Sunday, April 5, 2020
In music, a caesura is a complete break in metrical time with total silence. The conductor decides when to start the music again. For the poet Hölderin, a caesura in tragedy is "a rupture that sunders the continuity of historical progression and provides a break in the jointure of experience and expectation." (Charles Bambach)
Caesuras also occur in history. Philippe Lacoue-Labarthe said a historical caesura "would be that which, within history, interrupts history and opens up another possibility of history, or else closes off all possibility of history." He thought Auschwitz was the caesura of the twentieth century. Similarly, Charles Bambach identified World War I as a historical caesura. He wrote, "The unspoken bourgeois faith in both the meaning and coherence of history had been shattered."
The coronavirus has created a caesura in the history of the twenty-first century. Life has stopped, and the only topic is the health and economic effects of the virus. The direction our history was going has been interrupted, and it is probable that history will go in a very different direction than it would have absent the virus.
Despite political divisions, the first two decades of the twenty-first century were a time of optimism. People believed that science controlled nature and that we were living in world in which mankind used technology to make our lives better. Writers, like Steven Pinker, argued that human progress was real and that we were living in the most peaceful time in history.
The coronavirus shattered this optimism. Our greatest scientists could not prevent the spread of a microscopic bug. Our wise leaders could not prevent the spread of the virus, and they often did a poor job treating it. The virus destroyed our economy, and it will have significant effects on our lives for years to come, just like World War I affected society and culture for a over a decade.
There is no doubt that the coronavirus will exert crucial effects on our lives, our society, and our culture. What has happened, and will happen before the end of the crisis, will send us in a direction different than we were on before. The virus will affect all aspects of our lives--our beliefs, our politics, our faith in science, the structure of societies, and even our music and our art.
It is impossible to predict how the virus and its effects will influence our future. Will we become more optimistic, more pessimistic, or more realistic? Will we become a kinder, gentler society because of our mutual suffering, or will we become more distant from our pandemic isolation? Will the world become more global, or will the suffering caused by the virus limit globalization? Will our governments become more caring of their people, will politics become more bipartisan, or will our rulers become more repressive?
No one can answer these questions at present. The only lesson we can glean from history is that the effect of a historical caesura is unpredictable.
A few authors, however, have tried to predict how our society and culture will look after the pandemic. Bret Stephens of the New York Times views at the effects of the coronavirus from 2025. (here) He sees the virus as facilitating the spread of authoritarianism. He states, "The pandemic provided a ready-made excuse for democratic governments around the world to obstruct opposition parties, ban public assemblies, suppress voting, quarantine cities, close borders, limit trade, strong-arm businesses, impose travel restrictions and censor hostile media outlets in the name of combating 'false information.'" He adds, "Remarkably, the tactics met with comparatively little resistance, partly because they were advertised as only temporary, and partly because the concerns of civil libertarians paled next to calls to 'flatten the curve.'" He also writes, "It was left to Trump to preside over an expansion of the welfare state the likes of which Bernie Sanders could only have dreamed about a year earlier." He concludes, "At the outset of the crisis it may have seemed that progressive parties stood to benefit politically. The opposite proved true."
Henry Kissinger believes that the pandemic will forever alter the world order and that governments must begin to prepare now for the post-pandemic world. (here)
He writes, "Now, in a divided country, efficient and farsighted government is necessary to overcome obstacles unprecedented in magnitude and global scope. Sustaining the public trust is crucial to social solidarity, to the relation of societies with each other, and to international peace and stability." He continues, "Nations cohere and flourish on the belief that their institutions can foresee calamity, arrest its impact and restore stability. When the Covid-19 pandemic is over, many countries’ institutions will be perceived as having failed. Whether this judgment is objectively fair is irrelevant. The reality is the world will never be the same after the coronavirus."
He warns, "The crisis effort, however vast and necessary, must not crowd out the urgent task of launching a parallel enterprise for the transition to the post-coronavirus order." He notes, "Leaders are dealing with the crisis on a largely national basis, but the virus’s society-dissolving effects do not recognize borders." He declares, "Drawing lessons from the development of the Marshall Plan and the Manhattan Project, the U.S. is obliged to undertake a major effort in three domains. First, shore up global resilience to infectious disease. . . . Second, strive to heal the wounds to the world economy. . . . Third, safeguard the principles of the liberal world order." He adds, "The world’s democracies need to defend and sustain their Enlightenment values." Similarly, "Restraint is necessary on all sides—in both domestic politics and international diplomacy. Priorities must be established." He concludes, "Now, we live an epochal period. The historic challenge for leaders is to manage the crisis while building the future. Failure could set the world on fire."
Regardless of which of the above views you agree with, or if you have your own, it is indisputable that the world will change dramatically in the coming years. One other thing will be indisputable: We will be the ones making that change. Be prepared!
