professors David Nadvorney and Debbie Zalesne (both of CUNY) and is available here via SSRN and at 61 J. Legal Ed. 264 (2011). It is also the basis of a forthcoming book on academic support to be published this fall by Carolina Academic Press. From the article abstract:
Law teachers today face classes filled with students from a multitude of backgrounds with profoundly different learning styles, levels of academic preparation and readiness. The more traditional model of intelligence posits four or five learning styles that classify students in their primary learning mode, such as visual, kinesthetic and experiential. Gardner’s more recent notion of multiple “intelligences” more profoundly expands on learning styles by linking them with actual ability to learn and perform in a specific context. We propose an additional “intelligence” of sorts – “academic intelligence.” This intelligence refers broadly to a student’s actual level of “academic preparation,” i.e., a student’s readiness or ability to engage productively with an academic environment and to benefit from that interaction. We believe a student’s academic intelligence is about more than simply cognitive skills; it’s akin to culture, including not only cognitive, but also affective and social skills, all of which contribute to an entering student’s success in law school.
Our observation after years of teaching is that some students enter law school with a part of their “academic intelligence” missing or under-developed and these students are unsuccessful despite hard work and teacher’s best efforts. Teachers’ frustration with students’ inability to “get it" transforms these students into the “Other,” and therefore unknowable and unreachable on an academic level. This Essay concludes that “otherness” is not immutable, but rather is amenable to various teaching methods laid out in this essay. This Essay begins by emphasizing the teacher’s responsibility to bridge the gap between students’ readiness and the course objectives. Next, it highlights the failure of traditional law school pedagogy to reach the under-prepared student. To conclude, we suggest a framework for addressing the cognitive component of academic intelligence, which emphasizes the importance of teaching academic and legal reasoning skills explicitly. We discuss in detail, as examples, teaching the academic skill of case briefing and the legal reasoning skill of issue spotting in a core first-year course.
Here is the finding of the Disciplinary Board of the Supreme Court of Pennsylvania:
The Board did a statistical study of Rule violations vs. the number of years the attorneys were in practice and found, surprisingly, that it is not newly admitted, younger attorneys who are engaging in the most common Rule violations, but attorneys who have more than 20 years of practice.
This post from Above the Law offers some useful tips (and ten rules) about writing articles to develop legal business. I think that students need to understand the importance of writing for bar journals/newsletters or for their own website/blog in addition to the more traditional forms of writing they do in law school. This post is a good starting point for this discussion.
The ten rules for writing articles to generate business include some of the following:
Write about a substantive issue, not a procedural one.
Write about a niche area of the law.
Write an article that is intelligent and well-written. (I would add well-researched here)
Write an article that is relevant to in-house lawyers or business people.
Publish the article in an appropriate journal.
After you’ve written the article, distribute it widely.
Use the article to generate speaking engagements (such as CLE programs).
Wednesday, May 2, 2012
"Give a man a fish and you feed him for a day. Teach a man to fish and you feed him for a lifetime." One of the goals of modern education is to develop self-regulated learners--learners who can teach themselves.
Self-regulated learners are engaged learners. "They are more alert, more intellectually active, less willing to be satisfied with superficially attractive answers, more skeptical about their intuitions." (Daniel Kahneman) They are inquisitive, open to new ideas, and take risks. They do not settle for the first answer, but always consider alternatives. Most importantly, self-regulated learners can learn on their own, and they develop the habits of reflecting on what they have learned and criticizing the ideas of others and their own ideas.
Self-regulated learning involves three recursive stages: forethought, performance, and reflection. In other words, they think about doing the task, perform the task, and reflect on what they have done. Reflection is the most important part of being a self-regulated learner--reflection on what you have learned and how you have learned it (the learning process).
The best article I know of on self-regulated learning by law students is Michael Hunter Schwartz, Teaching Law Students to be Self-Regulated Learners, 2003 Mich. St. DCL L. Rev. 447. Also available here. This is a seminal article in the legal education reform movement.
Versus . . . .
