Legal Education

Follow ABA Changes to Legal Education

Written by Hazel Weiser Here’s where I disagree with Professor Tamanaha.  It’s not that SALT has been silent or callous about the rise of student debt.  As Dean Van Cleave so passionately stated in her recent blog, to solve the economic problem the profession faces, we have to answer…

Benjamin G. Davis, Associate Professor of Law, University of Toledo College of Law As I frequently do Sunday’s mornings in Toledo, picked up the Sunday Toledo Blade at the 7/11 (Comenatchi? (Hi!) Paloatchi (Hi back at you!) Gorum! Gorum! (Hot! Hot!) Rodje! (Sunny!) Tanda! (Cool in here!) being the usual…

The New York Times recently declared, “American legal education is in crisis.” One cause, the editorial argued, is legal education’s traditional preference for theory over practice: “In 2007, a report by the Carnegie Foundation for the Advancement of Teaching explained that law schools have contributed heavily to this crisis by giving ‘only casual attention to teaching students how to use legal thinking in the complexity of actual law practice.’” Widely publicized calls to reform legal education have come from Best Practices; its blog; and other blogs, e.g., "Room for Debate – The Case Against Law School."

I just finished reading Moneyball by Michael Lewis, although I haven’t seen the film yet, which is up for six Oscars on Sunday night. As someone uninterested in sports (except for basketball), I couldn’t quite understand why I was so intrigued by a book about baseball and statistics. And I mean engrossed in this book, reporting like an eager third grader every night at dinner as I delved deeper into the Oakland A’s dugout. Billy Beane, played by Brad Pitt in the film, decides to use a different schema for recruiting and retaining ball players during the 2002 baseball season. Breaking all of the rules of what matters about a player’s stats, Oakland's general manager Billy Beane, with the help of Peter Brand, a Harvard educated math wonk, played by Jonah Hill, methodically holds fast to a new set of statistics to assess the value of any player. This is called sabermetrics. Beane throws out 150 years of baseball wisdom in a single baseball season. A totally different way of assessing the value of a player, um, that sounds intriguing.

It’s hard to imagine that in 1950, roughly half of the practicing attorneys in the United States were not college educated, but had gone to law school from high school or less. Post World War II brought with it an influx of students, thanks to the GI Bill, and most of those students were men. That wartime anomaly—twenty-five percent of law school students being women—ended quickly. Standardization won out, too, according to Robert Stevens in Law School: Legal Education in America from the 1850s to the 1980s, (the basis of this series of articles on how law schools developed into what they are today). There was not that much difference in the content of the curriculum offered at a local or regional law school and that offered at Harvard, Yale, or Stanford by the late 1940s. The ABA and AALS won: four years of college and three years of full time law school was mostly needed to sit for the bar with the noticeable exception of California (and a few other states), which still had state-accredited law schools and an apprenticeship avenue into practice. What did law school look like: large classes, the case method, and no written work apart from a final examination in each course. This was the time when law schools were the cash cows for many universities. There had been some “reform” in the 1950s and 1960s, mainly, introductory law classes, teaching fellows for tutorial help, the introduction of legal skills courses using the problem method, a few specialty seminar classes, and finally, clinical education. The biggest innovation, of course, was the acquiescence that negotiation, drafting, and counseling needed to be taught even if the case method couldn’t be instructive here.

The End of the Pipeline: A Journey of Recognition for African Americans Entering the Legal Profession by Dorothy H. Evensen and Carla D. Pratt (faculty members at Penn State and proud SALT members) is a “must” read for every law school dean, law school admissions officer, and pre law college adviser. Reading this book will deepen our knowledge about the roadblocks African American students face academically, economically, and culturally in order to cultivate an understanding of what help individuals and institutions can provide to these aspiring students along the way. Reading this book, although fraught with indignities and disappointments, is essentially optimistic, because it makes diversity more likely by identifying institutional and programmatic choices that can make achieving diversity more feasible. Evensen and Pratt’s research examines the stories of twenty-eight African American attorneys who graduated from law school after 2000 as the new millennium began. Each participant passed the bar and is working in the profession. Using an analytic/interpretive research methodology, Evensen and Pratt interviewed these “successful” pipeline travelers. The stories reveal what at first appear to be very specific and individual paths through high school, college, law school, the bar exam, and into practice. But Evensen and Pratt found patterns and organized these stories into categories in order to understand what works to navigate through the often difficult and circuitous pipeline. These stories illustrate how much power a teacher, family member, or friend can wield with a comment or a casual attitude—whether encouraging or not. These personal histories also reveal just how much our colleges and law schools have to restructure themselves as institutions to compensate for the educational inequities that isolate and alienate especially poor African Americans. If we want to have a diverse profession, we need to shake up the cultures of our law schools.

