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Never Let a Crisis Go to Waste: Teaching in Law Schools Today

Here are some brief comments I made today at a UB seminar on Teaching and Learning in the Classroom of the Future:

I’m not at all confident about predicting the future. It’s hard enough just seeing clearly what’s going on around us right now, especially when you’re operating at a high level of generality as we have been doing thus far. So what I’m going to do today is try to report to you on what’s going on in the discipline I’m familiar with: the study and practice of law.
Law schools have been slow to adopt technology. In some ways this is surprising: law was one of the first disciplines to have its corpus of fulltext research sources readily available online. LexisNexis launched in 1973, offering full text of all Ohio and New York cases. By 1980 it included full text collections of all U.S. federal and state cases. Now LexisNexis and WESTLAW, which started a few years after LexisNexis, include virtually all the information sources a lawyer needs to do his or her research, as well as a variety of litigation and law office management tools. So online text resources have been an integral part of both law practice, and the study of law, for over 30 years.
Beyond the use of fulltext research tools, however, law schools seem to have lagged behind our counterparts in undergraduate and K-12 education. In O’Brian Hall, many of our classrooms still have chalkboards, although they now also have computer projectors and Elmo visual presenters, and faculty are increasingly using them.
I think there are a couple of reasons for this. For one, law tends to be a somewhat conservative profession, in the sense that it tends to resist innovation. Law is built on precedent, and I think that years of training and practice in looking to how things have been done previously has to have some influence on how lawyers make choices outside of the classroom. Also, lawyers by nature and by training are pessimists. It’s our job to think of all the ways things can go wrong, and to take precautions against risk. Lawyers are risk-avoiders by nature and by nurture. That’s one of the reasons creative and entrepreneurial types don’t like lawyers: our job is to say “no, you can’t do that, and here’s why.”
In addition, my sense is that law students tend to be less technology-oriented than “digital natives” are generally assumed to be. Professor Gradel noted this morning that the research on learning styles has been at least partially debunked. However, I think some self-selection takes place among students who choose to go to law school. Law probably tends to attract and retain students who are linear thinkers, and who are comfortable with text. Yes, they all have smartphones and laptops and Kindles and iPads, but they are not, unlike Professor Gradel young learners, natural integrators. They seem to tend to compartmentalize, and many of them keep their online activities separate from their student/professional selves.
Moreover, universities—especially research universities—generally do not reward faculty who devote their time and efforts to improving pedagogy. As rankings and scholarly reputation become increasingly important in competing for scarce resources, teaching often takes a back seat.
So law schools tend to be slow to adopt new teaching technologies. Many law professors ban laptops in class, for a variety of reasons: students get distracted and claim they are effective multitaskers; they tend to transcribe rather than listening, thinking, and participating in class; and facing a wall of students hiding behind laptops is disheartening.
I tried banning laptops in my large classes last semester, but I didn’t feel that it made any discernable difference in the quality of classroom discussion, so this semester I went back to permitting them. I use KeyNote, the Mac alternative to PowerPoint, mostly for displaying images or textual headings as a sort of way-finding tool to help students orient to where we are in the class. I also have my classes audio recorded, so students who missed can listen at their own pace and, hopefully, participate more actively in class.
However, some of you may have heard some talk of a crisis in legal education. Fewer students are applying to law schools, and everyone is worried about our graduates finding jobs and paying off their student loans. Law schools are being forced to innovate in order to compete.
There has been some interest in “flipping the classroom.” I’m skeptical about this; the traditional Socratic method, where students read cases outside of class and teachers push them to analyze and respond to questions and hypotheticals in class, already flips the classroom—if students do the work, and if professors demand it of them. I haven’t seen evidence that students are more interested in viewing video lectures than they are in reading course materials.
There have been some experiments with distance and online learning in law schools, but those schools that are interested in online learning are limited by ABA accreditation standards that restrict the use of distance learning to no more than 15 hours toward the 64 credit hours required for graduation
However, there is movement to change the way we do things, much of it coming from outside the university. National and regional accrediting groups increasingly demand measurable assessment of learning. New ABA Law School Accreditation standards require that law schools establish “learning outcomes.”
In the area of technology, change is coming as well. ABA Ethics Rules on Competence (Model Rule 1.1, Comment [8]) require that “[t]o maintain the requisite knowledge and skill, a lawyer should keep abreast of changes in the law and its practice, including the benefits and risks associated with relevant technology.” Just this week I’m talking to my Legal Ethics students about using the Blackboard SafeAssign feature to turn in their weekly assignments; if they have difficulty using an online submission tool, it’s their responsibility to work it out. I’m going to remind them that most courts now require online submission of all documents, and it’s not acceptable for a lawyer to email a brief to the judge and say “I couldn’t get it to work, I hope this is OK.”
So law schools are starting to be more open to innovation in teaching. A thousand flowers are blooming. Of course, many of those “flowers” are pet projects that are brought forth every time there’s an opportunity, and everybody thinks their pet project is the key to the future of legal education. But the upside is that law schools are now less likely to dismiss new ideas, and there is real room for creative change in law schools now and in the future.

