Legal Skills Prof Blog

The Perfect Opinion by Andrew Jensen Kerr

The Perfect Opinion by Andrew Jensen Kerr.

Abstract

"In this Article I collate favorite judicial opinions to inductively derive an archetype of perfection. The question of which opinions we like the most is decidedly subjective, but it also reveals implied preferences for creative judging that might not register on citation counts or be prioritized when editing casebooks. Importantly, our choice of a favorite reflects something about *us*. So why do judges often select non-authoritative opinions (alternative concurrences, or dissents) or no-citation opinions (that don’t cite to prior case law) when asked of their favorite opinion? We might predict that most judges would select, for example, a Cardozo majority opinion that deftly marshals a wide swath of precedent to justify a remarkable turn in the doctrine.

Instead it seems that at least some judges share a critical perspective that citation is a “mask hiding other considerations” , and regard over-citation with caution. Despite innovative thinking from academics like Frederick Schauer on the nature and use of authority, this topic remains under-theorized. I contribute to this literature by making a novel observation about implicit authority. Judges who rely on first principles reasoning are making both an empirical claim that these principles inform our positive law, and a normative claim that these principles are in fact a better reflection of our law than the “ordinary legal materials” (case law, etc.) we have to work with. This intellectual move requires tacit knowledge and feel, and so it’s not surprising these opinions write so effortlessly. These above-great opinions together limn an archetype of perfection that we can use as an ideal form. Not surprisingly, this theorizing echoes the work of Ronald Dworkin, who built his own normative theory of perfection in the construct of Hercules. None of us can be him. But perhaps one of our own has enjoyed the herculean moment. This Article searches for it."

(Scott Fruehwald)

"Have it your way" - Chicago-Kent College of Law lets 1Ls customize the curriculum including taking a clinical course in the first year

Taking a cue from that 1970's Burger King ad campaign aimed at differentiating the fast-food chain from its competition (you know, "hold the pickles, hold the lettuce . . . special orders don't upset us"), Chicago-Kent has launched an innovative "Your Way" program for 1Ls that lets them substitute an upper level elective - and even a clinical course - for a traditional first year one. Under the "Your Way" program, 1Ls don't get to skip those 1L course altogether but instead defer them until the second year. The program is intended for entering students who come to law school already knowing the area of law they'd like to specialize in. For those students, the "Your Way" program lets them jump right into their preferred speciality including the opportunity to take an  clinical course in the spring semester. Traditionally, law students wait until the third year to dip their toes into clinical waters. 

Here are more details about the "Your Way" program from the Chicago-Kent website (including an explanatory video):

1L Your Way Program

 

The 1L Your Way program, available to full-time J.D. students, is an optional, early-specialization track that introduces flexibility into the first-year curriculum. Students who choose to participate in 1L Your Way defer the required first-year course Legislation to the second year in favor of taking either an approved, upper-division elective course or a unique first-year clinical course.

 

Elective Course Option

The elective course option is designed for first-year students who arrive at law school with defined practice goals, allowing them to begin specializing during their first year of studies rather than after they have satisfied all of their first-year law school requirements, as is traditional.

 

Students who intend to pursue a career in intellectual property law, for instance, may take an IP elective such as Copyright Law, Patent Law, or Trademarks & Unfair Competition during the spring semester of their first year; similarly, students who plan to practice in a corporate law environment may take an elective such as Business Organizations. One objective is to enhance students' marketability for summer employment.

 

A list of approved electives for first-year students is part of the spring-term registration materials each year.

 

First-Year Clinic with Rotation Option

 

The first-year clinic option aims to help students refine their career interests by gaining exposure to diverse areas of law practice. Based on the medical school model, this opportunity allows first-year students to participate along with upper level students as members of one or two clinic sections.  It matches first-year students with one or two faculty practitioners from the C-K Law Group, allowing students to learn applicable skills as they assume various practice roles.

 

Based in Chicago-Kent's in-house law firm, the first-year clinic option is a ground-breaking program among the nation's law schools. The law firm's faculty practitioners participate as both teachers and mentors. Students enrolled in the program become actual members of a clinic section and have the option to sample two different practice areas or stay with one area for the entire semester.

 

Practice areas include criminal defense, employment/civil litigation, entrepreneurial law, family law, health and disability law, and tax and probate law. Students participate in legal and factual research, client interviews, document drafting, discovery review, administrative hearings and negotiations, trial team strategy sessions, court appearances, and motion calls.

 

Approximately 50 students will be eligible to participate in the First-Year Clinic during the spring semester each year.

(jbl).

What Are Some Different Approaches to Teaching Transactional Lawyering Skills? Building Business and Financial Literacy in Law Students by Mary Ann Robinson

What Are Some Different Approaches to Teaching Transactional Lawyering Skills? Building Business and Financial Literacy in Law Students by Mary Ann Robinson.