For those interested, the study referenced in the first article, Contrasting st ate-of-the-art automated scoring of essays: analysis, can be accessed here.
Here's a story from the Harvard Business Review offering advice about how to avoid legal bill sticker shock. Worthwhile insight from the client's perspective.
Find good attorneys who have voluntarily branched out on their own. Specifically, look for a seasoned attorney with a background at a big firm — someone who has the experience to handle complex cases requiring multiple specialties but who got fed up with the big-law-firm rat race. These attorneys often have rates up to 50% lower than what large firms were charging for their services. Their customer service is usually a lot better, too.
Many independent attorneys have great networks of specialists who have also gone independent, so you don't have to give up the scope of expertise you assume you'll get at a big firm. And the clock won't be running for your introductory call with a specialist, unlike at a large firm where the clock is running for everything. You'll also reduce billing for background conferring — you know, those bills you get that have names of three other attorneys on them who you've never heard of and never dealt with? — that can happen at a large firm without your knowing about it.
Ask for estimates in advance. Need a new client agreement drafted? Ask what that's going to cost. A private placement memorandum? Ask again. You don't have to treat a relationship with an attorney like a relationship with the salesperson at Tiffany's, where you're embarrassed to ask what something's going to cost. It's not a sign of inferiority or lower economic class to be clear about what you're spending. It's responsible business practice. If billings go substantially over the estimate, you'll have a solid basis for negotiating. And you don't have to worry about damaging your relationship with your attorney if you question the bill. If it's way over the estimate, your attorney will be expecting your call.
Ask your attorney to check in at $1,000 increments. Frequent check-ins ensure that you control the spicket and keep you on top of what you're spending so that you never get surprised. By asking your attorney check in at specific billing intervals, you make sure that he or she discusses and gets your approval for expanded scopes of work you might not have known about — often research, which can eat up gobs of time.
Don't let months go by without receiving an invoice. You should get one each month, even if you've agreed to pricing on a project rather than hourly basis. Some attorneys procrastinate on invoicing--don't let them. When four months of billings hit you all at once, it can be a really unpleasant surprise.
Have a tracking system. Be clear about the amount of time you've authorized the attorney to spend on your case. Keep a phone log detailing when calls took place, how long they lasted, and what topics were covered.
Make sure your agreement with your attorney contemplates the specifics. My former company, Pallotta TeamWorks, had the briefest of agreements with a firm handling litigation for us on a contingency basis. It had a clause that said the firm was entitled to a percentage (let's say 25%) of "all economic benefit" they produced. That meant that the larger (and more ludicrous and therefore easier to defeat) a claim was against us, the more money they'd be entitled to. Say someone sued us for $10 billion for tripping over the carpet and the judge laughed them out of court. The law firm would be entitled to $2.5 billion, because their definition of "economic benefit" included any money they saved us. That clause caused a lot of unnecessary tension between us and the firm. Many lawyers are like barbers with bad haircuts: Their own business agreements aren't as good as those they draft for clients. Make sure that they are.
Consultant Marcia Pennington Shannon offers advice for developing your career—a good topic to discuss with our students. Here is a summary:
- First identify your long-term career goals. Do you want to be doing the same work in three to five years as you are doing now? Make your goals SMART: Specific, Measurable, Attainable, Relevant and Time-bound
- Next, identify short-term goals. Focus on two to four goals you would like to accomplish over the next 12 months to help you achieve your long-term goal.
- Action steps. Once you have identified your short-term goals, create action steps, along with “start by” and due dates.
As for next steps, “consider what assistance you may need along the way. Are there individuals who can be good sources of information or mentors for you? Are there resources you need?”
This post from Pressconnects.com discusses the new requirement for pro bono work for New York bar exam takers.
New York will become the first state in the nation to require pro-bono service as part of admission to the bar, Chief Judge Jonathan Lippman announced Tuesday.
Each applicant for the bar will need to volunteer 50 hours of law service, with the aim of helping poor New Yorkers who can't afford legal counsel. The program will start for those applying in 2013….'"Before you can call yourself a lawyer in New York, you must demonstrate in a very tangible way your commitment to the ideals of our great profession."