Friday, April 3, 2020
Emory's biennial conference on the teaching of transactional law and skills is postponed due to the COVID-19 crisis
The transactional skills conference originally scheduled for June 5-6 has not surprisingly been cancelled due to the covid crisis but the organizers tell me they plan to reschedule as soon as the coast is clear. Here is the official announcement from conference coordinator Kelli Pittman:
We hope that all of you are safe and well.
Due to the uncertain length of the COVID-19 global pandemic, and out of an abundance of caution, we have decided to cancel the Transactional Law and Skills Education Conference currently scheduled for June 5-6, 2020.
We will re-schedule the Conference and revisit our theme – “Hindsight, Insight, and Foresight: Transactional Law and Skills Education in the 2020s” – when it is appropriate and safe to do so.
If you have already registered for the Conference, we will refund your money. If you have submitted a proposal or a nomination for the Tina L. Stark Award for Teaching Excellence, you will have the opportunity to resubmit your proposal or nomination when we establish the new Conference date.
If you have already reserved a room at the Emory Conference Center Hotel please call them at 800.933.6679 to cancel your reservation. For other Conference-related questions, please contact our Conference Coordinator, Kelli Pittman at email@example.com.
During this period of “social distancing,” we are proud to be members of a community of transactional law and skills educators dedicated to excellence. We look forward to re-scheduling the Conference and welcoming you back to Emory.
When we have more information about a rescheduled date, we'll let you know.
Stay safe everyone.
Monday, March 30, 2020
Critics have been talking about the pernicious influence of the U.S. News law school rankings for many years. Trying to go up in these rankings has caused law schools to devote resources to items that would be best used elsewhere. In the last two weeks, two legal education reports have appeared that reiterate the harm caused by the U.S. News rankings.
Law School Transparency: LST's 2025 Vision devotes considerable space to the U.S. News rankings. The authors proclaim, "the incentives landscape must also change. Schools and students alike rely on the U.S. News & World Report law school rankings as the pinnacle benchmark for quality and prestige. Students use these rankings to make decisions about where to apply and attend; schools use them to decide how to allocate limited resources. Students that rely on U.S. News make less informed decisions, increasing their debt and expanding the mismatch between debt loads and career outcomes. Schools, meanwhile, drain their resources and creative spirit to compete. The incentives the U.S. News ranking system creates and the hierarchy it reinforces complicate even the most basic reform conversations within law schools. Decision-makers want and need new systems of measurement that produce better incentives, yet still offer consumers valuable information as they decide where to attend law school." (emphasis added)
They continue, "This methodology is the cheese for this rat race, which would be easier to stomach if the rankings effectively measured anything meaningful. The trouble is that the rankings are neither meaningful nor effective." (emphais added)
They add, "While ranking concerns can be abstract, these concerns also drive policies that target key metrics. . . . The rankings produce a non-stop rat race without a finish line, but with a host of incentives that extract a school’s resources rather than enhance its ability to affordably deliver a better education." The Report also includes a detailed analysis of the business structure of U.S. News. It is eye-opening.
They conclude, "Myriad factors stand between good intentions and meaningful reform, but more accessible, affordable, and innovative law schools can become the new normal if we devote additional energy to changing the structural barriers that hold schools back."
Two weeks ago, the ABA Commission on the Future of Legal Education issued a new report on legal education, Principles For Legal Education and Licensure in the 21st Century: Principles and Commentary, which similarly criticizes the harmful effects of rankings on the allocation of law school resources. The Report declares, "In conjunction with regulatory changes and improving the definition, collection, and use of relevant data, address the myopic and counterproductive rankings to which law schools are beholden. We must develop consumer information tools which meaningfully allow students to make appropriately individualized informed choices. A single ordinal ranking of a wide variety of kinds of institutions cannot do that. We must work together to address this collective action problem." (emphasis added)
The Report continues, "We regulate law schools in ways that are myopic, outdated, and excessively one-size-fits-all. Ordinally ranking the multitude of law schools exacerbates those characteristics. All of this affects how schools prioritize their resources. It diverts their focus from anticipating the effects of technology, globalization, and mobility; experimenting with new educational models; and adapting to changing professional requirements. It also encourages incrementalism."
In sum, both Reports demonstrate the pernicious influence of the U.S. News rankings on legal education. The solution: stop cooperating with U.S. News. Law schools should stop sending information to U.S. News and stop selling their law schools through the rankings.. Professors should stop returning the reputation forms, which we all have received. U.S. News cannot issue rankings if it lacks the information to produce those rankings. I realize that this requires that law schools and its faculties overcome the "prisoner's dilemma," but legal education will remain moribund if we let U.S. News decide how resources are allocated.
Saturday, March 28, 2020
Friday, March 27, 2020
If you'd like to add some background imagery pizazz to your Zoom classes, student conferences, or other online activities, the internet is your oyster offering up an almost unlimited number of options. On Zoom's website you can find instructions for changing the default background image. You can then upload your own photos to Zoom to use as video conferencing wallpaper instead. Perhaps a personal photo from a favorite vacation spot? Or maybe a photo of a historical location? Yup, Zoom let's you do that.