Abstract

Good transactional lawyers understand the deal, not just the law. This article describes the one-credit Business & Financial Literacy Module developed at Villanova University Charles Widger School of Law to help 1L students get comfortable with the numbers behind the deal. This required course begins with an overview of basic financial literacy concepts, including how to read a financial statement and how to value a business, and culminates with teams of students negotiating a deal and creating term sheets for their clients, all under the guidance and supervision of experienced practitioners. This article describes the substance covered and the structure of the course, outlines the lessons learned about creating such a course (what has worked well and what is less effective), and demonstrates how to apply some of the concepts by reviewing part of the problem used in the course.

(emphasis added)

(Scott Fruehwald)

The new issue of "Perspectives - Teaching Legal Research and Writing" is out now (and here's how to submit an article for the next issue)

Here's the press release from Thomson Reuters announcing the new issue of Perspectives with links to each article. Also, click here for information on how to submit an article for publication in the Fall 2019 issue due out in December.  And go here (and click the "subscribe" button in the lower right of your screen) if you'd like to subscribe to Perspectives.

Finally, let me offer a very big "thank you" to Brooke Bowman and Chris Glon for holding down the editorial board fort while I recover from spine surgery. Without them, the new issue and the one to come would surely be delayed).

Vol. 27 | No. 1 | Spring 2019

To Our Readers: Thank you for your interest in the latest edition of Perspectives. These are exciting times for Perspectives as our new Editorial Board has made some big changes that will make this publication better and stronger going forward. But first, let’s talk about the articles you’ll find in this issue. It leads off with an article by two doctrinal colleagues who offer advice about co-authoring articles with students and the lessons they’ve learned that can help improve student writing generally. We’re excited whenever we get a chance to publish authors outside of our traditional readership so if you’re a doctrinal professor, clinician, judge, or practitioner with something to say about the teaching of legal research or writing, please consider submitting an article. In a similar vein, this issue also includes an article describing how to create legal writing workshops for law students based on briefs written by faculty colleagues. There’s also an article addressing how to add realism to the LRW classroom by incorporating legal briefs from real cases. On the legal research front, we have an article describing an innovative exercise that places students in the role of trial advocates arguing over the relevance and reliability of legislative history materials. Looking for relief from the seemingly endless grind of grading student papers? We’ve got that covered too with another practical article discussing “live critiquing.” It’s not just grading papers that consumes so much time, but all those hours spent meeting and advising students. So be sure to check out the article describing how to create an effective peer mentoring program using student TAs. Maybe you’ve spent the last few years in an administrative position or in law practice away from the classroom and now want to get back to teaching. We’ve got an article that addresses that too. Finally, this issue also contains the second half of our winning entries in the micro essay prompt asking readers to address how Artificial Intelligence will change what we teach in the LRW classroom. Regarding the big news at Perspectives, the new Editorial Board just passed the first bylaws in the publication’s history setting term limits for board membership and creating an open application process for the Editorial Board. The changes are meant to give everyone interested in serving on the Editorial Board an opportunity to do so. The new board will also be exploring ways to increase our readership, update our web presence, and make better use of social media to promote Perspectives and our authors to a wider audience. Stay tuned and let us know if you’d like to be involved. Most importantly, the Editorial Board thanks Thomson Reuters for its continued support of the LRW community through this publication. Lastly, this issue of Perspectives is dedicated to the memory of Professor Lou Sirico of Villanova University Charles Widger School of Law, a former Perspectives Editorial Board member, a great teacher, respected scholar, supportive colleague, man of high character, and friend.

IN THIS ISSUE

Running the Race Together: Co-Authoring Legal Scholarship with Students  Richard A. Bales and Stephen F. Befort Co-authoring legal scholarship can be rewarding for both faculty and students. This essay describes the experience of two law faculty members who frequently co-author with students, providing advice and potential pitfalls to avoid. Bringing the Court into the Classroom: Suggestions for How to Craft Exercises for Upper-Level Courses Using Real Practitioners’ Briefs Benjamin Halasz Benjamin S. Halasz suggests techniques for teaching legal writing using real briefs for short writing exercises. Faculty Briefs Patrick Barry Patrick Barry describes a new workshop series designed around an underused resource: the written advocacy of faculty members. Live and Learn: Live Critiquing and Student Learning Patricia Grande Montana This article explores the practice of live critiquing – the process of giving students feedback on their written work “live” or in-person, rather than in writing. It discusses the benefits and drawbacks of the practice and offers ways faculty can experiment with it as an alternative to traditional written feedback. Legislative History on Trial Jamie R. Abrams Jamie Abrams provides a method for introducing students to the benefits and pitfalls of using legislative history through an engaging classroom exercise that puts legislative history on trial. The Need for Peer Mentoring Programs Linked to the Legal Writing Class: An Analysis and Proposed Model  Amy R. Stein Amy R. Stein discusses how integrating a peer mentoring program, run by the teaching assistants, into the legal writing class may increase student performance, satisfaction, and retention, and decrease stress. So You Haven’t Taught Legal Writing in a While . . . . Judith M. Stinson Judy Stinson offers suggestions to help LRW faculty, who may not have taught LRW for a few years, prepare for their return to the classroom. Micro Essays Read some of the most thought-provoking submissions from your colleagues inspired by the prompt “Will Artificial Intelligence (AI) change how or what we teach in LRW classes? What do you anticipate the impact of AL will be on teaching or learning?” Based on the overwhelming response to our query, we published the first half of our winning entries in last fall’s issue, Volume 26, Number 2. In this issue, we present the remaining winners for your consideration.  Sonia Bychkov Green  Jeanne Lamar  Elizabeth De Armond  Drew Simshaw Mark E. Wojcik  Karin Mika Brian N. Larson

(jbl).