What do you think? Is this a good way to encourage pro bono service?
Hat tip James G. Milles (@jgmilles)
Tuesday, May 1, 2012
Law School Transparency Project creates database to answer question: "Will I get a job as a lawyer?"
The database can be accessed here. Click on the "select a school" tab in the middle of the page and you'll get a variety of data on rates of employment for 2008, 2009 and 2010 (the figures for last year aren't available yet). You'll also get an estimate for the total debt upon graduation for those paying full-freight who expect to enroll in the fall. Karen Sloan at the National Law Journal has done a nice job summarizing the features of the new database.
The database relies on information the law schools have reported to the American Bar Association, U.S. News & World Report, the National Association for Law Placement and on their own Web sites about their classes of 2010, the most recent year for which information is available.
. . . .
For each ABA-accredited law school, the database includes key employment statistics; charts that break down the percentage of graduates in lawyer and non-lawyer jobs; graphs that detail whether jobs were long-term or short-term; maps showing the states in which the largest percentage of graduates found jobs; salary breakdowns; and the jobs reports that schools submitted to the ABA and NALP.
Law School Transparency has calculated an "employment score" for each school, accounting for all graduates in jobs that require a J.D. but subtracting those in solo practices and those in short-term jobs.
The database is designed to answer what prospective law students want to know, McEntee said. "It really comes down to the question, 'Am I going to be a practicing lawyer?' Our employment score really gets to that."
Yesterday, I summarized Changing the Modal Law School: Rethinking U.S. Legal Education in (Most) Schools, 116 Penn. St. L. Rev. 1119 (2012) by Nancy B. Rapoport. Today, I would like to offer some commentary on this important article on legal education.
I think that Dean Rapoport is correct that there are three types of law schools: the elite law schools, the modal law schools (the majority of law schools in the middle), and a few precarious law schools, which are having problems turning out students who can pass the bar and obtain employment. The importance of this observation is that we should not be having law schools that are all the same (like Yale), but rather have at least three different approaches to legal education, which are structured around the type of law students each type of law school generally attracts. While Rapoport rightly emphasizes the preparedness of the students, I would also consider the innate ability of the school’s law students (which Rapoport rejects), the region most of the law students are from, the saturation of law schools in the region, and the kind of law most students at that law school want to practice.
I agree with Rapoport’s comment that U.S. News is part of the problem since it rewards those law schools who are most like Yale. As I mentioned last week here, we need to either eliminate the U.S. News rankings or have dual rankings: one for scholarship programs and one for practice programs. Since I would rank all law schools in both categories, those that excelled in both would be rewarded.
I also agree with Rapoport that elite law schools need the least change. However, they do need to provide their students with some practical skills. Stanford and Washington and Lee have done this, so why can’t other elite law schools?
As Rapoport notes, precarious law schools need the most change. We cannot teach unprepared law students, like we teach students at Yale. It is the precarious law schools that would benefit the most by incorporating skills into doctrinal courses and having more skills courses. These law schools would also benefit by making their teaching more explicit. They should explicitly teach legal skills, such as rule-based reasoning, analogical reasoning, rule synthesis, distinguishing cases, and policy-based reasoning. They should also give their students more background in a doctrinal area before plunging into cases (like the casebooks in the Context and Practice series from Carolina Academic Press do). Students at these law schools need much more individual attention than those at Yale or Harvard. Every first-year student at a precarious law school should have an faculty mentor, who meets with each student several times a semester. Having required courses before matriculation is also a good idea.
The picture at modal law schools should look different than Yale, too. These students are going into practice, not politics or teaching, so they should be prepared for practice. They also need more explicit teaching and immersion in skills courses. Teaching students problem solving is vitally important.
As Rapoport mentions, we need to reward those teachers who are willing to take on the load of teaching skills. While furthering knowledge is important, students come to modal law schools to learn to be lawyers, not scholars. Those who do the job of preparing them should have the same status and pay as traditional law teachers.
