Tuesday, November 7, 2017
From Thomson Reuters:
Findings in the study found that women in the legal industry receive first-time promotions 11% less often than men; female lawyers are 29% less likely to win promotion at the first level of partnership than men; and at the equity partner level in law firms, women are 43% more likely to leave the firm than men, a much higher gap that in other industries.
Monday, November 6, 2017
John Grisham Takes on Sleazy Law Schools
Controversies over questionable for-profit law schools are moving from news reports to novels—probably not a good development for legal education.
In his latest novel, The Rooster Bar, John Grisham writes about students at the “Foggy Bottom Law School” who realize that they are being scammed. So they present themselves to the public as lawyers and start practicing law without a license. Complications ensue. Here is a review from USA Today.
Here is a fascinating review by our co-blogger Jim Levy: Reading in the Digital Age: A Review of ‘Words on Screen.’
Have you ever wondered whether the medium or platform affects how much readers engage with the text? "A book review of 'Words on Screen' by Naomi Baron."
"In sum, 'Words on Screen' reveals that reading is a more complex activity than meets the eye. Individual reading strategies, the chosen platform, and the medium all play a role in how much students engage with the underlying ideas reflected in the text. Changing any of these variables can affect the reader’s relationship with the text which ultimately impacts their understanding and retention of the content. For LRW professors, the value of Baron’s book is that it can help us become more aware of the need to train students in a range of reading styles and platforms that they can learn to toggle between depending on the task at hand. For us and our students, being an effective reader in the digital age is about knowing how to pick right tool for each job."
Revisiting The Ninety-Five Theses: Systemic Reforms of American Legal Education and Licensure by Brent E. Newton: Wrap Up
Over my last four posts, I have been revisiting Brent E. Newton's The Ninety-Five Theses: Systemic Reforms of American Legal Education and Licensure, which appeared five years ago. In this post, I will gauge how much progress law schools have made over the last five years in legal education reform. My conclusion is disappointing. I would estimate that at most law schools have accomplished 25% of what professor Newton proposed.
Law schools with the help of the ABA have made great improvements in certain areas. Law schools have made great strides with transparency. Now, law students have a good picture about employment outcomes at law schools, as well as other factors that go into choosing a law school. The new ABA requirement that law schools must look at outcomes is a momentous change.
There have not been many changes in Newton's first area--"(1) defects in the law school admissions process." Too many students still come to law school unprepared for what law school requires. There are also still many "(2) structural problems resulting from the excessive number of law schools, the ABA accreditation process, the current manner of law school faculty governance, and the current system of ranking law schools." The excessive number of law schools has resulted in schools fighting over potential students, and some law schools dipping much deeper into the applicant pool than they should. This problem has been exacerbated by the still bloated federal loan program. In addition, law school tuition and scholarship distribution remain unfair to those who can afford law school the least. Finally, the law school governance process has contributed to the slow progress in legal education, and U.S. News rankings are still a major factor in making decisions.
Some schools and professors have made important changes in "(3) defects in law schools’ curricula, pedagogical methods, and assessments of students." However, many schools have not, and many professors refuse to change their teaching methods. All professors need to teach their students metacognitive skills, use active learning, do problem-solving exercises, and adopt frequent formative assessments. A few professors doing these is not enough.
Despite the fact that it is obvious legal education improvement requires a new type of professor, "(4) deficiencies in the professoriate at law schools" continue. Of course, many professors who have started as traditional law professors have made themselves into 21st-century professors.
There are still many "(5) problems related to legal scholarship and law reviews." I disagree somewhat with Professor Newton concerning the balance between teaching and scholarship, but I think it is important that teaching and scholarship be equally important for every law professor.
Finally, "6) flaws in the bar exam and licensure process and also in the process of graduates’ transition from law school to the job market" continue. State bars need to develop bar exams that test what lawyers do in practice so that law schools will teach what is done in practice. Teaching to the exam is not bad when the exam tests what you want students to know.
My conclusion is that in the last five years law schools have taken only small steps in reforming legal education. If you consider that much of what Professor Newton advocated was also in the Carnegie Report and Best Practices for Legal Education (both 2007), the results are even more disappointing.
So what can be done. First, law schools should adopt a mission statement based on Newton's statement "Every major decision made by a law school should reflect a genuine fiduciary commitment to their students – with the ultimate goal of producing graduates who will be competent, ethical entry-level attorneys, that is, graduates who are 'practice ready.'” Something like "This law school has made a fiduciary commitment to its students that its ultimate goal is to produce graduates who will be competent, ethical entry-level attorneys, that is, graduates who are 'practice ready.'"