Sample of How to Succeed in Law School

Here is a sample from my book, How to Succeed in Law School (2019).

Sample

(Scott Fruehwald)

Kirsten K. Davis, Reading Legal Writing Together: Reading Groups Can Build the Disciplinary Community of Legal Writing Scholars

Kirsten K. Davis, Reading Legal Writing Together: Reading Groups Can Build the Disciplinary Community of Legal Writing Scholars

Abstract

This essay describes how a reading group of scholars can help develop community in a scholarly discipline.

(Scott Fruehwald)

Bringing Legal Tech Into the Law School Classroom with DISCO

The following post is by guest blogger Professor Joe Regalia of the University of Nevada, Las Vegas, William S. Boyd School of Law who we're very pleased to have joining us today. 

Bringing Legal Tech Into the Law School Classroom with DISCO

Technology and innovation are vital parts of the job for lawyers today. It’s impossible to practice law without basic technology skills. And to flourish requires much more: tech-savvy that empowers lawyers to respond to our rapidly changing legal world.

A recent Wolter Kluwer survey found that most lawyers lack key technology skills. That goes for the digital-native millennials, too—who many of us assume can navigate technology with ease. Nearly three out of every four millennials said they have don’t have a "very good understanding of the technologies" that impact their practice. Only one-third of lawyers believe their organization is prepared to keep pace with technology changes.

Why are lawyers so bad with leveraging technology? The survey found that it’s because lawyers don’t have the skills to use it. Simple as that.

So what to do?

Technology and innovation in law school

My law professor colleagues and I think that the solution will come from law schools. Much of the resistance to technology comes from a lack of basic skills and a dose of cultural resistance in the legal field. And law schools are the perfect place to address both.

If technology is baked into the curriculum that law students study—from day one—then they will not only have the skills they need when they graduate, but they will also have the mindset of an innovator. We need to cultivate the mindset to seek out new ways to use technology and a better sense of how to navigate the evolving legal landscape.

With this goal in mind, I put together a pilot project with other like-minded law professors. The goal: Incorporate technology skills training into the first-year curriculum. We hoped that by introducing law students to technology and innovation early and often, we would help graduates finally start to close the technology gap.

But where to start? After some brainstorming, the answer was obvious: ediscovery. Ediscovery is the most developed and integral legal technology out there. Nearly every lawyer must learn how to review and handle digital documents, and technology tools have transformed this process. So this seemed like the best first step.

But then came the hard part. How do you even go about teaching this stuff? The first hurdle was figuring out how to pay for ediscovery software for our students and professors to use. The second was training the professors—many of whom have never even seen ediscovery software in person, much less used it themselves. The third challenge was figuring out how to introduce new law students to this complicated technology, a technology that even lawyers struggle with, and many partners don’t even know how to use.

The pilot group was sensitive to our students’ busy schedules and the huge volume of information they already have to wrangle with in their first year. But we knew these skills were too important to ignore.

We began reaching out to ediscovery companies, including Relativity. But Relativity is expensive and, more importantly, the tool is famously difficult to navigate: Lawyers often rely on a staff of specialists to conduct even basic document review and analysis. Figuring out how to use the various fields and commands can take dozens or hundreds of hours of training. These issues made it impossible to bring Relativity into the law classroom.

Teachable Opportunities with DISCO

Eventually, we found the answer: DISCO, an intuitive but powerful suite of ediscovery tools that is easy to learn and easy to teach. I’ve come to think of DISCO as the Apple of ediscovery—everything about it is simple and straightforward. It’s perfect for new law students (and law professors). No hours of training or special support staff are required. After about a half hour, even fresh-eyed law students can dive in.

Not only is DISCO so easy to use that our pilot group of professors believed we could teach it to new students—but DISCO the company also turned out to be an incredible partner, committed to educating our next generation of lawyers. It agreed to help teach the basics of ediscovery and donated the use of its software and support to our pilot group.

With DISCO’s help, we built out two ediscovery curriculums for first-year coursework.