As Rapoport mentions, teaching ethics and professionalism in first-year courses should be a significant portion of a law school’s mission. As I have said before, students will learn ethics better if they learn it in connection with the related substantive law (contracts’s ethics in contracts class).
Finally, as my co-blogger, Jim Levy, has mentioned several times (for example, here), law schools can distinguish themselves by doing things differently. Doing things differently could also help them avoid going out of business, as several commentators have warned (for example, here).
This is a good move. It'll be interesting to see how many other law schools - outside the very elite which aren't under the same market pressures - follow suit by voluntarily downsizing their own entering classes. Hastings has more flexibility than other law schools because it's a stand-alone institution and thus isn't beholden to a larger university that often relies on the law school to balance its own budget.
Several blogs are carrying the full story including Hastings College cutbacks a response to legal education's 'crisis' via The National Law Journal, The Shrinking Law School via Inside Higher Ed, Hastings to Cut Law School Enrollment by 20 Percent Over Next Three Years via the ABA Journal Blog, and Hastings College of Law ‘Fixes’ Things by Reducing Students via JD Journal.
Thanks to the Institute for Law Teaching for this issue—all 43 pages of it, full of great practical articles. Here’s the table of contents:
Reducing Student Anxiety Through Assessment Transparency .............................2
Four Simple Lessons About the Needs of First-Year Law Students..................................4
Use High-Profile Cases to Illustrate the Federal Rules of Evidence .............................6
Opening Students' Eyes to New Approaches to Seemingly Familiar Problems: Challenging Their Existing Assumptions in Legal Writing Courses................................9
Book Review: Techniques for Teaching Law 2 Blends Best of Old and New........................10
Using Formative Writing Assignments toAssess Student Learning Outcomes Across the Curriculum..................................11
Civilizing Discussion in the Law School Classroom........................................................13
Crossword Puzzle: The Bind That Ties..........14
Keynote Address: LW1 One-Day Workshop for New Law Teachers, Wake ForestLaw School, Dec. 3, 2010...............................16
The First Thing You Need to Tell Students in Clinics...........................................................18
Using Visuals to Enhance Student Learning...........................................................20
Introducing Law Students to Bloom's Taxonomy.........................................................21
Why Skills Ain't Easy: The Deceptive Demeanor and the Truth of Taxonomies..22
Crossword Puzzle Solution..............................23
The Mirror Mirror Exercise: A Quick and Easy Method to Begin Discussing Race, Gender, Ethnicity, Age and Other Differences with Your Students..................................................24
Sales Pass Activity...............................................26
Engaging Millennials: Using Twitter in the Classroom........................................................28
Book Review: A Teacher's Reflection Book by Jean Koh Peters and Mark Weisberg....29
Five Practical Steps to Ensure Your Students Listen-You Can Catch More Flies with Honey!.................................30
Destination Application: Using Hands-On Writing Workshops to Supplement the Legal Research and Writing Course...........32
Teaching Students How to Use Form Contracts...............................................34
Making IRAC Visible.........................................36
ILTL Summer Conference Information and Registration......................................................38
Maybe, according to the National Law Journal.
"Law schools have caught plenty of flak in recent years from critics who charge that they routinely produce graduates who can write a law review article but cannot draft a contract or interview a client. Now the State Bar of California is mulling whether to impose a practical skills training requirement on lawyers applying for admission — a move some legal academics say is unnecessary and could stifle innovation."
"A state bar task force will soon begin examining whether new attorneys must attain a certain level of hands-on training before being admitted to practice in California. The discussion is still in the early stages, but ideas being kicked around include requiring an internship or mentorship program; a set number of skills-training hours; or a year-long course for 3Ls that covers real-world lawyering skills."
"Dunn argued that ensuring that new lawyers can adequately represent their clients falls squarely within the function of the state bar, which has a responsibility to protect consumers of legal services. California bar president Jon Streeter suggested the matter is more important than ever, given that so many recent graduates have been unable to find jobs at law firms and instead have hung out shingles of their own. As solo practitioners, those new attorneys miss out on the mentoring and learning opportunities that law firms provide, he said."