But there are many other options too. For instance, the interior design website Curbed offers pointers on what makes a good, stylish home video conferencing background and then, in case your own home office isn't up to snuff, they provide 15 sample room images you can download for use on Zoom.
There's also this: Don't just post your class video recordings to the cloud, with these free templates from Canva, you can make it look like you're actually teaching from the cloud.
The popular stock image website Shutterstock also offers tips for choosing effective Zoom backgrounds and then provides a bunch of free templates you can use.
Looking for something more, uh, unusual? What about scary backgrounds? Check! Sporty backgrounds? Checkarooni! Exotic backgrounds? Yup, you can find those too. Romantic or sexy backgrounds? I'll let you search for those on your own.
Thursday, March 26, 2020
LST summary: "When law schools price potential contributors out of the profession, they jeopardize the pipeline of students who want and can afford to protect the rule of law, deliver quality legal services, and narrow the justice gap. Myriad factors stand between good intentions and meaningful reform, but more accessible, affordable, and innovative law schools can become the new normal if we devote additional energy to changing the structural barriers that hold schools back.
On the one hand, the regulatory landscape needs change. The law school accreditation standards need to be stricter in some places and less restrictive in many others. On the other hand, the incentives landscape must also change. Schools and students alike rely on the U.S. News rankings as the pinnacle benchmark for quality and prestige. The incentives the U.S. News ranking system creates and the hierarchy it reinforces complicate even the most basic reform conversations within law schools.
This report outlines very specific plans and proposals that address these challenges. It's easy to complain, but LST and its partners from throughout the profession will lead the way.
It's quite a long report. For that reason, we kept the intro very short and also led with a summary of the plans and proposals. That is all on pages 5-11. The balance of the report gets into the details."
"Let's go surfing now" . . . artist Tom Sachs will teach you how. A fun film about adult learners and skill acquisition.
Let's take a break from Zoom tips and watch a fun surf video from artist Tom Sachs that offers good insights for teachers and students about the challenges involved in learning a difficult, new skill. One online surfing magazine even called it a film about the adult learner. This is our second installment in an occasional series "what-can-sports-teach-us-about-skills-development" - the first being a story about Olympic skiing champ Mikaela Shiffrin whose training regimen emphasizes technique over race results.
If you're not a surfer, like me, it's a sport whose grace and beauty belies its difficulty (a pro surfer featured in the film says he's spent 35,000 hours becoming an expert). The premise of the film is that Tom Sachs and some of his NYC staff travel to Bali to transform themselves from bad surfers into "OK" ones. In the course of their adventure, they offer many observations and truisms about the difficulty of learning new skills. One of the things that works well about the film is that it captures the struggles of the average athlete trying to improve their skill set. Understandably, many people draw their inspiration from watching sport stars, people at the very top of their profession. But for others (and perhaps especially 1L law students), they might better relate and identify with a group of average Joes striving to achieve modest competence.
Along the way, the film offers plenty of observations that anyone trying to learn a new skill might find reassuring while also boosting teachers' empathy for those same student struggles. Among them:
- There are some skills that can't be taught, instead they have to be learned (i.e., the teacher can show students how to do it but ultimately students have to put it together for themselves).
- Having the best teachers in the world, the best equipment, and the best support isn't enough to achieve proficiency. Students also have to put the hours in.
- Acquiring a new skill starts with learning the fundamentals (lesson # 2) but once you acquire those fundamentals, progress comes faster and you start to see for yourself how to get better still (lesson # 4).
- Learn from a master (lesson # 3). The best teachers have great passion for the skills they teach and are also able to instill that passion in their students.
- Yet for students, it's still going to take lots of hard work and persistence. Tom Sachs tells us that after surfing for 26 years and more than 1,000 hours, for him the sport is still a "small amount of joy surrounded by misery" (lesson # 6).
- "Compare and despair." Holding yourself to an expert standard when you're still a novice only leads to despair and undermines confidence. "Comparing yourself to others will not help you learn and will not help you grow." Instead, compare your present self to your former self and appreciate the progress you've made.
- "We all get spooked when we leave our comfort zone [i.e., wipe out] but when we do the things that we're afraid to do, even if we fail, we get better, stronger and braver" (lesson # 7).
- Getting hurt is a sacrifice made for competence. "Pain is the manifestation of learning" (lesson # 9).
- Persistence. "There is a reality to learning, you must put in the hours" (lesson # 10).
One of the things I find especially helpful about these pedagogical examples taken from the sporting world is that they give fresh insight into the challenges students face in acquiring new skills since we see the physical manifestations of those struggles. Pain, injuries, setbacks, fear, and loss of confidence are all made manifest in a way we don't always see as law professors teaching students who are grappling with ideas and intellectual challenges rather than physical ones.
Anyway, enjoy the film . . . I think it offers worthwhile insight into the struggles of the adult learner.
Monday, March 23, 2020
How to Teach Lawyers, Judges, and Law Students Critical Thinking: Chapter Two: Understanding Critical Thinking
I have decided to post one more chapter from my new book on SSRN.