First, we designed a short, two-hour program that is a completely self-contained ediscovery primer for law professors who wanted to bring technology into their classrooms but lack the time or ability to teach a more robust series of activities. This ediscovery primer introduced law students to the basics of documents: collecting them, processing them, and reviewing them—the most common skills practicing lawyers need. It also included simple demonstrations of ediscovery in action, with the professor working with the class to conduct document searches, tag documents, and walk through simple activities that emulate how an attorney might use ediscovery software in practice.

Our second curriculum was designed for professors to incorporate ediscovery on a larger scale. After the primer on documents and ediscovery, the professors uploaded documents relevant to an in-class writing assignment onto the DISCO platform (which is as easy as dragging and dropping). Several irrelevant documents were also uploaded, as well as privileged samples. The idea was to create a set of documents that simulated what a real document collection might look like.

The students were then given access to the platform and the chance to conduct their own document review. They tagged and collected supporting documents to use in their legal writing assignments. In other words: The students got to experience ediscovery for themselves. They learned about all the ways that DISCO and similar tools can help sift through factual documents, identify privileged documents, and analyze facts to support litigation.

Students and Professors Enthusiastically Embrace Technology

Both programs were a huge success. We’ve had over 200 law students participate in at least one DISCO class. The feedback has been overwhelmingly positive. Law professors—even those who never used ediscovery tools—reported having an easy time demonstrating the platform to students. The law students nearly uniformly loved the introduction to ediscovery technology. Many noted that their peers did not get this exposure and thought it was a big advantage for them heading into the second year (and their first jobs).

At the end of the semester, students reported feeling better equipped for practice and more excited to explore the ways technology can help them succeed. Over 85% even asked for more technology training to be incorporated into their classes generally. Overall, students love DISCO and they love learning technology as part of their law school curriculum.

With the first phase of the pilot a success, the project is expanding and the hope is to encourage even more law professors to incorporate DISCO and other technologies into the classroom. Rather than just introduce technology into a single activity during the semester, we plan to incorporate technology into multiple assignments throughout the year—helping students fully integrate with technology and innovation skills.

(jbl on behalf of jr)

Lighting the Fires of Learning in Law School: Implementing ABA Standard 314 by Incorporating Effective Formative Assessment Techniques Across the Curriculum

Diana R. Donahoe and Julie Ross, Lighting the Fires of Learning in Law School: Implementing ABA Standard 314 by Incorporating Effective Formative Assessment Techniques Across the Curriculum

Abstract

The American Bar Association now requires law schools to incorporate formative assessment into the law school curriculum by providing feedback to students relating to course-specific learning goals before the end-of-semester exam. Peer reviews and self-evaluations are two powerful formative assessment techniques that faculty can use to meet the new ABA standards to assess the students’ learning outcomes while courses are ongoing, creating more effective learning environments within the classroom.

This article argues that peer reviews and self-evaluations can be successfully used across the law school curriculum to deepen student understanding, encourage student cooperation, and develop students’ abilities to be self-regulated learners in law school. We provide background on the power of formative assessment in general as a teaching and learning tool, and then move on to focus specifically on peer reviews and self-evaluations. The nature and essential components of these formative assessment tools in teaching and learning contexts are explained, with a discussion of research supporting their usefulness in enhancing learning across multiple educational contexts and disciplines. We provide examples of how both peer review and self-evaluation exercises have already been used in some courses and make specific suggestions regarding how these tools can be used across the law school curriculum as effective formative assessment tools, serving the goals of ABA Standard 314 without creating an undue burden on faculty even in large classes that rely primarily on a lecture or Socratic dialogue format. Finally, we conclude that incorporating formative assessment across the law school curriculum will benefit teachers and learners alike and suggest ways for law schools to create express incentives for faculty to develop and implement peer review and self-evaluation exercises across the curriculum.

(Scott Fruehwald)

Book Announcement: How to Succeed in Law School (2019)

Last year, I wrote a book that showed law professors how they could help their students succeed. This book turns that book around to show law students how they can use these techniques to succeed in law school

How to Succeed in Law School (2019).

My book differs from other similarly-titled books in that it draws on the latest in education research.  In other words, it doesn't give students superficial advice, rather, it gives them the proven tools they need to succeed in law school.

Abstract:

"This book shows you what works, and, equally importantly, what doesn't work for succeeding in law school. It was written by an expert in legal education, who has taught at law schools for 15 years and who has written six books on legal education. The book begins by helping you develop a growth mindset and self-motivation. Then, it gives you study techniques that will help you learn efficiently and effectively, such as self-testing, interleaving, and spaced studying, as well as study techniques that are a waste of time. It explains how to read a legal text effectively and how to brief cases. It introduces you to the nuts and bolts of law school and gives you context for law school. It also explains wellness, which will help you survive the rigors of law school. Finally, it helps you become a self-regulated learner, which is important for doing well in law school and as a lawyer."

(Scott Fruehwald)

Fostering and Assessing Law Student Teamwork and Team Leadership Skills by Neil W. Hamilton

Here's a new article by one of our favorite legal education scholars:

Fostering and Assessing Law Student Teamwork and Team Leadership Skills by Neil W. Hamilton.

