A Big Christmas Present for Skills Professors?

Merry Christmas and Happy Holidays from the Appellate Advocacy Blog.

The Council of the ABA's Section of Legal Education and Admissions to the Bar may be giving skills faculty at law schools a late Christmas present.  The Council is considering revisions to Standard 405 that would provide more job protections for skills professors. In short, the changes would require law schools to offer skills faculty tenure-like job protections. You can read a memo on the changes here. The Council is accepting comments on the revisions until January 8, 2024. Instructions for submitting comments are in the memo.

Overall, I am pleased with the changes, but as I explain in my comments to the Council, I don't think that the changes go far enough. Having left a tenure-track job for a job with clinical tenure, I have seen firsthand how clinical tenure can promote inequities at law schools. 

I encourage those interested in these issues to review the proposal and consider submitting a comment. My comments are below.

***

Dear Chair McCormack:

I am writing in support of the Council’s proposed revisions to Standard 405. While I do not think that the revisions go far enough, they represent a positive step in the right direction. As I will discuss further below, this step is consistent with other changes to the ABA Standards that recognize the value of legal writing and skills education.

I am writing this letter in my personal capacity. It represents my views and not those of the University of Arizona or the James E. Rogers College of Law. My views have naturally been informed by my decade-plus in legal academia—first as a tenure-track professor at Regent University School of Law and currently as a faculty member with continuing status (clinical tenure) at the University of Arizona James E. Rogers College of Law.

As a professor I have taught both skills and doctrinal courses, including Constitutional Law I & II, Federal Courts, Appellate Advocacy, and the first semester 1L writing course. My comments to the Council are based in part on a book chapter[1] I wrote about how I incorporate skills education into my doctrinal classes.  My comments will cover the importance of skills education, how the revisions are consistent with past Standards changes on legal skills education, and how the revisions don’t go far enough.

The Importance of Skills Education

Legal writing is one of the few skills taught in law school that all attorneys perform. According to a 2011–2012 study of newly licensed attorneys by the National Conference of Bar Examiners, 100% of surveyed attorneys reported that that they engaged in the skill of “written communication.”[2] In fact, of the 98 knowledge domains, 36 skills and abilities, 43 general tasks, and 13 specific practice area tasks that the study asked attorneys to rate as “significant . . . to [their] performance as a newly licensed attorney,” “written communication” had the highest significance rating and was the only item that 100% of attorneys said that they performed.[3]  The other highest rated items, both in significance and percentage performing, all fell into the skills domain. They represent skills taught in legal writing courses—“paying attention to details,” “listening,” “oral communication,” “professionalism,” “using office technologies,” “critical reading and comprehension,” “synthesizing facts and law,” and “legal reasoning.”[4]

Anecdotally, when I talk to judges and other legal employers, they often emphasize that they want to hire graduates with strong research and writing skills. These employers know that they can teach the substance to new hires, but teaching the skills of writing and research are time-consuming and difficult.

Given the importance of legal writing as a skill that law students must learn, it makes sense to offer tenure-like job protections to legal writing faculty. It seems counterproductive to treat educators who teach one of the most important skills students learn in law school as second-class citizens. It sends the wrong message to our students (and other faculty) about the importance of skills education. 

Further, offering more job protections, and the resulting higher salaries, to skills faculty will help law schools recruit and retain better skills professors, which will only improve the quality of legal writing and skills education.

The Revisions are Consistent with Past Changes Recognizing the Importance of Skills Education

Since the early 1980s, the ABA has slowly revised the Standards to recognize the importance of skills education. As I explained in my book chapter (apologies for the long block quote):[5]

In the early 1970s, as part of a major reform to the standards for approving law schools,[6] the ABA required that law schools teach, as part of their core curriculum, “‘the duties and responsibilities of the legal profession’” and “‘professional skills, such as counselling, the drafting of legal documents and materials, and trial and appellate advocacy.’”[7] In 1981, the ABA added the requirement that law schools “offer to all students at least one rigorous writing experience,” in addition to “instruction in professional skills.”[8]

Eight years later, the ABA Council of the Section of Legal Education and Admissions to the Bar created a task force to study the “gap” between law schools and the legal profession.[9] Part of the task force’s work included examining what “skills” and “values” attorneys needed “to assume professional responsibility for handling a legal matter.”[10] In surveying newly licensed attorneys and their employers on this point, the task force found that “oral and written communication skills” were some of the most important skills for lawyers to possess.[11] It also found that while those surveyed thought that these skills could be taught in law schools, they also thought that law schools were doing a poor job teaching them.[12] For example, 77 percent of newly licensed Chicago attorneys thought that oral communication could be taught in law school, but only 39 percent thought sufficient attention was given to teaching it.[13] Similarly, 91 percent thought that written communication could be taught in law school, but only 55 percent thought that law schools devoted sufficient attention to teaching it.[14]