Second, law professors should use texts that incorporate the latest in educational research. There are lots of texts like this out there. You don't have to reinvent the wheel. Third, law should incorporate metacognitive training into their classes. Teach students how to think better and make students self-directed learners. Fourth, professors should use active learning, problem-solving exercises, and formative assessment.
Finally, professors should read about teaching and learning. If you read only one book, I recommend Susan Ambrose et. al., How Learning Works: Seven Research-based Principles for Smart Teaching (Jossey-Bass, 2010).
Sunday, November 5, 2017
According to Jeena Cho at Clio, law schools don’t teach these skills:
- How to listen
- How to manage the unintended consequences of lawyering (addiction, depression, strees)
- How to nurture creativity
- When to use alternative methods to help clients
- How (and why) to hone your conflict management skills
- How to be resilient
- How to run a law practice
- How to manage your personal finances
- How to nurture an internal sense of success and self-worth
For the full discussion, please click here. I think you will find it worth the effort.
Saturday, November 4, 2017
The study from the University of Toronto compared two surveys of lawyers in Canada and the United States. Thousands of attorneys participated, and the data showed a correlation between signs of depression and traditional markers of success. Additionally, lawyers who worked at large law firms were the most likely of the legal population to experience mental health problems.
University researchers said that this study disproves the common idea that career success leads to personal success. They said that the findings highlight a need for change in the industry.
The researchers attribute the prevalence of depression to stress.
You can read more here.
Friday, November 3, 2017
For professionals, dealing with difficult people provides a challenge and exhausts us. From the National Jurist, legal coach John Allison offers this advice:
It is also important to accept the fact that you cannot change the other person. You can only control your response to the person’s behavior. By using one or more of these techniques you can deal with a difficult person without becoming reactive and adversarial:
Remain calm and centered – don’t let the person throw you off balance or put you on the defensive.
Consider the strategy of a martial artist, deflecting the person’s negative energy without becoming reactive.
Draw a clear boundary around abusive behavior. You are not dealing with the person in order to take abuse.
Understand why you find the person difficult to deal with so you can communicate in a way that reduces the risk of triggering the person’s reactivity.
At some point you may need to have a frank discussion with the person about the difficulty you are having dealing with him or her. In that discussion it will be extremely important to avoid criticizing the person or putting the person on the defensive. Instead, stay focused on the person’s difficult behavior and talk about the effect that behavior has on you.
You can read more here.
Revisiting The Ninety-Five Theses: Systemic Reforms of American Legal Education and Licensure by Brent E. Newton: Part IV
I am continuing my revisit of Brent Newton's 95 theses of 2012. (here)
53. The current model for recruiting and hiring law school faculty—the Association of American Law Schools (AALS) “meat market” system and the “job talk” process—fails to focus on the correct skill set for aspiring professors. Most law professors are still hired based on their scholarly potential. I agree with Professor Newton that teaching promise should be equally as important when hiring law professors.
55. Most full-time law professors are preoccupied with writing law review articles, which diverts substantial time and resources from their teaching and service duties. Still true. Law professors should devote an equal amount of attention to teaching. They should probably devote more attention during the school year to teaching.
57. “Teaching excellence” (or failure) is a minor factor in terms of hiring, promotion, and tenure decisions at law schools. Still true. Newton: "Despite giving lip service to 'teaching excellence,' most law schools—when it comes to the important decisions concerning hiring, promotion, and tenure—care relatively little about their professors’ teaching skills (or lack thereof) and, instead, focus disproportionately on academic legal scholarship."
61. The vast majority of full-time faculty members at law schools should have a significant and successful record of practical legal experience before being hired as a full-time law professor. Practical experience is important to developing a fully-rounded law teacher. Some schools are starting to look at practical experience, but most aren't.
65. Law schools are hiring entirely too many law professors with Ph.D.’s. Still true.
67. Ideological biases often cause law schools to hire and promote some faculty members who are undeserving of their positions from the standpoint of merit. This has been frequently charged.
69. Full-time law professors should teach more than three or four courses per year or should at least devote substantial additional time working directly with law students. 71. Interactions between law professors and students outside of the classroom are inadequate. Law students need significant individual attention to fully develop as lawyers.
72. At a majority of law schools, the faculty members who teach the most important courses to prepare students to practice law—experiential professors—are relegated to second- or third-class status among the faculty. Still true.
78. Most legal scholarship today has little, if any, usefulness (other than perhaps to the authors). See Chief Justice Roberts.