Abstract

Skills of teamwork and team leadership are foundational for many types of law practice, but how much instruction, supervised experience, assessment, and guided reflection on these two skills did each reader as a law student receive? Law schools’ formal curricula, in the author’s experience, historically have not given much attention to the development of these skills. There also has been little legal scholarship on how most effectively to foster law students’ growth toward later stages of teamwork and team leadership. Legal education must do better.

What is the next step for the 58 law schools that have adopted a learning outcome on teamwork or team leadership (plus those that will later adopt this type of outcome)? In Part II, this article outlines the next steps that competency-based education requires for a law school to implement a teamwork and team leadership learning outcome. In Part III, the article presents a stage development model for law student teamwork and team leadership skills. Part IV explains how to use the stage development model in the curriculum so that students can understand the entire range of stages of development of teamwork and team leadership. The students can then self-assess their own current stage of development, and faculty and staff and a student’s team members can use the model to observe and assess a student’s current stage of development and give feedback to help the student grow to the next stage. Reflecting on self-assessment, teamwork experiences, and others’ feedback, a student can create a written professional development plan to grow to the next stage of teamwork and team leadership and get coaching on the plan. The student can also assess the evidence the student has to demonstrate his or her level of development to potential employers.

(Scott Fruehwald)

UConn School of Law develops new course to teach students how to use technology to solve legal problems

The course, called Technology and Law Practice (and taught as a seminar), was introduced this past spring to teach students how to use technology in a hands-on, practical way to solve real-life legal problems. During its inaugural offering, students developed technological solutions to help low income clients of the Connecticut Legal Rights Project as well as the school's own Animal Law Clinic. The online newspaper UConn Today has more details:

New Class Helps Law Students Improve Their Technology Skills

 

Professor Jessica de Perio Wittman, who taught the class this past spring, designed it to be a hands-on, practical experience. Over the course of the semester, one team of four students built an automated interview process for creating advanced health care directives on behalf of the Connecticut Legal Rights Project, which will offer the service to its low-income clients. Another team of three students digitized the files of the Animal Law Clinic and adapted a computerized case management system to track the clinic’s animal abuse cases.

 

The students working on the health care directives faced the challenge of converting a 27-page paper questionnaire into an engaging interactive experience. The group, none of whom had programming experience, used cloud-based software called A2J to devise a one-hour process that generates a print-ready directive on end-of-life medical care.

 

In addition to mastering the software, they also had to ensure that the questions were understandable to people without legal training. “One of our biggest challenges with this was making sure all the questions were at a fifth-grade reading level,” said Ramy Esmail ’20 JD. “Stuff like that you don’t necessarily think of.”

 

Kathy Flaherty, the director of the Connecticut Legal Rights Project, said what the students were able to do was remarkable. “This will serve a need of our clients that we just hadn’t been able to adequately meet, with the size of our staff,” she said.

 

Along with the technology, the students gained valuable practice working as a team. Jonathan Donovan ’20 JD said law school classes are usually very individually focused, and collaboration among students is not generally emphasized.

 

. . . . 

Continue reading here.

(jbl). 

Positive Self-Talk in the Second Person Works Better than in the First Person

Educators have frequently advocated positive self-talk to help build motivation.  Examples: "I can do well on this test."  "I can succeed in law school."  Now, a study of athletes has concluded that second person self-talk works better than first person self-talk.   "You can succeed in law school."

The Telegraph, You can do it! Scientists find urging yourself on in the second person is the key to sporting success

Dr James Hardy, one of the researchers, said: “It is possible that using a non-first person pronoun perspective helps performance because it allows the runner to adapt a thinking process that is more helpful for her/himself.

“That is, it promotes a more distanced perspective enabling the performer to stand back and “observe” what is going on; akin to being in the balcony looking down on the dance floor rather on the dance floor itself.

This in turn promotes clearer thinking, better choices, and enhanced performance.”

(Scott Fruehwald)

 

Forbes column on skills law schools must teach to prepare grads for contemporary practice

Distinguished legal commentator Mark Cohen has addressed his latest column over at Forbes to the skills law schools should be teaching to better prepare grads for the current legal marketplace. Yes, critical thinking and problem solving continue to be vital skills demanded by all legal employers but new grads must also be versed in the following according to Mr. Cohen:  Emotional intelligence, creativity, cognitive flexibility, and the ability to work collaboratively with others. Further, law students should be trained in in project management skills, data analytics, business basics, digital basics, risk management, and talent management. As Mr. Cohen argues, the foregoing are the new foundational skills law students will need for many contemporary legal jobs as well as those yet-to-be-created positions. 

Law Schools' Lost Opportunity

Law schools have ceded an opportunity to shore up their balance sheets and to do right by grads, the legal industry, and the broader society. How? They have failed to transition from three-year degree stopovers to learning centers for life that upskill grads and other professionals throughout their careers. This would have created “stickiness” with alumni/ae throughout their professional lives and transformed law schools into  lifetime learning hubs. In the digital age where competency, micro-credentialing, collaboration, upskilling, people-skills, and agile learning are critical, law schools are relics of the legal guild. Why?