"Even at law firms, clients are beginning to object to underwriting associates' on-the-job training. The changing demands of the legal job market have put a spotlight on practical skills training and prompted many law schools to increase the number of courses that teach students through real-world legal work such as representing clients in clinics, learning negotiation techniques, and drafting contracts and pleadings."
"Not all law school administrators in California would oppose a mandate. Chapman University School of Law Dean Tom Campbell said it wouldn't be a particular burden, since his school is already heading toward a much more skills-intensive curriculum. For example, the faculty is considering pairing traditional classroom courses such as real estate and labor law with courses in which students put that classroom knowledge to use in simulations or real-world projects."
"We're only at the very beginning of the examination of this issue," Streeter said. "Since it came out that we are looking at this, my mail has been running 80 percent enthusiastically in favor of this idea, including from many academics."
Monday, April 30, 2012
Nancy B. Rapoport has written an insightful article on legal education, Changing the Modal Law School: Rethinking U.S. Legal Education in (Most) Schools, 116 Penn. St. L. Rev. 1119 (2012), also available on SSRN.
She opens: "lawyers bemoan the inability of recent law graduates to ‘hit the ground running.’ They’re frustrated by the graduates’ failure to move from drafting competent memos discussing current case law to providing useful advice to clients. They’re also frustrated by the inability of most lawyers to write coherently, make persuasive arguments, and play well with others."
She argues that "discussions of educational reform in U.S. law schools have suffered from a fundamental misconception: that the education provided in all of the American Bar Association-accredited schools is roughly the same." She notes that even the U.S. News rankings do this: " those rankings tend to reward schools that approximate Yale—the top schools that are highly selective in their admissions, with prominent and extremely productive faculties, and numerous career opportunities for their graduates." Rather, she thinks there are three types of law schools: "the elite, the modal [the majority of law schools], and the precarious." "They differ in terms of the composition of their student body and in terms of the opportunities that they offer for their graduates and faculty." She defines "a precarious school as one in which the graduates bear a significant risk that they will fail the bar exam and therefore be unable to support themselves as lawyers."
She is not concerned about students who attend the elite law schools: "Because the elite law schools do not need much ‘reforming,’ the better focus of reform would concentrate on the modal and precarious schools; however, both elite and modal law schools could benefit from some changes to help law students move from understanding the theoretical underpinnings of law to understanding how to translate those underpinnings into practice."
She remarks that "Most law schools provide a good education for their students and a comfortable living for their professors, but they don’t provide the same types of networking opportunities as do the elite schools. . . . if the modal schools are not going to offer better networking opportunities, then they should come up with some reason to justify their tuition rates. . ." One way of justifying tuition rates is better practical training: "Smaller law firms also have lost the opportunity to provide significant learn-by-watching training, and many government jobs throw their new employees into the deep end of the pool on their first day. As a result, if law schools don’t train their students, and employers can’t ‘afford’ to train them, then future lawyers will miss an important developmental stage."
Her main concern is the preparedness of the law students: "I view students who matriculate at the modal law school to have some level of preparedness but to need more coaching in the basics. And I view students who matriculate at precarious law schools as being akin to athletes who may have great potential but who have received little to no training in their sport of choice. Such a student is going to need coaching in all of those skills that he missed along the way."
Speaking of modal law schools, she writes, "But the education at these schools could be much better if the professors were willing to acknowledge that they are teaching students with backgrounds markedly different from their own." She points out: "Very few law schools spend the time to analyze the career paths that most of their graduates take and calibrate the curriculum accordingly in order to provide their students with the best start for their careers. These schools are missing an opportunity to distinguish themselves from the Yales and NYUs; instead, they’re doing their darnedest to mimic them." She asks: "Graduates of most modal law schools won’t find the doors of opportunity pushed open as wide as they are for graduates of elite schools, so why not train them so that they have an edge when they’re competing with the elite-school graduates?"–so they are prepared to hit the ground running and solve their clients problems.