Law School Abhors a Vacuum

Nicole Black’s latest piece has useful and important things to say about law practice and the state of legal education.

In recent months, because of a number of professional endeavors, I’ve had the opportunity to engage with members of legal academia along with current law students and recent graduates. My overarching impression of these encounters is that law schools aren’t sufficiently preparing law students for 21st century law practice. This is especially so when it comes to technology. In fact, I would go so far as to say that the vast majority of law schools are educating their students in a technology vacuum.

She taps a rich vein here, but the resistance to teaching technology in law schools goes even deeper than she realizes.

Certainly “many law school deans readily acknowledge the impact of technology on the practice of law and the environment in which their graduates will be practicing,” but most deans have no idea what that means or what the practice of law is like for most lawyers. Deans don’t spend their time socializing with the struggling solo practitioners and small firm lawyers who stand to gain so much from using technology effectively; they socialize with partners in big law firms with deep donor pockets. If those lawyers have any contact with technology at all, it’s because they have large technology departments to do everything for them. Same with deans.

“First, there is a staunch resistance by many tenured faculty members to alter their curriculum. Because they are tenured they are immune from pressure to change with the times and are perfectly content to continue teaching as they always have.” Also, most tenured faculty don’t see that technology has any real relevance to their teaching or the law. A law professor is one who uses Powerpoint in class is seen as technologically sophisticated, and they rarely do so on their own–an alarming number of them rely on assistants or IT staff to make their Powerpoints for them.

To the limited extent there is a general agreement that law schools need to change, most law professors see this as an opportunity to implement the same changes they’ve always wanted. Some faculty argue for more closely aligning legal education with the practice of law, while others just as strongly argue for even further estrangement from practice and closer alignment with the scholarly goals of universities. Just this morning University of Maryland Professor Paula Monopoli wrote about this in The Boston Globe:

And, indeed, modern law schools are hybrids — professional schools whose mission includes professional identity formation and analytical skill-building. But they are also intellectual centers where faculty are tasked with generating knowledge through legal scholarship. Thus, we are neither fish nor fowl to many of our colleagues in other schools on campus. That wasn’t much of a problem when our surpluses represented subsidies to those other schools, but now the power balance has shifted. We’ve got to respond to the new normal by leaving our silos in larger numbers to forge relationships with scholars and administrators outside the law school. To demonstrate our value and to prove that we fit into the core mission of the university, we need to move toward them in ways that we have historically resisted….

[W]e should rethink the training of legal academics. The vast majority of the legal professoriate has the same training and degree as the practicing bar. Nothing more than a JD is required to teach at an American law school. That three-year curriculum doesn’t include any training in traditional academic research skills like empirical methods. While a full-blown PhD may not be necessary, some additional training in standard research tools like statistical analysis would add intellectual rigor.

Like Rahm Emanuel, law schools never want to let a serious crisis go to waste. What we’re seeing in law schools today is a struggle among long-standing rivalries over the way legal education should be designed and whom it should benefit.

 

Good news, bad news

I have very mixed feelings about this.