 

There are a legion of explanations: complacency, detachment from the University—notably the business, engineering, computer science, and mathematics schools-- as well as the broader legal ecosystem and business community, faculty composition/hiring criteria, the American Bar Association’s ineffective law school accreditation oversight, and absence of accountability and performance metrics—especially student outcomes, and self-regulation. Law schools are an island that has become increasingly detached from the broader legal mainland.

 

The inertia of law schools, like law firms, went unchallenged for decades. Their applicant pool was plentiful, the job market was robust, the curricula were unchanged and unchallenged, and they were cash positive. That rosy picture fueled the growth and proliferation of law schools from the 1980’s until the global financial crisis of 2008. The confluence of that economic maelstrom and its aftermath coincided with rapid advances in technology, the ever- escalating cost of law school and its three-year hitch, a downturn in the legal job market, and disaggregation of a growing number of “legal” tasks. This resulted in the migration of young talent away from law and into other professional service and business careers.

 

Law School Stasis In An Age of Disruption

 

Law schools have largely failed to engage in material reform during the post-financial crisis decade, especially the top-tier ones. Their inertia has contributed to an ever-widening skills gap in the legal industry, a challenge and opportunity law schools have failed to respond to meaningfully.  Law schools—like firms for whom they have long served as supply sources-- have failed to align with and adapt to a changing marketplace. The ramifications affect the entire legal ecosystem and beyond.

 

Law schools continue to prepare grads to “think like a lawyer” even as the function, role, skillsets, workplace, and career paths of lawyers are changing dramatically. Law schools still rely on firms to provide practice experience even as clients decline to subsidize on-the-job training of young lawyers. They are preparing grads for practice careers in a market where the practice of law is shrinking and the business of delivering legal services is expanding. Their pedagogy remains rooted in legal doctrine when law is now a three-legged stool supported by legal, business, and technology. They teach the rudiments of legal expertise when that alone will no longer cut it for most lawyers. They perpetuate a mindset and culture of “lawyers and ‘non-lawyers’” when law is now about legal professionals, only some of whom are licensed attorneys.

 

The New Tools for Success

 

Competency, not diplomas, dictates marketplace success in the digital age. Diplomas still matter, of course, and so does the granting institution’s brand. But exposure to a new suite of augmented skill sets is what really matters, especially after one’s first gig. The core skills required of legal professionals—apart from baseline legal knowledge—are common among other industries in the digital age, a time when traditional boundaries separating professions/industries are increasingly blurred.

 

The World Economic Forum Future of Jobs Report examines the skills required in the digital age. Critical thinking and problem solving, key elements of traditional legal pedagogy, remain. Other critical workplace skills--notably emotional intelligence (EQ), creativity, cognitive flexibility and collaboration-- are now equally important workplace competencies. These contemporary skills—and others including project/process management, data analytics, design, business basics, digital basics, risk prediction/management, and talent management—are largely ignored by the legal Academy and most executive education programs.  They are also undervalued by legal industry talent managers even as they have become essential to satisfy rapidly changing legal buyer expectations. These skills are foundational elements of new legal positions to be filled now and many more as-yet to be created.

 

. . . . 

Continue reading here.

(jbl).

Dean Gerken’s Vision Versus Malcolm Gladwell’s Experience by Andi Curcio

The Best Practices for Legal Education website has some of the best short articles on legal education.  Its latest piece sets up a debate between Malcom Gladwell and Dean Gerken.

Dean Gerken’s Vision Versus Malcolm Gladwell’s Experience by Andi Curcio.

Excerpts:

“When we decide who is smart enough to be a lawyer, we use a stopwatch.” Malcolm Gladwell

“Law school should be a time to luxuriate in ideas, to test their principles, and to think critically about the law and the profession.”  Dean Heather Gerken

"On the same day I listened to Malcolm Gladwell’s fascinating podcast about the LSAT and test-taking speed, I also read Yale Dean Heather Gerken’s insightful Commentary, “Resisting the Theory/Practice Divide: Why the “Theory School” Is Ambitious About Practice.” Both are wonderful.  Together, they shine light on a dialectic tension within legal education." 

You can read the article for yourself, but I think Dean Gerkin has the best position:

"Dean Gerken’s article inspires us to think about legal education in its biggest and broadest sense. She posits that, “At its best, a J.D. is a thinking degree, a problem-solving degree, a leadership degree” and she notes that for students, “law school should be a time to luxuriate in ideas, to test their principles, and to think critically about the law and the profession.”

She envisions law school as a place where students engage in deep critical thinking about the law and the profession – both in the classroom and in clinics, and she discusses the interdependent relationship between the deep learning that should occur in both."