81. Professors’ articles are evaluated—for purposes of hiring, promotion, and tenure—based on the “rank” of the law review in which the articles are published as much as on the quality of the scholarship. Very true.
85. The law review experience for most student staff members is an inefficient pedagogical exercise. Very true. There are many other things that law students could spend their time on, like learning to practice.
86. The ABA accreditation authority should remove the scholarly productivity requirement. This is one of the few of Professor Newton's theses I do not agree with. Preserving and creating knowledge is a central role of the academy. We need more emphasis on teaching, but we should not downplay scholarship.
87. If law schools adequately prepared students to enter the legal profession, there would be no need for virtually all graduates to take commercial bar exam preparation courses in order to become licensed. This one is true, and it hurts.
89. The bar exam should meaningfully assess all of the basic competencies required to be a typical entry-level practitioner. A few scholars have advocated this, but the bar exam in most states needs significant reformation.
92. A substantial number of law schools should establish postgraduate clinics for low- and middle-income clients, which would allow recent graduates to hone their legal skills and transition into the job market. Several law schools have done this.
That's it for the theses I wanted to look at in detail. I will have a wrap-up early next week. Comments are welcome.
Thursday, November 2, 2017
You probably have read about alleged academic journals that solicit articles, accept them, and then charge you significant fees for editing, editorial reviews, and publication. The journals have limited prestige, if any, and seem to be little more than money-making schemes for the publishers.
Journals of this nature have yet to invade the legal scholarship world, yet, with the increasing number of interdisciplinary articles in the legal field, some legal academics may fall into a trap.
Professor David H. Kaye runs three blogs devoted to what he finds to be flaky academic enterprises. The often include sad, but entertaining correspondence with the entrepreneurs. The blogs are:
- Forensic Science, Statistics, and the Law Blog
- Flaky Academic Journals Blog
- Flaky Academic Conferences Blog
Wednesday, November 1, 2017
Revisiting The Ninety-Five Theses: Systemic Reforms of American Legal Education and Licensure by Brent E. Newton: Part III
I am continuing my revisit to Brent Newton's 95 theses of 2012. (here)
1. There should be undergraduate “pre-law” prerequisites or some other measure of basic knowledge of law, the legal system, and the legal profession by applicants for entrance into law school. Nope.
2. Prospective law students should be required to work full-time, preferably in the legal field, for at least two years after receiving their undergraduate degree and before entering law school. Nope, although I would have to say that this one is somewhat impractical.
5. There are too many law schools, too many law students, and too many law professors based on our country’s current model of providing legal services. A few law schools have recently closed. Some would argue that there are still too many law schools admitting too many students. However, it is also true that segments of the population are under-served.
6. The current system of providing federal student loans to law students has financed the bloated system of legal education and allowed law schools to avoid the negative financial consequences caused by the excessive number of graduates. Many law school critics are still making this argument.
7. Law professors and deans should not dominate the ABA accreditation process. Nothing has changed with this one.
8. The ABA’s law school accreditation process should require schools to demonstrate that students are actually mastering the necessary knowledge, skills, and professional values. The ABA has added an outcome assessment requirement to its standards. It remains to be seen how well this one will work, but I am optimistic based on what some law schools have posted on their websites.
14. The U.S. News & World Report ranking system is fundamentally flawed, and its influence on legal education has been malignant. Although the U.S. News rankings have been widely-criticized, they are still the standard by which law schools are judged by students and administrators.
15. Law school tuition is too high and is wrongly allocated primarily to benefit law professors at the expense of law students. Law school tuition remains high.
16. There is an unnecessary culture of stress in law school. This problem remains, although many researchers are studying this problem.
17. Most law schools fail to inform students about the realities of the legal profession and do not help them choose their career paths wisely. For the most part, this remains true. I and others have advocated that law schools include professional identity training so that students can better choose their career paths.
18. The recent trend toward merit-based scholarship programs in most law schools has had significant malign consequences. This was a major problem five years ago, and it remains a major problem today. The law school tuition and scholarship model is very unfair to those who are least able to pay. Of course, a major reason this model has been adopted is because of the U.S. News rankings.
I will continue my revisit in a later post.
A recent survey indicates that they aren’t:
Students want meaningful employment. Nevertheless, many if not most have not recognized the need to make a plan to pursue such employment. Most students have not identified the areas of law that best match their strengths and values. Moreover, most students do not have an intentional plan for exploring roles in the legal profession that would match their strengths, values, and interests. Only a small number of students have a written plan. The authors explore how law schools can help students in seeking their goal by cultivating self-direction and development of a plan to move toward their goal.