The middle tier law schools in the years between World War I, essentially pre-standardization, and World War II, when much had been accomplished to establish a singular way to teach law, were driven to emulate Harvard, Yale, and Columbia, just as they do now. Of course, this desire back then was to get onto the approved ABA list of law schools and an invitation to join the AALS. Now this emulation comes from an additional source: U.S. News & World Report rankings. In the years that the ABA and AALS were on the ascent, to call a law school merely a step to get its graduates through the bar exam was considered a horrific insult. To emulate Harvard, Yale, and Columbia, a law school had to ascribe to the case book method and hire scholars, avoiding experienced practitioners who were considered mediocre in the classroom, perhaps because their intellect had been diminished by pragmatism or worse yet, cynicism.

I actually don’t think we need a major reconfiguration. Clinics are extremely expensive. Extern programs are very often problematic. I would be satisfied if each and every law school teacher would include practice components in every course taught with the possible exception of con law. Every legal principle discussed should be followed with a discussion of how the principle is implemented in the real world. In addition, there should be an advanced course in the curriculum that focuses on practice aspects for each substantive discipline. Finally, I think recruitment committees and faculties as a whole should be reeducated to value practice in the candidate pool and the willingness of candidates to not only teach practice but to get involved in school service that exposes students to practice and helps students make career choices.

I love Project Runway, Work of Art, and Top Chef. Each of these shows uses a similar formula. Challenge ambitious, technically skilled, designers, artists, or chefs with creative tasks without enough time to thoughtfully complete them, forcing them to take shortcuts, and then judge their clothes, paintings, or dishes on their results not how they got there. Contestants get a mid-course critique from someone like Tim Gunn, Simon de Pury, or Tom Colicchio but mostly it’s taking the technical skills of the craft and then having the confidence to “make it work.” Mistakes that are made affect the way a dress falls, a sculpture engages, or a meal tastes. No one is evicted or jailed if a mistake is made. They are just “out.” Elizabeth who has worked for SALT as my assistant for three years is now a full time graduate student getting a master’s degree in landscape architecture. She still works at SALT on Fridays, and last week over our fish tacos at “Bubba’s Burrito Bar” she described how her program works. As she described grad school, we shared an “ah ha” moment. Every week new projects get thrown at her without enough time or instruction as to technique—designing environments and building models to illustrate them. “It’s just like Project Runway!” Never enough time, feeling like she is winging everything, and relying on self-discovering new technical skills as she goes along. There are some who believe this is the way we should teach law in the future because it is cheaper than the current models. It’s not so easy. Unlike tailoring, artistry, culinary arts, or landscape architecture, lawyering requires a true understanding of the structures of government and regulation; an ability to interact with people, technology, and systems, like bureaucracies and complex regulatory environments; and an ethical and professional value system that insists on rigor, integrity, and courage in the face of authority.

I think the major problem with David Segal's November 19, 2011 article in The New York Times, like much of what has been written in the vein lately, is that the perspective is way too narrowly on the large law firms and the elite law schools. While many law schools follow the lead of the elites, many also do not, but most of the schools who do not follow the model as closely are the lower ranked schools. The large law firms could solve some of their problems by recruiting at law schools that actually do produce practice ready graduates. USNews is also a big factor and could change the ranking formula to account for practice ready curriculum and teaching excellence. I realize that there has been a trickle down effect in the legal job market so that all new graduates are likely to find themselves competing with more experienced lawyers for any openings, but that is likely a very short term effect, and many of the newly unemployed former associates from large firms will find that they actually did not get much useful transferable experience during the first couple of years at those firms.

The first rule of persuasion is to choose when to begin a story. All of this talk about deregulation of legal education and the practice of law as being good for everyone needs some historical context. (This talk sounds dangerously like it was manufactured by the U.S. Chamber of Commerce). I started that examination last week when I posted Deregulation is Just Another Word for … . Today I am moving deeper into history to help us understand how the legal profession became a profession. It’s not a pretty story, because it happened here in the United States: a radical, young, immature, racist, and intolerant place that has always had a hard time living up to its aspirations. Looking back to the time when the American Bar Association—ABA—first began to influence legal education, I am once again heavily relying on the scholarship of Robert Stevens, Law School: Legal Education in America from the 1850s to the 1980s (University of North Carolina Press 1983).

Despite a stalled economy, sunk in part by decades of deregulation within the banking and investment communities, the US Chamber of Commerce is spending fortunes on Capitol Hill in an anti-regulation campaign directed at sweeping away any government involvement in policing corporate wrongdoing, environmental standards, healthcare, financial and other regulatory protections. This is being reported in the October 31, 2011 The Nation in the article “The GOP’s Obsession with Deregulation” by Robert Weissman, who just so happens to be president of Public Citizen and co-chairs the Coalition for Sensible Safeguards. The Chamber’s tactic is using the stubborn unemployment figures to claim that regulation, in any form, is really just another word for “job killers.” The same deregulation rhetoric is surfacing once again as the comprehensive review of the ABA standards moves into its final year.