[SF] This reminds me of something I said in a book I am working on: "I did not hear the word reflect once when I was in law school, and I doubt it is much better today."  Gerkin is right that students need time to sit back and think about the law.  It will make them much better lawyers and deeper thinkers.

(Scott Fruehwald)

Innovation: A New Key Discipline for Lawyers and Legal Education by Michele Beardslee DeStefano

Innovation: A New Key Discipline for Lawyers and Legal Education by Michele Beardslee DeStefano.

Abstract

Over the past two years, I have interviewed hundreds of in-house and law firm lawyers from around the globe to explore the changing legal marketplace, expectations of clients, and innovation in law. One of my main conclusions is that we are experiencing an Innovation Tournament in Law and almost everyone is playing in it. As I explain in more detail in my book, Legal Upheaval: A Guide to Creativity, Collaboration, and Innovation in Law, driven by a combination of technology, socio-economics, and globality, we are witnessing innovation on almost every legal dimension, including how legal services are priced, packaged, sourced, and delivered. Importantly, this innovation is not only coming from legal tech startups and new law companies. Law firms, the Big Four, and corporate legal departments are creating innovations of their own including new services, products, tools, and, importantly, new processes. Even those that aren't creating innovations are playing in the Innovation Tournament by utilizing the innovations (or exapting them) to become more efficient and deliver better service. Although we are not yet seeing disruption in the law marketplace in the Clayton Christensen sense, all lawyers should care about the Innovation Tournament regardless and here's why:

Lawyers of all types, from big law to small and mid-size firms, from government to in-house, and even solo lawyers, are being challenged to change the way they work. Clients are asking their lawyers to innovate (and often with others outside their organization or departments). However, lawyers don't know what their clients are asking for when they ask for innovation or how to do it—or both. The good news is, however, that my interviews and my experience working with over 210 teams of lawyers and their clients on innovation journeys, indicate that what clients are really asking for with "the call to innovate" is a new type and level of collaboration and client service. The evidence suggests that our clients' call for us to innovate is actually a call for service transformation in disguise. Whether they want an innovation in and of itself or not, our clients want lawyers to hone the mindset, skillset, and behavior of innovators. The problem with this is that many lawyers are ill-equipped to meet these new demands. Some combination of our temperament, training, and professional identity seems to work against us when we try to espouse the DNA of innovators.This is why the new discipline for practicing and aspiring lawyers needs to be innovation.

This chapter was first published by Stämpfli Verlag in the book: New Suits: Appetite for Disruption in the Legal World, co-curated by me and Dr. Guenther Dobrauz. It begins by demonstrating that clients' call for innovation is really a call for transformation in service from their lawyers. It then explores why answering this call can be problematic for lawyers. It seeks to show that lawyers' professional identity, training, and temperament (along with extrinsic and intrinsic motivation) make it difficult for lawyers to adopt the collaborative, creative mindset and skillset of innovators. This chapter recommends that innovation be incorporated as a new key discipline at both the law school and executive education (continuing education) level because in the process of learning how to innovate, lawyers hone the mindset, skillset, and behaviors that clients desire. In support of this contention, it reveals that, as an added benefit, by honing the innovator's DNA, lawyers also grow into inclusive leaders our society needs us to be. The chapter concludes with some suggestions for lawyers to help them better collaborate towards innovation along with a pie-in-the-sky call to the legal universe to make innovation the new key discipline for practicing and aspiring lawyers.

(Scott Fruehwald)

Cultivating law student professional Identity through a course in federal Indian law

This is a new article on law student professional identity training by Professor Michalyn Steele (BYU) and available at 2018 BYU L. Rev. 1429. The full title of the article is Cultivating Professional Identity and Resilience Through the Study of Federal Indian Law and can also be found at SSRN here.  From the abstract:

For purposes of this Essay, I consider how the doctrinal courses might contribute to the various professional formation learning outcomes. Specifically, I examine how one doctrinal course, Federal Indian Law, might serve as a representative model for ways of incorporating purposeful learning outcomes to foster the professional identity formation of law students. In Part II of this Essay, I argue that the study of Federal Indian Law presents an important opportunity to teach the principles of personal and professional resilience to law students.

(jbl).

Evolutionary Biology and the Law: Beyond Jurisprudence

I have been arguing for several years that jurisprudence scholars should draw on recent findings in evolutionary biology and the cognitive sciences.  (here, here)  The discoveries in these fields have helped us better understand how the brain works and how morality developed.  Any jurisprudence scholar who ignores these fields does so at the risk of making fundamental errors.

Alan Calnan has written an article that draws on these fields to go Beyond Jurisprudence.

Key paragraphs:

"The answer, it turns out, is everywhere. To comprehend the nature of law, we must grasp the complex natural systems that inform and transform it. For this to occur, jurisprudents first must abandon dualism, embrace holism, and expand their methods of investigation. Instead of choosing between philosophy or science, they must practice consilience."

"Consilience is the integration of knowledge across all academic disciplines. . . .  Just as a leaf cannot be understood apart from the chemical processes of the tree, law cannot be understood apart from the complex systems that brought it into being."