The task force published its report, known as the MacCrate report after its chairperson Robert MacCrate, in July 1992. The report included a statement of skills and values that “are desirable for practitioners to have.”[15] While the task force recognized that law school graduates may not acquire all of the skills in law school,[16] it saw the statement as something that could assist law schools in curricular development, including “[r]evisions of conventional courses and teaching methods to more systematically integrate the study of skills and values with the study of substantive law and theory.”[17] Among the ten skills identified by the report as “fundamental lawyering skills” were problem solving, legal analysis and reasoning, factual investigation, communication, and recognizing and resolving ethical dilemmas.[18]

Despite its lofty goals, a 1995 survey of legal writing program directors indicated that the report did not significantly impact their programs.[19] The 1996 ABA standards, however, did see two changes to Standard 302 that seemed to flow from the MacCrate Report. The first change stated that law schools must offer “an educational program designed to provide its graduates with basic competence in legal analysis and reasoning, legal research, problem solving, and oral and written communication.”[20] The second change directed law schools to “offer live-client or other real-life practice experiences” that “might be accomplished through clinics or externships” but need not be offered to all students.[21]

. . . .

The 2001–2002 ABA Standards did make some significant changes to the teaching of lawyering skills—changes that impacted my law school experience. First, rather than simply requiring that law schools offer a writing experience and skills instruction, the standards were amended to require that students receive:

(1) Instruction in the substantive law, values and skills (including legal analysis and reasoning, legal research, problem solving and oral and written communication) generally regarded as necessary to effective and responsible participation in the legal profession; and

(2) Substantial legal writing instruction, including at least one rigorous writing experience in the first year and at least one additional rigorous writing experience after the first year.[22]

 . . . .

In the fifteen [now nearly nineteen] years since I graduated from law school, surveys of law students and recent graduates continue to recognize the importance of lawyering skills education and call for law schools to do a better job in teaching lawyering skills. The 2007 Carnegie Report Educating Lawyers called for law schools to adopt an “integrated curriculum” that included “legal doctrine and analysis,” lawyering skills, and professional identity.[23] This suggestion likely stemmed in part from student suggestions “that writing should be ‘more integrated into courses on doctrine’ in order to speed up [their] learning of legal reasoning.”[24] . . .

Despite the importance of these skills, the perception among practicing lawyers is that law schools still are not doing sufficiently teaching lawyering skills. A 2014 survey by BARBRI revealed that only 23 percent of practicing attorneys “believe recent law school graduates possess sufficient practice skills.”[25] While the ABA standards now require students to complete at least six credit hours of experiential learning to graduate,[26] there is still a need, as the Carnegie Report recognized, for an integrated curriculum in law schools that incorporates skills learning into the doctrinal classroom.

This lengthy history shows the Council’s support for skills education—support that is also demonstrated by the Council’s consideration of expanding the number of experiential credits students must earn to graduate. It also shows the importance of not just standalone skills courses, but also incorporating skills into the doctrinal classroom. 

Unfortunately, affording skills faculty a lesser status makes some doctrinal colleagues unwilling to listen to our suggestions for incorporating writing into the doctrinal classroom (or other suggestions for that matter). I recall discussing pedagogical methods in a committee meeting with tenured colleagues and having my suggestions dismissed because legal writing is just different. Ironically, the suggestions came from the doctrinal classes I taught, not my writing course. Sadly, this type of treatment is common.

Formal recognition from the Council and the ABA as a whole that skills faculty deserve tenure-like protections will help eliminate the status-based stratifications that have formed in legal academia. I hope that the result will be more collaboration and an overall better educational experience for our students.

The Revisions Do Not Go Far Enough

 While I appreciate the value of incremental change, and I recognize that law and legal education change at a snail’s pace, the revisions do not go far enough. I encourage the Council to consider requiring law schools to offer complete parity between doctrinal and skills faculty. While tenure-like protections are a good starting point, serving in a clinical tenure position for the past six years has shown me the flaws in a bifurcated system.

First, at many law schools skills faculty perform the same tasks as tenure-track faculty. We teach doctrinal classes, we conduct research, we write books and scholarly articles, we serve on college and university committees, we supervise student notes, and we present at conferences. Many of us are, in fact, national experts in our fields. To use a common adage, if it walks like a duck and talks like a duck, shouldn’t we call it a duck?