She then discusses the resistance to adopting new approaches to legal education, which results in the "lock-step" model of current legal education. She asserts that "This lockstep model suggests—at least indirectly—that law is an end, rather than a means to an end. For faculty members, perhaps the law is an end in itself. But for the clients of our law school graduates, law is just one tool for lawyers to use to solve their clients’ problems."
Concerning precarious law schools, she avers, "Just as a wholesale revamping of education at the elite law schools is not a pressing need, maintaining traditional educational programs at precarious schools is also a bad use of time and resources." She thinks that "open" admissions is a good policy. However, "the real issue is the disconnect between the promises that these law schools make to their students and their inability to fulfill those promises. At these precarious law schools, too many of their graduates fail the bar exam, giving the lie to the claim that these law schools give their graduates ‘opportunity.’ Opportunity for what? To incur significant debt without a way to pay it back? To read about six-figure starting salaries when the median starting salary for graduates of their own school is dramatically less?"
She asserts, "And when I say ‘change,’ I mean "change dramatically." "[P]recarious schools should figure out a way to provide their students with the preparation that they lack. Maybe they can provide it by starting a semester early, with that first semester devoted to catching up on preparation. Maybe they can do it by requiring prerequisites for matriculation. But they need to do something, or too many of their students will fail the bar and won’t find law jobs." She adds, "Unless the ABA puts teeth in its standards [concerning bar passage rates], precarious law schools have nothing to fear."
She maintains, "With the right changes, schools could move from the precarious cluster to the modal cluster." However, until they do so, "we should stop pretending that these schools are equivalent to the modal schools. We’re talking about apples and anvils here."
She then focuses on the modal law schools: "If we focus on the education that we provide to students enrolled in these modal schools, we could affect a significant number of students. First, though, we must recognize another misconception: that students come to a modal law school with any sort of deep understanding of how to think critically." She then laments the state of undergraduate education: "But we’re also seeing students with much weaker, less expansive educational backgrounds than we saw even fifteen years ago. We’re seeing students who write less ably, who are more gullible about the credibility of references in their research, and who don’t understand the link between what they’re learning in law school and what lawyers do." She remarks: "Instead of our legal writing professors teaching high-level rhetoric and analysis, they have to do a fair amount of remedial training in basic writing skills. That leaves less time for training in the type of analysis and writing that good lawyers must learn. If students can’t write well, they can’t think well. If they can’t think well, they can’t reason well. If they can’t reason well, they can’t solve problems well. And that means that they can’t become good lawyers."
She mentions that one of the problems in the legal academy is the distinction between doctrinal professors and skills professors. "Students can’t become good lawyers without understanding what lawyers do, either. There is a nasty distinction in the legal academy between those who teach substantive (‘podium’) law and those who teach ‘skills’ courses. The podium professors tend to have more prestige, more job security, better salaries, and fewer job responsibilities. The ‘skills’ professors have to evaluate their students more frequently than once a semester, and their subjects convey quite directly what ‘real lawyers’ do. Legal writing is not intuitive: it takes training. So does live-client representation. Although it’s true that one can’t be a lawyer without knowing substantive law, one also can’t be a lawyer without the ability to understand (and deliver, within the bounds of ethics) what a client wants and needs. . . . and ‘skills’ courses come a lot closer to teaching the integration of these other approaches than do ‘podium’ courses. " She declares: "it’s criminal to send the graduates of modal schools out into the world—where they’re more likely to work in smaller firms or as solo practitioners—until we’ve given them the skill sets necessary to avoid malpractice."
Concerning the solution for modal law schools, she asserts, "But we could do much more to teach our students that law is merely one tool in the lawyer’s quiver. Lawyers solve problems—or, if you prefer, lawyers solve conundrums." Students can learn valuable skills in podium classes by being taught that cases are about people and their individual problems and that people have different points of view. She observes, "We could pause and examine a case not just from the point of view of discerning the appropriate law but in terms of what engendered the underlying dispute." Other solutions include teaming up with colleagues from other departments or practicing lawyers and encouraging new types of textbooks that "integrate some real-world materials either as lead-ins to the discussion of cases or as stand-alone methods of teaching a subject."
