Clinical Law Prof Blog

UDC Law Launches Conversations with Clinicians

UDC Law is launching our Conversations with Clinicians speaker series. Each conversation in our series will feature a UDC Law clinician hosting a special guest or two to discuss a topic of interest to the clinical community.

UDC Law has a dual mission: to provide legal services to indigent district residents and to empower students from marginalized and unrepresented communities to join the legal profession. A pioneer in clinical legal education, UDC Law remains deeply committed to the advancement of clinical education. The Conversations with Clinicians series will engage leading clinicians across the country to explore various topics of interest to our community. Here are details on the three conversations scheduled this semester:

On Friday March 11 from 12:30-1:30pm EST UDC Law Dean Renee Hutchins will be in conversation with the University of Maryland’s Michael Pinard. Dean Hutchins and Prof. Pinard will explore career trajectories for clinicians. To register for this first conversation, please visit https://bit.ly/UDCLawConvos

 

On Friday March 25, UDC Law Associate Dean for Clinical and Experiential Programs, Lindsay M. Harris, will engage with Prof. & Associate Provost Laila Hlass of Tulane and Assistant Dean for Experiential Education Allison Korn of UCLA to discuss trends in experiential legal education discussed in their 2020 Villanova Law Review article, Assessing the Experiential Revolution. Save the date!

Last but certainly not least, on Friday April 22, UDC Law General Practice Co-Director, Tianna Gibbs, will engage with Prof. Norrinda Hayat, Director of the Civil Justice Clinic at Rutgers Law, to discuss Prof. Hayat’s critically important 2021 Clinical Law Review piece, Freedom Pedagogy: Towards Teaching Antiracist Clinics. Save the date!

All are welcome to join in these conversations. 

 

How To Be An Experiential Learning Expansion Cheerleader and a Traditional Clinician?

Alex Scherr’s thoughtful piece this week on what an externship should be struck home for me, and in an internal way.  I can’t wait for Part II.  As a clinician I am really proud of what I do.  We all are, or we wouldn’t keep at it.  But I also face an internal struggle at times, a struggle of how to advocate for and expand experiential learning through law clinics and/or externships, whatever they may be. 

I am a traditional clinician, for the most part.  By this I mean that I teach in and direct a live-client clinic where I enroll up to eight to twelve students a semester and supervise them on cases.  That’s a pretty standard way of doing it.  While that may be the case, I also value my creativity to tinker with that established model, mainly so that I can do more subject-wise, project-wise, and expand the number of students in my clinic.  My tinkering has involved, for example, out-sourcing some supervision when appropriate by volunteer supervising attorneys or community partner attorneys, and relying more on technology projects (instead of cases) for the development of pro se resource projects and developing student learning. 

My overall goal is simple – I want to expand the number and type of experiential learning opportunities so that as many students as is practical get a valuable and meaningful experience.   The ABA implicitly with the new requirement for six hours of experiential learning feels the same.  My struggle is this – how do I as a clinician advocate for that expansion?  Is it only through the development of law school clinics, or can I also advocate for externships?  By advocating for externships am I turning my back on law clinics?  By only advocating for traditional law clinics, am I turning my back on viable and meaningful externship opportunities for law students?  How do we handle situations when there are really great externships that exist – especially when they seem to duplicate some of the clinical work that we do?  Do we keep doing that work?  Are we worried that students might choose the externships over us because of the different ABA standards and the expectations involved?  What can we do when externship-type offerings are being relied on as cheaper equivalent alternatives to what we do?

I know that there are substantive differences between clinics and externships, not only in how we teach and manage them but also because of what the ABA requires.  Yet as a group, how do we handle this as clinicians?  What do you personally do?  Does anyone else face the same struggle?

What Should an Externship Be? Part I

Recent action by the A.B.A. Council on Legal Education and Admission to the Bar defers a critical question for clinical education and sets the stage for sharp conflict over externships. No, I do not refer to the pending question about “paid externships.” The question is more fundamental: what should an externship be?

In fairness, the dispute over paid externships did generate this question. For several years, the Council has come under increasing pressure to repeal the ban on credit for compensated work, as currently embodied in Interpretation 305-2. After voting against repeal in the summer of 2014, the Council was required by the House of Delegates to revisit the question. This past winter and spring, the Council’s rule-drafting sub-committee, the Standards Review Committee, issued a new proposed rule for the Council to consider:

        "Proposed Interpretation 305-2
        "A law school that grants credit for a field placement for which a student receives compensation must demonstrate sufficient control of the student experience to ensure that the requirements of the Standard are met. The law school must maintain records to document the steps taken to ensure compliance with the Standard."