This is the central chapter in my book, How to Teach Lawyers, Judges, and Law Students Critical Thinking: Millions Saw the Apple Fall, but Newton asked Why (2020). It introduces critical thinking, and sets up the other key chapters in my book: Chapter 4. Teaching Critical Thinking in Law School, Chapter 5. Critical Thinking and the Socratic Method as a Teaching`Technique in Legal Education, and Chapter 8. Judges and Critical Thinking. Because it is an introductory chapter on critical reasoning, the reader does not need any legal background to understand it.
Sunday, March 22, 2020
ABA Commission on the Future of Legal Education, Principles For Legal Education and Licensure in the 21st Century: Principles and Commentary: Part IV, Wrap Up
The Committee Report is a well-thought out document, which will serve as a roadmap for much needed legal education reform. Although it is not as detailed as the "Carnegie Report" or "Best Practices," I believe it is just as important.
It is vital that deans and law professors carefully read the Report and adopt its recomedations as quickly as possible. It has been over ten years since the "Carnegie Report" and "Best Practices," and many of the changes suggested in those studies have not been adopted by many law schools. I urge the members of this Committee to promulgate their Report far and wide and contact every law dean.
The Committee itself summarized where we need to go:
"There is positive change already underway; passionate innovators in every sector of legal education and licensure strive for progress every day. To build on that work, we need systemic change—and we need it now. The Principles articulated here point the way toward doing that. We can modernize our system of legal education and licensure to better prepare the next generation of legal professionals, serve existing and future client needs, and improve access to justice. But we must first believe that we can succeed."
"The Commission believes that systemic change is possible. The Foundational and Operational Principles provide a platform for structured change. Individuals and institutions can use these Principles to assess current practices and fashion new ones. The Principles likewise support collaboration among institutions."
They concluded: "Although continued study is critical, we must move forward purposefully with aligned, transparent, and meaningful change. It is past time to shift collectively from study into action."
In other words, the future of legal education is now.
Friday, March 20, 2020
ABA Commission on the Future of Legal Education, Principles For Legal Education and Licensure in the 21st Century: Principles and Commentary: Part III
In Part I of my discussion of the Committee Report, I examined the portion of the Report on the eight systematic obstacles to reforming legal education. In Part II, I commented on the Foundational Principles and Operational Principles portions of the Report. In this post, I will discuss some of the Recommendations of the Report.
1. Legal Education models:
A. ANTICIPATE THE FUTURE.
Comments: As I have stated in my previous posts, law schools have done a poor jump of dealing with developments in the legal profession.
B. IMPROVE THE JD. "Minimal formative feed-back may dampen learning and undermine inclusiveness. Embracing a variety of pedagogies across the curriculum, rather than relying so heavily on teaching from appellate cases, could enhance development of diverse skills. Increasing team-based work and grading, similarly, could better prepare students for the workplace. Other concerns may justify some current practices, but law schools must assess all practices in light of the Principles."
Comment: I have written a lot about this issue in the previous Parts. The key point is that we must do this now; law schools has delayed reform much too long.
C. EXPAND ALTERNATIVES TO THE JD. "Regulatory and bar exam changes would further create the incentives–and in some cases the freedom–for law schools to respond to market reality with new degree programs, pedagogies, and funding models. Legal educators and the profession must embrace the reality that preparation for law practice does not always require seven years of post-secondary education. Shorter, more focused educational tracks are appropriate for some of the varied roles in the legal service delivery ecosystem."
Comment: The only way that we can expand legal services to the poor and the middle class is to change the structure of the legal system.
D. PRIORITIZE EVIDENCE-BASED CHANGE. "In support of this movement for systemic change, we must transform the collection and use of data critical to the study of legal education and licensure with a focus on objective outcomes. This will require a fundamental change in collaboration across all of our institutions."
Comment: I have been saying this since almost my first day on the Blog. (Just ask Jim.) There is a ton of scholarship on how to better educate adult students and improve higher education. We don't need to reinvent the wheel.
E. RE-ENVISION ADMISSIONS.
Comment: This is also a very important consideration.
F. RE-ENVISION FUNDING MODELS FOR LEGAL EDUCATION. "We must find new funding models for legal education. The predominant funding model, as for much of higher education in general, is not sustainable. Tuition dependent institutions are in fact largely funded by student debt. This fact has grave implications both for access to a legal education and for access to legal services. Without finding new funding models, many law schools will increasingly face an existential crisis."
Comment: A vital concern.
2. Law School Accreditation.
A. RE-THINK ACCREDITATION STANDARDS.
Comment: The ABA has handled accreditation in a piecemeal fashion. It is time for a complete overall of the rules.
B. ADDRESS LAW SCHOOL RANKINGS.
Comment: The U.S. News law school rankings have been the most pernicious influence on law schools over the last twenty years. Let's let this year's rankings be the last one!
3. Licensure. IMPLEMENT TARGETED LICENSURE
4. The Bar Exam.
Comment: As I have stated in earlier parts, the bar exam needs to be reformed.