The fact that the USA Freedom Act has achieved such wide-ranging support may be less an indication of its compromises than of a fundamental shift in American views. In July 2013, following the Snowden revelations, the Pew Research Center reported that for the first time since it started asking the question in 2004, more Americans expressed concern that counter-terrorism measures were infringing their civil liberties than worried that the government was not doing enough to keep them safe.

On one hand, it’s encouraging that there may finally be the political will to rein in government surveillance. On the other hand, it’s sad to think about the degree to which that change in public perception is probably due to the fact that there is a black man in the White House.

NYS Board of Law Examiners to Simplify Character and Fitness Examination

The New York State Board of Law Examiners today announced plans to simplify the Character and Fitness investigation process. “The current process, requiring the bar applicant to submit a significant amount of paperwork, is cumbersome and time-consuming, as well as subjective and prone to error and bias,” the BOLE said in a statement. “It also fails to address the competitive pressures that play such an important part in many ethically problematic situations.”

The new Character and Fitness process will feature a series of practical, objective tests to assess the bar applicant’s ability to make ethical decisions in circumstances of limited information. In the elimination round of the test, pairs of bar applicants will stand on a bridge over a trolley track, while a group of retirement-age law professors attempt to repair the track before the arrival of the oncoming trolley. In the judgment and decision-making round, the bar applicant will be stationed near a train switch. On one fork of the tracks will be a group of recent law school graduates (funded on a temporary basis by their law schools), while a fellow bar applicant with a higher law school GPA will be tied to the other track.

“Our analysis of the data shows that, over time, this process will help to resolve the current market imbalance between the number of law grads and available law jobs,” the statement continued. “The outlook for law school admissions is bright, especially for applicants with quick reflexes and good upper body strength.”

Special Documentary Screening in Buffalo: “Kids for Cash”

The ticket reservation deadline has been extended to 8:00pm Friday, March 21. We have 32 reservations as of 11:00am Thursday, so we need 24 more. Please click on http://gathr.us/screening/7402 now so we can bring this screening to Buffalo.

Kids for Cash
7:00 pm, Wednesday, April 2, 2014
Dipson Amherst Theater
2500 Main Street
Buffalo, NY
Tickets: $10.00
http://gathr.us/screening/7402

To bring this screening to Buffalo on April 2, we have to reserve at least 56 tickets by Monday, March 17 Friday, March 21. Click here (http://gathr.us/screening/7402) to reserve your ticket. Your credit card will not be charged until we meet the minimum of 56 tickets.

KIDS FOR CASH is a riveting look behind the notorious scandal that rocked the nation when it first came to light in 2009. Beginning in the wake of the shootings at Columbine, a small town in Luzerne County, Pennsylvania elected a charismatic judge who was hell-bent on keeping kids in line. Under his reign, over 3,000 children were ripped from their families and imprisoned for years for crimes as petty as creating a fake MySpace page. When one parent dared to question this harsh brand of justice, it was revealed that the judge had received millions of dollars in payments from the privately-owned juvenile detention centers where the kids—most of them only in their early teens—were incarcerated.

Exposing the hidden scandal behind the headlines, KIDS FOR CASH unfolds like a real-life thriller. Charting the previously untold stories of the masterminds at the center of the scandal, the film reveals a shocking American secret told from the perspectives of the villains, the victims and the unsung heroes who helped uncover the scandal. In a major dramatic coup, the film features extensive, exclusive access to the judges behind the scheme. Now serving a 28 year sentence in federal prison, the former juvenile court judge at the heart of the scandal shares his ulterior motives, revealing that his attorneys never knew about his interviews for this film.

  • “A vital, urgent and infuriating look at the devastating failures of the juvenile court system and the insidious reach of prison privatization.” – Inkoo Kang, Los Angeles Times 
  • “After a stage-setting opening passage, director Robert May cuts deeper—past the allegations of wrongdoing, to a more multi-faceted critique of the justice system.” – A.A. Dowd, AV Club
  • “Bring something you can punch, as you will be furious.” – Alan Scherstuhl, Village Voice

 

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