"With consilience's insights, these systemic forces quickly snap into sharp focus. We finally see that law is the culmination of three natural phenomena: complexity, complementarity, and coordination dynamics. . .  law is both permanently grounded in human nature, and constantly adapting to social and cultural progress."

"In fact, law is really just the mirror image of its human creator--a complementary collection of problem-solving systems dynamically coordinating and reconciling their antagonistic tendencies in pursuit of survival and flourishing."

Abstract

"This article takes a new approach to legal theory. Because it views law as part of a complex natural system, it uses complex systems theory as its central investigative framework. Unlike traditional jurisprudence, which separates human artifacts from nature, complexity theory shows that human and natural systems are interdependent. Such systems cannot be studied in isolation, but require consilience. Consilience unites knowledge from the natural sciences, the social sciences, and the humanities. By merging consilience with complexity theory, the article moves beyond jurisprudence toward “jurisilience.”

Jurisilience shows that law is a complex cultural system caused by complex social systems of cooperation. Yet law is not just a social construction. Law’s tree of causality has biological roots. Human social practices derive from complex psychological systems that stimulate empathy and trust. These systems, in turn, emerge from complex neural and genetic systems that propagate man’s selfish and social instincts. According to complexity theory, system pressures operate both within and between man’s developmental tiers, triggering attitudinal and behavioral changes that run not only from individuals up to societies and cultures, but also back down into the human genome. In this way, law is both permanently grounded in human nature and constantly adapting to social and cultural progress.

Like all natural systems, man’s systemic cycles are governed by coordination dynamics. Though human beings seek self-preservation, they possess complementary but conflicting properties that jeopardize their survival. Coordination dynamics reconcile such conflicts. Our biological systems coordinate our bodily functions and psychological drives, while our social and cultural systems coordinate our relationships with other people. As a cultural institution, our legal system stands above society, stabilizing the persistent discord below. But law never loses its human footing. In fact, law is really just the mirror image of its human creator – a complementary collection of problem-solving systems dynamically coordinating and reconciling their antagonistic tendencies in pursuit of survival and flourishing."

I could go on and on quoting gems from the article, but it is time to stop.  You should read the article yourself because it is an important advance in combing science with the law.

(Scott Fruehwald)

The trend in law school mergers

The online ABA Journal has an interesting article on the growing trend in law school mergers over the past few years. Some have been born out of a desire to avoid possible closure in light of falling applications while other mergers are motivated by a more proactive effort on the part of law school administrators to strengthen their brand in a tightening market. 

Urge to merge: Difficult times for law schools have prompted several to attempt to be acquired by other schools

 

Law school enrollment has decreased significantly since the Great Recession, as have many law schools’ reputations. Fewer graduates are passing the bar, and for the past two years, less than 70% of new lawyers were hired for full-time, long-term jobs that require bar passage after graduation—jobs that, at one point, had been the minimum expectation for newly minted JDs.

 

In the past three years, seven law schools announced plans to partner, gift or sell themselves to universities—all but begging the question: Why would anyone want them?

 

The answer comes down to net tuition revenue, which matters more than academic reputation, says Ken Redd, the senior director of research and policy analysis at the National Association of College and University Business Officers.

 

According to him, a private institution with net tuition that grows 3% or more annually is generally seen as desirable.

 

“It’s about trying to make as much money as possible for healthy institutions. If there was some scandal that made the news, you might see some hesitation. But if it’s just something garden variety, like ABA probation, [universities] do not care about that,” Redd says.

 

Also, while there are approximately 235 law schools, there are only 203 accredited by the ABA.

 

“It remains a quality brand,” says Barry Currier, the ABA’s managing director of accreditation and legal education. “Law schools used to be a so-called cash cow for universities. I’m not sure that was really true, but at least they broke even or slightly better. Now law schools are having to be subsidized by their universities, and that makes them less attractive than they might have been.”

 

In some cases, these proposed mergers were actually bailouts designed to rescue failing schools. Not all, however, are failing schools.

 

Approximately two years ago, Florida Coastal School of Law, one of three for-profit law schools operated by the InfiLaw System, announced that it was looking for a nonprofit partner. Around the same time, the law school was given a “zone” rating by the U.S. Department of Education, which means that it was close to not meeting gainful employment standards, and must pass the gainful employment standard in one of the next four years to stay in good standing.

 

In February 2019, the law school filed an application to switch to nonprofit status with the ABA’s Section of Legal Education and Admissions to the Bar. Scott DeVito, the law school’s dean, says that if the plan is executed, the next step would be to become affiliated with a nonprofit university.

 

Only two proposed mergers have been approved so far. A deal between Michigan State University College of Law (an independent entity) and Michigan State University remains pending, while the University of Illinois at Chicago’s acquisition of John Marshall Law School, a stand-alone school, is nearing completion.

. . . . 

Continue reading here.

(jbl).