5. Access to Justice. ARTICULATE LEGAL EDUCATION & LICENSURE’S ROLE IN ACCESS TO JUSTICE.
I will wrap up my discussion of the Committee Report in my next post.
ABA Commission on the Future of Legal Education, Principles For Legal Education and Licensure in the 21st Century: Principles and Commentary: Part II
In Part II on the the ABA Commission on the Future of Legal Education: For Legal Education and Licensure in the 21st Century: Principles and Commentary, I will discuss the Foundational Principles and Operational Principles portions of the Report.
STEWARDSHIP: We are guardians of the legal system within our democracy and accordingly work to defend liberty, pursue justice, and maintain the rule of law for future generations.
INQUIRY: We promote critical inquiry and scholarship about law and legal institutions.
ACCESS: We are committed to developing a legal system that provides affordable and effective legal assistance, guidance, and protection to all.
SERVICE: We are a service profession and endeavor continually to better serve our clients, our institutions, and society as a whole.
INCLUSIVITY: We are committed to developing an inclusive profession that values diverse backgrounds, viewpoints, and roles.
ADAPTABILITY: We strive to ensure that our legal institutions and service models anticipate and reflect our rapidly evolving and technology-enabled world.
Comment: This is an excellent list. I should add that these are both foundational principles and ethical duties. Law professors (and lawyers) are privileged professionals, and have an ethical duty to the public for providing them with this privilege. Law professors should devote themselves to all of the above, especially their duty to educate the next generation of lawyers. As part of this ethical duty, all law professors should work for legal education reform. It has been over twelve years since "The Carnegie Report" and "Best Practices;" reform cannot be delayed any longer!
1. VALUE FOCUS: The costs of legal education and licensure should be designed to advance the quality and availability of legal services. Today, these costs do the opposite–they act as a barrier. We should address the cost of both becoming and hiring a legal professional.
Comment: This is an operational principle that law schools have neglected for far too long. We have discussed the high cost of legal education for over ten years, and we have done nothing about it. Law school costs too much. Many potential students can't afford it, and others graduate with crushing debts. We must lower tuition costs now, and the only way to do this is through hard choices.
2. ONE SIZE DOES NOT FIT ALL. Law schools should be able to follow distinct missions serving their students and communities, while reflecting the variation of roles needed for the widespread provision of legal services. Our service delivery models and our system of licensure should also reflect this variation of roles.
Comment: I discussed this one a lot in Part I. In sum, The ABA needs to adopt rules that law schools experiment and specialize.
3. PROBLEM SOLVING FOCUS: Every legal problem is embedded within a larger context. Legal professionals should develop exceptional problem-solving, legal-reasoning, and communication skills for a multi-disciplinary, team-oriented world.
Comment: This is the biggie for me. Law professors need to use much more problem-solving in their teaching. This starts on the micro-level, by teaching students the cognitive basics of legal reasoning, analysis, and application. (see here) Law schools then need to apply these micro-level skills on a higher level in complex problem-solving exercises, writing assignments, oral arguments, trial practice, drafting, and other skills training. This is what lawyers do.
4. 21ST CENTURY COMPETENCIES. We should collaborate across and beyond the legal profession to identify the competencies needed in the rapidly evolving legal services landscape. Law schools and employers should work together to ensure these competencies are being developed. Licensure should certify entry-level proficiency in the competencies required for these roles.
Comment: Law schools have been behind the times for too long. It is time to leave the nineteenth century and start preparing students for the twenty-first.
5. LEVERAGING TECHNOLOGY. Technology continues to drive change at an accelerating pace, affecting how—and even whether—legal professionals are needed for tasks traditionally considered exclusive to lawyers. Legal professionals should be able to identify where technology can or potentially could improve service and access.
Comment: I discussed this one a lot in Part I. Lawyers must be technologically competent to practice law in tyhe twenty-first century.
6. VALID MEASURES. Legal educators, licensing authorities, testing organizations, and employers should develop fair, valid, and reliable measures to assess progression and competence.
Comment: The bar exam and most law school exams do not test students on what lawyers actually do. Legal education researchers have developed many reliable means of testing adult students. Law schools and the bar need to look to these models.
7. MOBILITY, Our system of legal education and licensure should eliminate unnecessary barriers to living and working in our globalized, interconnected, and mobile world.
Comment: I don't have anything to add to this one.
8. WELL-BEING. We should address, improve, and support the well-being of current and aspiring legal professionals. Well-being promotes the strength of the rule of law and our legal system, and the quality of service to clients.
Comment: Law schools have long neglected wellness and professional identity. Not only do we need to make sure that our students are well-educated, we need to make sure that they are mentally healthy. Similarly, we must develop our students professional identities, rather than just teaching them the ethical rules. (see here)
In sum, I find the Committee's foundational and operational principles to be excellent. Legal education would be vastly improved, and ready for the third decade of the twenty-first century, if these principles were implemented on a detailed level. I will discuss some more of the Report's details in my next post.