Second, while clinical tenure does provide job protections, it also promotes inequalities that negatively affect women and minorities. The University of Arizona offers a type of clinical tenure called continuing status. At the University as a whole, 57.5% of the faculty who hold continuing status or are on the continuing status track are women.[27] This is compared to the 33.3% of women who hold tenure and the 50.9% of women who are tenure-track. The racial disparities are also significant for some categories:

Race/Ethnicity	Continuing or continuing eligible faculty	Tenured faculty	Tenure-track faculty
American Indian or Alaska Native	3.3%	1.2%	1.5%
Asian	2.3%	13%	15.7%
Black or African American	1.4%	1.9%	3%
Hispanic or Latinx	19.2%	7.2%	10.1%

At the College of Law, 13 out of 23 tenure-track faculty are women (excluding faculty that also hold an administrative designation).  On the continuing status side, 21 out of 31 faculty are women.  The racial disparities are not present at the College of Law, with 10 tenure-track faculty and 13 continuing faculty identifying as minorities.

These distinctions between tracks are important, since the mean salary for tenure-track faculty at the College of Law is $190,503, while the mean for continuing status faculty is $119,198. The differential at the University is not as stark, but still present, with the mean salary for tenure-track faculty at $144,315 and continuing status faculty at $106,906.

Thus, while I do strongly support job protections for skills faculty, I encourage the Council to consider if these changes will give skills faculty the full recognition that they deserve, or will it continue to perpetuate disparities that often negatively affect women and minorities.  I would encourage the Council to be a leader on this issue and require schools to offer tenure to skills professors, or, at a minimum, require that the tenure-like positions offer similar compensatory prerequisites.

Thank you for the work that you have done and your consideration of my comments. I look forward to following the Council’s actions on this matter.

Warmly,

Tessa L. Dysart

Assistant Director of Legal Writing

Clinical Professor of Law

 

[1] Tessa L. Dysart, An Integrated Approach to Constitutional Law in Lawyering Skills in the Doctrinal Classroom: Using Legal Writing Pedagogy to Enhance Teaching Across the Law School Curriculum 181 (Tammy Pettinato Oltz ed. 2021).

[2] Susan M. Case, The NCBE Job Analysis: A Study of the Newly Licensed Lawyer, B. Examiner, March 2013, at 52–56.

[3] Id.

[4] Id.

[5] Tessa L. Dysart, An Integrated Approach to Constitutional Law in Lawyering Skills in the Doctrinal Classroom: Using Legal Writing Pedagogy to Enhance Teaching Across the Law School Curriculum 181, 183–86 (Tammy Pettinato Oltz ed. 2021).

[6] ABA Standards and Rules of Procedure for Approval of Law Schools, intro. at vi (2013-14) (Am. Bar Ass’n amended 2017–18).

[7]ABA Standards and Rules of Procedure for Approval of Law Schools § 302 (1978) (Am. Bar Ass’n amended 2017–18); see also Maccrate Report, supra note 1, at 233.

[8]ABA Standards and Rules of Procedure for Approval of Law Schools § 302 (1981) (Am. Bar Ass’n amended 2017–18).

[9] MacCrate Report, supra note 1, at xi.

[10] Id.

[11] Id. at 380.

[12] Id. at 381.

[13] Bryant G. Garth & Joanne Martin, Law Schools and the Construction of Competence, 43 J. Legal Educ. 469, 481 tbl.5 (1993).

[14] Id.

[15] MacCrate Report, supra note 1, at 123.

[16] Id. at 125.

[17] Id. at 128.

[18] Id. at 138-140.

[19] Lucia Ann Shilecchia, Legal Skills Training in the First Year of Law School: Research? Writing? Analysis? Or More?, 100 Dick. L. Rev. 245, 261-62 (1996).

[20] ABA Standards and Rules of Procedure for Approval of Law Schools § 302 (1996) (Am. Bar Ass’n amended 2017–18).

[21] Id.

[22] ABA Standards and Rules of Procedure for Approval of Law Schools § 302 (2001–02) (Am. Bar Ass’n amended 2017–18); see also Kenneth D. Chestek, MacCrate (in)Action: The Case for Enhancing the Upper-Level Writing Requirement in Law Schools, 78 U. Colo. L. Rev. 115, 121–22 (2007) (discussing the changes in the 2001 amendment).

[23] William M. Sullivan et al., Educating Lawyers: Summary 8 (2007).

[24] William M. Sullivan et al., Educating Lawyers 104 (2007). In sharing this paper at a faculty workshop at the University of Arizona James E. Rogers College of Law, some of my colleagues noted that formerly, legal writing was taught as part of doctrinal classes and not as a standalone class. While I do think writing should be incorporated into the doctrinal classroom, I do not think that this incorporation should supplant existing first- and second-year legal writing courses, which teach the foundational aspects of legal writing to students.

[25] 2014 State of The Legal Field Survey, Barbri Group, https://www.thebarbrigroup.com/2014-state-of-the-legal-field-survey/ (last visited July 7, 2019).

[26] ABA Standards and Rules of Procedure for Approval of Law Schools § 303 (2014–15) (Am. Bar Ass’n amended 2017–18).

[27] The data contained in this letter was provided to me by the University of Arizona University Analytics & Institutional Research Department.