What can law schools do?
The article discusses efforts at a number of law schools to implement courses, coaching of students by faculty, and the like as efforts to help students in this regard. The authors see the development of self-directed behavior, or self-regulated behavior, as a component of the development of each law student's professional identity. Recommendations for further action, and further research, are included.
With the job market the way it is, I think students need to be self-directed, but not too intent on pursuing a particular type of job. They first need to get a job and learn the ropes. Then they will have a better idea of what they want professionally and what sorts of jobs are available.
You can access the article here. Benjamin J. Madison III & Larry O. Natt Gantt II, Self-Directedness and Professional Formation: Connecting Two Critical Concepts in Legal Education.
Revisiting The Ninety-Five Theses: Systemic Reforms of American Legal Education and Licensure by Brent E. Newton: Part II
I am continuing my revisit to Brent Newton's 95 theses of 2012. (here) I am still looking at the part on "defects in law schools’ curricula, pedagogical methods, and assessments of students."
28. The typical law school course fails to incorporate active or engaged learning and other proven methods of teaching adult learners. This is also a key thesis because a mountain of studies have demonstrated that active learning is much more effective than passive learning, such as lectures. Law schools have added a great deal of active learning to their offerings, but all law school classes should be predominately active learning.
29. The typical law school curriculum today fails to sufficiently develop “learning for transfer.” “Learning for transfer” is an educational construct that “refers to the extent to which one is able to transfer skills and knowledge from one context to another.” It is essential that students be able take what they have learned in one area, such as property, and apply it to another one, such as wills. The other techniques discussed in the 95 theses, such as active learning and problem-solving, help students develop transfer. I believe that law schools can do much more with this fundamental ability.
30. Externships and clinical (or equivalent) education should be a graduation requirement. Has this been done at your law school?
35. There should be a mandatory law school course on legislation and administrative law. This one should be obvious because all lawyers deal extensively with statutes and administrative law. Still, most law schools do not require these courses.
38. There should be a mandatory law school course, or module, on factual investigation and development. Lawyers don't just deal with the law in a vacuum, they deal with facts. Lawyers need to know how to investigate facts, understand them, and apply the law to the facts. This is done to a certain extent in legal writing courses and other skills courses, but it needs to be done much more.
39. Courses, or modules, on the practical side of running a law practice (as a business) should be common in law schools’ curricula. Many law schools offer these courses, but all law schools should offer courses on how to run a law office.
42. Virtually all law school courses should be professional responsibility courses. I couldn't agree more, although I would phrase it as "all law school courses should help students develop their professional identities." Although there are a few scholars working on this, this third apprenticeship from the Carnegie Report has not received a lot of emphasis over the last ten years. I have written a book that law students can use to help develop their professional identities, Developing Your Professional Identity: Creating Your Inner Lawyer (2015).
43. Virtually all doctrinal courses in law schools should be legal writing courses. I also strongly agree with this one. This one has not happened yet, but it could add significantly to law students' education.
44. Virtually all doctrinal courses in law schools should be experiential or skills courses. I also strongly agree with this one. This one hasn't happened either. It is not that hard to incorporate problem-solving or drafting exercises into a doctrinal course. Students learn the doctrine much better when this is done.
45. Academic freedom should not be used as a justification to give law professors carte blanche to teach courses in the manner that they see fit. I think I better not comment on this one.
46. The typical law school course has an excessive student-teacher ratio, particularly in first-year courses. This one is still true today.
47. The near ubiquitous use of commercial outlines by law students in core courses demonstrates that many students are not being effectively taught the material and are not engaged in class. Just let this one sink in. It is very troubling.
48. The Socratic method should not be the primary pedagogical method used in law school. I believe that law teachers should continue to use the Socratic method, but that they should incorporate other techniques such as problem-solving, formative assessment, and reflection. Of course, many law professors today still overuse the Socratic method.
51. The traditional end-of-semester written exam—as the primary or sole determinate of law students’ grades—is a woefully inadequate assessment tool. I have mentioned the importance of formative assessment several times above. While some professors have started to use it in their classes, the majority don't.
52. In addition to assessments in each course, students’ competencies should be assessed on a global basis and at discrete points in law school. The ABA has now required law schools to measure outcomes. How this will be implemented remains to be seen, but what I have read so far is very encouraging. This may be the most important development in law school reform over the last few years.
This finishes my revisit to Newton's theses on "defects in law schools’ curricula, pedagogical methods, and assessments of students." You can find the ones I did not cover in detail here. I shall cover some of his other theses in later posts.