Another solution for modal law schools include requiring "students to take certain courses to bring them up to speed before matriculating." (She notes that medical schools and business schools already do this). She continues: "The faculties on most modal law schools will push back at the suggestion of prerequisites, arguing that ‘if Yale doesn’t require these courses, why should we?’ But the time for the pretense that all law schools should be (or could be) Yale is long past."
Law schools also need to teach students professionalism: "I’m a big fan of ethics in all podium courses." She points out, "I think that the modal law schools’ failure to teach the transition from knowing the law to using the law is partially responsible for the tendency of some lawyers (even some experienced ones) to use the law inappropriately. Just as some law students will graduate with the mistaken assumption that all arguments are equally "good" and that lawyers should make all arguments (even the silly ones), some lawyers will continue to think that because the law lets their clients do something, they should facilitate their clients’ wishes every single time." She argues, "If we want to train our law students to give good advice, we should also train them to avoid fooling themselves into making their own bad decisions."
She concludes: "Some modal law schools are experimenting, too, but most modal law schools are still afraid to experiment because they’re afraid of differentiating themselves from the elite schools. They’re afraid of losing status. Because modal law schools can’t offer the networking advantages that elite law schools have, they should instead offer an education that relates more specifically to the careers that their graduates are likely to have. . . . But they need to stop chasing the tails of the elite schools. There’s room in legal education for a variety of models, as long as we recognize that every law school should have a curriculum that meets the needs of its own students."
Some commentary tomorrow.
Top performing law students provided tips in the previous post on how to do well on final exams. Now law profs offer their advice on what makes a top final exam answer courtesy of the Wall Street Journal Law Blog:
Of course, none of these responses will, alone, unlock the key to success. And an A exam to one might be a B plus to someone else. But taken collectively, they just might shed some light on what the Great Professoriate is looking for. So here goes.
Heather Gerken, Yale: A good law exam answer is . . . evaluative. Too often, students walk through each answer as if all arguments are created equal. They don’t tell me which arguments are strong and which are weak, which facts matter and which don’t, which cases provide strong support for their claims and which ones are distinguishable. And they throw everything into the answer rather than think hard about what belongs and what doesn’t. Good lawyers don’t just know the substantive law; they also have good legal judgment. The mistake students make is not to exercise their own legal judgment in answering a question.
Richard Friedman, Michigan: A good law exam answer . . . answers the question. Banal as that sounds, many students take the question as an excuse to write a canned answer on some area in which they’ve learned the black-letter law. I tell my students, “Imagine you’re riding down an elevator with a boss who knows the law and who has told you the facts but wants your help in advising the client. Don’t repeat the facts to him. Don’t tell him the law. Apply the law to the facts.”
Eric Chiappinelli, Creighton: A good law exam answer . . . is one that does more than tells me what the law is (more or less well) and applies the law to the facts (more or less well) and then stops. The other 90 anonymous answers will do that. You should do two additional things: Tell me up front what the question really turns on – a choice between two applicable rules? Deciding what a particular word or phrase should mean? Then, at the end, give me your opinion of whether the result is good or fair or just. Cutting to the heart of a question immediately and expressing a value judgment about the result are what separate the A’s from the C’s.
Paul Secunda: Marquette: A good law exam answer . . . gets to maybe. By that I mean that too many law students have an undergraduate mentality and seek to figure out the one “right” answer for the question. The point of the law school exam is not necessarily to test for right and wrong answers, but to see whether the student is utilizing critical reasoning skills to understand all the possible issues that the question presents. The more you arrive at a “maybe” in your law exam, the more likely you are seeing all the sides of the question in your answer and will then receive the most exam points.”
Adam Winkler, UCLA: A good law exam answer . . . is rigorous and deep. By rigorous, I mean it references every applicable standard, test, and burden; analyzes every appropriate “branch” in the decision tree; and follows a sound logical structure. By deep, I mean it argues — not just concludes — how the legal rules apply to the facts; analogizes and distinguishes the most relevant cases; and addresses the best counterarguments. There is no “right” answer. It’s all about the argument.
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