This proposal requires law schools to demonstrate “sufficient control of the student experience” so that “the requirements of the Standard are met.” The proposal assumes that Standard 305 actually has requirements for what the student experience in an externship should be.

Yet Standard 305 says little about the student experience. Its requirements include the following:

• A student should receive credit commensurate with the time and effort the student invests and with the “quality of the educational experience.”
• A faculty member should evaluate each student’s educational experience, using a stated method of evaluation.
• The school should state goals and methods for the student experience and must articulate how the course requirements achieve those goals using those methods.
• The school should invest instructional resources that are adequate to satisfying the course’s goals.
• The school should maintain regular contact with site supervisors to maintain the “quality of the educational experience.”
• A student should have “opportunities” to reflect on their experience.

These provisions require that the student have experiences of undefined quality in a course that has non-specific goals and methods. This is educational procedure without teaching substance, small surprise to those who have had to fit their externship courses into the airless limits of 305 during the site inspection process.

The A.B.A. can do better. In fact, it has done better. Standard 303 defines what a course must offer to qualify as an experiential course; Standard 304 does the same for a course to qualify as a “clinic” or a “simulation.” These Standards require courses to address specific content, such as “doctrine, theory, skills, and legal ethics”; to use specific teaching techniques, including repeat performance, formative feedback, and student self-evaluation; and to make specific demands on teachers, including faculty who supervise, give feedback, and teach a classroom course.

Whatever the merits of these requirements, none of them must apply to externships. Yes: if a law school wants an externship course to qualify as “experiential,” the externship must satisfy Standard 303. Yet Standard 303 does not require what Standard 304 requires for clinics and simulations, including specific kinds of experiences, supervision of and feedback about repeat performance, and a classroom course. In fact, it remains possible for a school to give students credit for externships that do not qualify as “experiential courses” at all, precisely because Standard 305 requires so little.

In effect, the Standards continue to allow schools to create procedurally-generated externships that fit the slim contours of Standard 305, with little to no meat on their bones. Such a course needs to address no specific content, to use no specified teaching techniques, and to ask little of faculty and site supervisors, beyond participation, availability, and an evaluation at the end.

In early August, the Council rejected the proposed interpretation and has asked for new proposals, specifically a review of Standard 305. There is a solid chance that the Council will now address the more fundamental question: what should an externship be? Should Standard 305 now include more substance and less process? Should externships receive a definition comparable to Standard 304’s definitions of clinics and simulations?

The next installment of this blog post discusses these questions. In the process, I will ask: should we require of externships the same things that we require of in-house clinics? Or can we now regulate externships in accord with their inherent virtues as learning and teaching?

Let's Make History

It’s been a heck of a year. Three people in my life died unexpectedly and I am witnessing four friends and colleagues battling cancer. Commencement was yesterday and I, for one, am ready for this year to end. It was my own personal annus horribilis, and so no one was surprised when I stood on the law school steps after our graduation party, tore off my academic regalia, and shouted joyously, “Bring on summer!” before heading straight to the last remaining video store in town and loading up my arms with all those movies I didn’t have time to watch this past year. 

The Theory of Everything? Check. The Imitation Game? Check. American Sniper? Check. My pop culture deficit is so deep and accelerating so rapidly, it should qualify for its own deficit clock. In the past semester alone, I missed two student references to the District 12 finger sign from The Hunger Games trilogy and a case rounds cameo by Viggo Mortensen from The Lord of the Rings. If I wanted to remain a relevant authority in my students' eyes, I knew that I had to commit to a summer long bender of kettle corn binges and movies at midnight. The sacrifices one has to make for professional development….

And so last night, there I was watching The Interview. Who wasn’t curious about the movie that purportedly led to the Sony email hack and brought down Amy Pascal? Bad reviews aside, I like to laugh, so it doesn’t take much to convince me to watch a comedy, especially to kick off a private summer movie festival on my very own couch.

But the movie was bad, really bad, and morning came too quickly. The phone was ringing, our preschooler burst through the bedroom door dressed and ready to go to school, and it seemed the sun was shining even brighter and earlier than usual. For some reason, my head was hurting despite the fact that I had washed that kettle corn down with nothing more than water and a splash of Martinelli’s. Had I finally reached that age when staying up past midnight could have this effect?