ABA Commission on the Future of Legal Education, Principles For Legal Education and Licensure in the 21st Century: Principles and Commentary: Part I
As I mentioned last night, the ABA Commission on the Future of Legal Education has issued a new report on legal education: Principles For Legal Education and Licensure in the 21st Century: Principles and Commentary. I have now had the chance to review this Report, and I think it is a well-written, thorough study with many important suggestions for reforming legal education.
Today, I will discuss the Report's eight systematic obstacles to reforming legal education. As we have said countless times on this blog, legal education is entrenched in out-dated methods, being very reluctant to change.
1. ENTRENCHED SERVICE DELIVERY MODELS. The profession holds onto its closed system of traditional, and expensive, service delivery models, to which the exclusive path to entry is provided by our current, and expensive, education and licensure system.
Comment: Legal education and the legal profession often cling to models that date back to the nineteenth century. Just consider the continuing use of the Socratic/case method as the major teaching tool in legal education. As I mentioned in my book, How to Teach Lawyers, Judges, and Law Students Critical Thinking: Millions Saw the Apple Fall, but Newton asked Why (2020), law schools need to reform the delivery of legal education by using critical thinking in connection with the use of the Socratic method and by adding other teaching approaches, such as using the problem method, teaching metacognitive skills, and employing frequent formative assessment with detailed feedback.
Similarly, other aspects of the legal profession need to be changed. There needs to be more avenues to practicing law, such as allowing limited licensure in routine areas, such as writing wills, uncontested divorces, and landlord-tenant disputes.
2. ONE SIZE FITS ALL EDUCATION MODEL. Law schools use a relatively invariant model that remains wedded to 20th-century curriculum and pedagogy, while shortchanging development of the competencies needed today and in the future. We encourage students to focus on historical rites of passage, and frequently to be resistant to change. We do not do enough consistently to teach them to learn how to learn for a long career in a rapidly transforming world.
Comment: Law school has been a one size fits all model since the nineteenth century, and it has worked very well--until about the last fifty years. In the contemporary world, lawyers need to be highly-educated specialists. One idea is that some law schools offer true specialties. Law schools lack the resources to offer more than one or two true specialties. For example, a law school could specialize in business law, where everything would focus on preparing lawyers for helping business clients. Other law schools could specialize in law and technology, while other law schools could specialize in criminal law.
I also think it is a good idea to have some undergraduate requirements for entry into law school with law schools mostly setting their own requirements. The requirements for all specialties should include minimal competence in writing and technology. Then, law school could add requirements in their specialties. For instance, a school specializing in business law could require a minimum number of undergraduate courses in business.
Finally, as I stated under no. 1, law schools need to modify how they teach the law. In particular, they should concentrate in the first year on developing their students' cognitive reasoning, analytic, and application skills. Once students have the basic cognitive skills, they can use those skills with any legal task.
3. COUNTERPRODUCTIVE EDUCATION STANDARDS. We regulate law schools in ways that are myopic, outdated, and excessively one-size-fits-all. Ordinally ranking the multitude of law schools exacerbates those characteristics. All of this affects how schools prioritize their resources. It diverts their focus from anticipating the effects of technology, globalization, and mobility; experimenting with new educational models; and adapting to changing professional requirements. It also encourages incrementalism.
Comment: The U.S. News law school rankings have been a major impediment to legal education reform for many years because it forces law schools to adopt the one size fits all model discussed above. Why should a commercial publication dictate what law schools emphasize?
4. EXCLUSIVE USE OF A GENERAL LICENSE MODEL. Our profession currently both over- and under-regulates. On the one hand, too many services unnecessarily require a general law license that necessitates seven years of post-secondary education and subsequent completion of an expensive licensing process. On the other hand, certification is not required for many critical and complex specializations.
Comment: I discussed this under no. 1 above. In addition, I agree with the last sentence.
5. FEAR OF TECHNOLOGY. Technology is all too often viewed as a danger rather than as a force to enable transformative change. It offers tremendous opportunities to enhance service and efficiency, broaden client bases, and improve access to those in need of legal services.
Comments: I have also discussed technology above. Technology has become an essential part of legal practice, and law schools need to find a way to deal with it. As I mentioned above, law schools could require some technology training before entering law school.
6. OUTDATED BAR EXAM. The bar exam tests both too much and too little. On the subjects it tests, success depends on extensive and granular rule memorization and application. At the same time, it fails to test key skills central to the practice of law. Given its gatekeeper role and influence on legal education, it thus discourages curricular innovation and inhibits the imagination of what a legal professional will be in the 21st century.
Comment: We have discussed the problems with the current bar many times on this blog. Simply stated, it does not test what lawyers do in practice. It mainly test what lawyers learned at Harvard Law School 100 years ago.
7. MISGUIDED APPROACH TO DISRUPTION. Our profession’s approach to disruption is both under- and over-inclusive. On the one hand, we act as if the question is about what is happening to lawyers, while not understanding the broader context, the blurring of boundaries, and the impact on clients and society. On the other hand, we act as if everything must change, rather than exploring how we can strategically manage for both stability and change.
Comment: No doubt, law schools are resistant to change. They need a strategic kick in a certain part of their anatomy.
However, change for change's sake is not the solution. There is a large body of general education reform research out there. Law professors and administrators should be reading it.
Here is one example of harmful reform: using learning styles in teaching. Researchers disproved learning style theory over ten years ago, but some law professors still use it in their teaching. This practice actually harms students! (here)
8. DEEP-ROOTED ADHERENCE TO THE STATUS QUO. In our closed competitive system, entrenched institutional governance and culture are common across educators, regulators, and the profession. The system prioritizes preserving the status quo, rather than taking bold collective risks to meet the challenge of a transforming world. This inclination to minimize change further stymies efforts to improve inclusivity.
Comment: This relates to the other seven obstacles above. In fact, I would say that this is the number one obstacle to law school reform.
In sum, the ABA Committee Report has done a very good job of recognizing the obstacles to law school reform. In my next post, I will discuss some of the Report's ideas for improvement.
Wednesday, March 18, 2020
PRINCIPLES FOR LEGAL EDUCATION AND LICENSURE IN THE 21st CENTURY: Principles and Commentary by American Bar Association Commission on the Future of Legal Education
The American Bar Association Commission on the Future of Legal Education yesterday released "PRINCIPLES FOR LEGAL EDUCATION AND LICENSURE IN THE 21st CENTURY: Principles and Commentary."
"The 13-page commentary contained a set of principles, as well as recommendations aimed at aligning legal education and licensure more closely to better address the public’s legal needs." (ABA Journal)
I will have more comments on the report over the next few days.
Tuesday, March 17, 2020
Begun less than three weeks ago by the blogger consortium LexBlog, this newly launched specialty law blog is called the Coronavirus Legal Daily and is a great one-stop source that provides multiple daily updates on the numerous issues pertaining to the intersection of the coronavirus pandemic and the law. Updates cover a plethora of topics ranging from pending legislative (local and national) responses, to landlord-tenant issues, employment and labor issues, Force Majeure Rights, court updates and policy changes, law firm marketing strategies in light of the pandemic, and numerous other issues. It's a great feed for just about every legal and law practice issue being raised as a result of COVID-19 that draws from an extensive network of legal, business, political, and healthcare related blogs (both nationally and internationally). You can subscribe to CLD's daily feed here.
Hat tip to Robert Ambrogi's LawSites blog.
Sunday, March 15, 2020
Thursday, March 12, 2020
Include Nova Southeastern University College of Law among the law schools cancelling face-to-face classes due to the coronavirus
The administrators at my own school, Nova Southeastern University College of Law, made the call late on Thursday evening to suspend all classes - both face-to-face and online - until next Friday, March 20 at which point all face-to-face class meetings will be permanently suspended until at least April 17 (which is the end of our semester) and instead we'll move forward with online classes only. The faculty started training this week in the use of the online platform Zoom so we can all be ready to move our classes online beginning on Monday, March 23. For those keeping track of how each school is responding, here's my university's webpage that describes the steps we're taking in response to the coronavirus.
To be clear, there have been no reported cases of coronavirus on campus though the local news is reporting four (4) cases in Broward County as of tonight, March 12 (which should not be unexpected given Ft. Lauderdale has a very large cruise ship port with lots of intra- and international passenger traffic moving through the area each day). Instead, Nova is doing this as a prophylactic measure.
According to the TaxProf Blog, there are now more than 100 law schools (including my own) that have moved classes online in response to the coronavirus.
Tuesday, March 10, 2020
U.S. Ski Team racer Mikaela Shiffrin has been called the world's most dominant athlete today and is on track to become the winniest ski racer in history. When it comes to her remarkable skiing ability, she's also been called a "stark example of nurture over nature, of work over talent . . . ." More specifically, her success as a ski racer is attributed to the work ethic instilled by her parents at a young age that also emphasized technique rather than race results. Her parents also taught her, first and foremost, to love skiing itself and have fun whenever she was on the snow. They further encouraged her to become a well-rounded athlete by engaging in a diversity of sporting activities like tennis, soccer, wind-surfing, and riding a unicycle.
Just a couple of weeks ago, her dad Jeff Shiffrin, who was Mikaela's sometime World Cup tour companion and coach, died suddenly and tragically from an undisclosed head injury back home in Vail, Colorado. In a tribute piece published in the New York Times, the reporter mentioned another training technique Mikaela's parents employed that ran contrary to conventional wisdom but focused on skill development rather than race results. Jeff Shiffrin had an epiphany one day that rather than have Mikaela attend as many races as possible in order to rack up a bunch of trophies, they'd pass-up a lot of races so Mikaela could spend more time at her home mountain practicing her technique. Jeff Shiffrin figured out that all the time they'd spend driving from one mountain to the next and then waiting around all day for Mikaela to race one or two runs would be better spent close to home skiing all day. So the Shiffrin "secret formula" for becoming a better ski racer was to race less but ski more.