As if the sobering after effects of one bad late night movie in middle age was not painful enough, I sat down to nurse my morning coffee and began flicking through my emails on my smartphone when I was jolted awake in a moment of panic by the National Law Journal headline proclaiming, “This is the Moment--for Clinics”! Now?! I was only 16 hours into the summer following my annus horribilis, and was still wearing fuzzy pajamas. Right now?!

As my thoughts began to race about this moment--our moment--in history, I began to resent the cruelty of fate. “Couldn’t we have another moment?” I wondered. Why didn’t we have 1998, before the tech bubble burst, the Twin Towers fell, the Long War began, Enron went bankrupt, the housing market collapsed, the financial crisis of 2008, and the crisis in legal education began? Who got that moment?

Why does our moment have to be now when law school enrollments are down? Budgets are being slashed. At least two law schools are merging, and another is on the cusp of closing. One of the oldest and largest law school clinics in the Northwest was closed unexpectedly last fall due to a budget deficit at the law school. Our most senior clinical faculty are retiring from coast to coast. Others are dying. Many are not being replaced with tenured or tenure-track appointments. Law school deans are throwing in the towel after 2.8 years on average, leaving us without stable leadership. Our students are less qualified, and need more remediation. We have more foreign students enrolling in our LLM programs, some seeking clinical experiences. Our schools need students and our students need jobs, and so we work to recruit, teach, train, place, and mentor them in a market that bears little resemblance to when we graduated from law school.

All the while, our nation’s clinical faculty continue to grow and adapt and lead as the market forces legal education to adapt to a new century with different needs and unique challenges including globalization, digitalization, and a rapidly changing environment. It might not have been our first choice, but this is our moment in time. 

Oh well. The film festival was off to a bad start anyway. Who needs summer when there is work to be done? Let’s make history.  

The Death of a Clinic

On January 1, 2015, there was one fewer law school clinic in America. The Lewis & Clark Legal Clinic, one of the oldest and most well-respected clinics in the Northwest, silently closed its doors.

The Lewis & Clark Legal Clinic provided debtor-creditor, landlord-tenant, and family law services, including a significant amount of work representing victims of domestic violence. The clinic was founded in 1971, and together its full-time faculty, Dick Slottee, Teresa Wright, and Mark Peterson had spent approximately fifty years combined at Lewis & Clark. All had security of position; in fact, Professor Slottee, who was the clinic director, had tenure. The clinic served approximately 230 low-income and indigent clients per year and involved 35 to 70 students.

As recently as last summer, Lewis & Clark Law School touted the clinic’s work in Advocate Magazine. In the words of one recent Lewis & Clark alumna, “The value derived from the Lewis & Clark Legal Clinic is immeasurable. It teaches practical skills and it provides students a special opportunity to put the legal theories we learn in an abstract manner in the classroom into practice . . . The focus is on the students and the students are wholly supported.”

According to the Lewis & Clark Law School Dean, Jennifer Johnson, the decision to close the clinic was driven by budget constraints. She indicated that the goal was to offer lawyering skills and opportunities “for all students in a cost effective manner” and stated that “Going forward, we must focus our in-house clinics on those with significant fund raising potential,” while asserting that “current budget realities-for both the law school and our students-make this move necessary.” The rumor is that Lewis & Clark had an unexpected million-dollar shortfall and had already significantly cut the library budget (the largest budget item other than personnel), and so moved to the next largest item in the budget: the law school’s clinic. True or not, Johnson’s own framing of the decision exclusively as a financial one is worrisome.

In Pricing Clinical Legal Education, 92 Denver University Law Review 1 (2014), Robert Kuehn of Washington University Law finds that offering clinical opportunities to law school students has no net impact on tuition and concludes that offering clinical opportunities to students is determined by the law school’s will to offer such opportunities to students. As law schools consider how to balance the budget and keep the lights on during the worst downturn in law school enrollment in modern history, it is natural that some administrators may be tempted to conduct a casual analysis and conclude that high enrollment courses are the answer and try to cut costs by reducing smaller experiential courses.