I shared this story with my legal writing students today to make the point that there's no secret or special technique to becoming a better legal writer. Instead, it's all about hard work and practice, practice, practice, and then even more practice. That if they follow the Mikaela Shiffrin approach by working on their technique rather than worrying about their grades, the results they are seeking will surely follow.
Sunday, March 8, 2020
I'm very sorry to report that the Law Librarians Blog, founded by Joe Hodnicki and Mark Giangrande has gone dark as of January 8, 2020 (I only learned of that myself last week). The final post, a melancholic "Goodbye World," is here.
You may not be aware but Joe was one of the early innovators of academic legal blogging and had been at it since 2005 when he called it quits in January. My understanding is that he was co-founder of the Law Prof Blog network along with Professor and Dean Paul Caron (he's still listed as a co-founder here - if you scroll to the bottom of the blog roll) though Dean Caron eventually bought Joe out. Joe then went on to found the Law Librarians Blog on the Wordpress platform (the Law Prof Blog network uses the typepad.com platform). When Joe was part of the Law Prof Blog network, his blog was called the "Law Librarian [no "s"] Blog." Presumably someday, someone is going to write the history of academic legal blogging and will need to know this stuff.
On a personal level, I'm very sorry to see Joe go. Though I don't know his reason(s) for shutting down the blog (and we haven't been in touch as much as in the old days), keeping a blog going for 15 years would wear the best of us down and Joe outlasted by far most legal bloggers who tend to give up after a few years. Joe was also the guy who encouraged me to start this blog so I want to publicly thank him for that and for supporting me through the years.
Happy trails, Joe. I hope life is treating you well. The legal blogosphere bids adieu to one of its pioneers and innovators.
Thursday, March 5, 2020
Thanks to all the authors, the editorial board, and Thomson Reuters for underwriting this publication for close to 30 years. If you're not yet a subscriber, you can sign up to be one here.
And here's the table of contents for the new issue (along with links):
By Professor Sara F. Cates (Quinnipiac)
By Professor Taryn Marks (Stanford)
By Professors Amy B. Levin and Joe Regalia (Loyola (LA) & UNLV)
By Professor Heather Baxter (Nova)
By Assistant Director of Academic Support Charles R. Splawn (Elon)
By Professor Cecilia A. Silver (Brooklyn)
By Professor Margaret Hannon (Michigan)
By Professor Kimberly Y.W. Holst (Arizona State)
In the post below, I wrote that Senator Schumer's "apology" missed the point because he was still trying to exert political pressure on the Court.
Most liberal commentators, especially ones who had attended law school, got the point. (e.g., here, here) For example, Professor Tribe tweeted "This is exactly right, and it’s not enough that Schumer didn’t and wouldn’t “intend” to threaten the two justices he named. The road to hell is paved with the best intentions."
However, Above the Law missed the point despite the fact that its editors went to top law schools. (here) Joe Patrice wrote, "Buddy comedy duo Trump and Roberts got backup from even liberal legal observers who aired their concern that the Supreme Court isn’t being afforded the hushed, unquestioning respect befitting the mythology the profession has built around the body and calling for an apology." He continued, "But most troublingly, it seems a lot of otherwise level-headed people were less offended by the vaguely violent rhetoric than the idea that Schumer spoke of the justices as the nakedly political actors they are. That he cut through all the pomp and circumstance and pointed to two guys who plopped into their seats through a breakdown of governmental order — one through a seat held up by flagrant disregard of constitutional norms, the other forced through in a mockery of a vetting process while witnesses were just sitting there. Two guys who have demonstrated that legal precedent is a trifling inconvenience in their bid to implement a conservative political agenda as though they… were just Republican legislators in robes."
Patrice's article exhibits the cognitive bias of seeing every thing through politically-tinted glasses (motivated reasoning). He agrees with everything that supports his liberal views (confirmation bias), and automatically rejects everything that supports conservative views (semmelweis effect), despite the merits of the argument.
I have recently been watching lectures on rationality by Steven Pinker. (here) (see also Chapter 21 of Pinker's book, Enlightenment Now) In his lectures, he discusses opinion studies whose outcome depends almost entirely on the responders' political leanings. Liberals support studies that support liberal positions, while conservatives reject them. If you change the identical study to make it look it supports their position most conservatives will now support the study while most liberals will reject it. In other words, many peoples' positions are based on politics, not facts. In his book, Pinker notes, "the legal scholar Dan Kahan has argued that certain beliefs become symbols of cultural allegiance. People affirm or deny these beliefs to express not what they know but who they are." (Pimker at 357) Pinker calls this approach to "thinking" the "Tragedy of the Belief Commons." (at 359)
Some people are able to see the truth, despite their politics. For example, Professor Tribe and other liberals who hold his position on Schumer's statements saw the true point. Hopefully, Mr. Patrice and the other editors at Above the Law will begin to see their cognitive biases, and start to write articles that tell readers something about the law, rather than something about themselves.