However, a familiarity with effective pedagogies and the retention yields of various methods reveals that not all courses are equal when it comes to learning outcomes. The value of courses and teaching methods should not be measured predominantly by teaching or staffing inputs, but rather by learning efficiencies, efficacies, and outcomes. After all, if we hold ourselves out as educators, we owe it to our students to have a reasonable familiarity with effective educational methods and to utilize and prioritize those, rather than continue to offer course and curricula designs that have been scientifically proven by study after study to be ineffective. 

Accepting tuition in exchange for enrollment in courses designed around learning methods that have been scientifically proven to be ineffective is unconscionable. Those simulated practice courses, externships, and clinics may cost more than placing 80 students in the room with a single lecturer, but they are far more likely to produce better learning outcomes for our students. Can you imagine a law school committed to designing and offering courses according to learning outcomes rather than cost input?

Even if one is not motivated by effective pedagogy, from a business perspective, we know that students care about clinics. A recent survey indicates that clinics and externships are one of the most significant factors students consider when deciding where to attend law school (location is number one).

After the decision to close the Lewis & Clark Legal Clinic was announced in September, another faculty member, Kathy Hessler, sent an email to the national clinic listserv informing the members of our community. She pointed out that the Lewis & Clark Legal Clinic was the only one at the law school that was funded directly by the law school. It is hard to imagine other law school courses being expected to go out and procure their own funding.

When one considers the effectiveness of clinical pedagogy, as well as the new ABA accreditation standards mandating experiential education, it is deeply concerning that an educational program built around one of the most effective learning methods known to us would be singled out to be "self funded."

Even more concerning, though, was the resounding silence of the national clinical community to the news of the decision. Just a handful of emails were sent in response. At the Northwest Clinical Conference in October, attendees voted to send a letter to the Lewis & Clark Dean expressing our deep concern over the decision and offering our support to reverse the decision. In response, Dean Johnson emailed each signatory and the dean of the person’s home law school, and directed them to have our dean contact her if we would like “further input into this issue.” Was she trying to intimidate us into silence with this power play? Perhaps, but apparently, there was no need. I have said nothing since. Have you?

This is the way a clinic ends. This is the way a clinic ends. This is the way a clinic ends. Not with a bang, but with silence.

 

The Great Debate: Externships for Credit and Pay (ABA proposal for elimination of Interpretation 305-3).

As an Externship Program Director and co-chair of the AALS Section on Externships, I have been deeply entrenched in the proposed elimination of Interpretation 305-3 for quite some time now.  My primary reason for posting this is to provide information about why I (and many of my clinical colleagues) support keeping the interpretation. 

The main supporters of the interpretation’s elimination are students who will be graduating with vast amounts of loan debt.  Of course, there are students and clinicians on both sides of the issue; however, if you read through the ABA's notice and comment website, you will find that all of the student remarks support elimination while nearly all the clinical and community partner organizations’ comments support upholding the Interpretation.

Concerns

The primary benefit of an externship should be to the student and not to the placement (employer).  There may be some employers who would be willing to build this benefit into an employee contract, but I suspect that most cannot or will not.  Without the leverage of a contract that requires the employer to put their rights subservient to the students’ learning objectives, the pedagogical value of externships would be severely undermined.  This is one of the main concerns of those who oppose elimination of the prohibition. 

To read more about this concern and several others, please see CLEA’s Statement.  

To read more about my personal concerns, please see my statement to the ABA.

Middle Ground? 

One possible way to alleviate some of the tensions that exist would be clarification of the Interpretation’s final sentence: “This Interpretation does not preclude reimbursement of out-of-pocket reasonable expenses related to field placements.”  On the externship listserv, we often field questions about what constitutes "reasonable expenses.”  Some externship directors construe this broadly while others construe the expenses that can be recouped narrowly.   If the ABA provided some additional guidance that enabled us to construe this broadly, students could benefit from grants or other stipends offered to offset the costs.  If grants and stipends are external and not directly connected to compensation for work product, the money would not compromise the relationship in the same way as a salary.

Final Thoughts

Reasonable minds can disagree.  I am certainly empathetic about the law student experience of today; I have read their comments and discussed this issue with my ABA student representatives.  My colleagues and I have given much consideration to their position.  I only ask that law students and the Council do the same.  We have the collective experiences of many externship directors, who have done this work for decades.  We too, have the value of the student experience at heart; we just have a different interpretation of the word "value." 

Related articles

ABA Standards Review Committee votes for 6 credits of experiential learning

The DOL, Law Students, and Interships

ABA Considers Increasing Mandatory Clinical Requirement From 6 to 15 Credit Hours