A multi-year empirical study presents evidence that a diverse law student body combined with intergroup contact makes a verifiable difference in law students’ exposure to a diversity of ideas and perspectives and decreases law students’ endorsement of racially prejudiced attitudes. An initial report of the study, The Educational Diversity Project: Analysis of Longitudinal and Concurrent Student and Faculty Data: LSAC Grants Report Series, can be found at: http://www.lsac.org/LSACResources/Research/GR/GR-10-01.pdf

By Kim D. Chanbonpin  A law professor’s job is to shepherd law students into the legal profession.  We do this by teaching legal doctrine and by engaging in class discussions formulated to get students “to think like lawyers.”  Law school promotes an acculturation process through which students are transformed from law novices into law experts by the time they graduate. Students are subjected to this process in all of their classes, but the legal writing classroom is potentially the most formative.  Most first-year grades are based on a single final exam at the end of a semester.  In the legal writing classroom, by contrast, student performance is assessed at several points during the semester.  Also, students typically have more one-on-one time with their writing professors.  The legal writing classroom is therefore a critical training ground for our future lawyers.   Yet, many students fall victim to the acculturation process that law school imposes.   The relentless process of assimilation to which law students are encouraged to succumb often sacrifices the voices of law students who enter from outsider positions.  The audience for most first-year legal writing assignments consists of legal “insiders”–supervising attorneys or judges.  According to Professor Kathryn M. Stanchi, “[s]tatistically, white, upper-middle class, heterosexual men tend to be overrepresented in these positions.”  The students who do not fit this insider mold can feel isolated and alienated from their legal education.   Professor Charles Calleros has argued that “we sometimes can reduce student alienation by allowing different groups of students to take turns enjoying the status of ‘Insiders’ on a problem, rather than routinely relegating some students to the role of perpetual ‘outsider.’”  Using hip hop as a teaching tool can provide some outsider students with the opportunity to become insiders.   What do hip hop and legal writing have in common?  Both hip hop and legal writing rely on an archive of knowledge.  Both hip hop artists and lawyers borrow from their respective archives to build credibility and authority.  Yet, whether it is from musical recordings or case law, the borrower is drawing from a limited well. 

Two weeks ago SALT collaborated with The John Marshall Law School and Northern Illinois University College of Law to bring to practitioners and recent graduates of color some of the ways to “break into” the legal academy from practice, public interest, and government service. During one of the panels, Rogelio Lasso, commented that back when he was first looking to get a job as a professor, Michael Olivas as the founder of Latino Law Professors, maintained his own list of qualified Latina/Latino attorney-scholars and recent graduates who were ripe to join a law school faculty. Whenever a dean or hiring chair complained that there were no qualified applicants, Michael would pull out his list. Now SALT’s programs, along with LatCrit and the various People of Color conferences, make those secret handshakes and unspoken rules more transparent. The consequence is a slow and steady push towards greater diversity within the faculty ranks of the legal academy. This past weekend, SALT, along with Seattle University School of Law and its Fred T. Korematsu Center for Law & Equality and University of Washington School of Law, presented the third biennial “Promoting Diversity in Law School Leadership” workshop, hosted at Seattle University School of Law. An enormous thank you goes out to Robert S. Chang, associate dean for research and faculty development and executive director of the Korematsu Center for his extraordinary efforts to plan this workshop, recruit the panelists, and ensure that the discourse was subtle, complex, and helpful to candidates, new deans, and those serving on dean search committees.

The Executive Committee (EC) of the Association of American Law Schools sent a memorandum to Deans of Member Schools dated August 22, 2011, announcing that the EC had adopted a dues increase of 3.5% for member schools for calendar year 2012, by amending EC Regulation 3.1, which specifies the amount of annual dues. Under the AALS By-Laws, this dues increase goes into effect unless objection is received from at least ten member schools within 60 days of the mailing of the regulation. A copy of the memorandum was also mailed to all members of the AALS House of Representatives. I received a copy of the memorandum as the NYLS Representative. After reading the memorandum and looking at the financial information attached to it, I recommended to my Dean that NYLS file an objection. I want to share my reactions with fellow SALT members.

Amidst the discouraging stream of newspaper articles and blogs this summer demonizing law school deans, accusing university presidents of raiding law school tuition revenues, and suggesting a giant conspiracy to cover up the fact that there are very few $160,000 a year jobs for recent law school graduates, it appears that only the oblivious might consider enrolling in law school this fall. I beg to disagree. Now is the right time to encourage students from diverse racial, ethnic, and economic backgrounds to consider a legal education. We cannot allow the legal profession a detour from its mission to produce lawyers and leaders from all communities due to the economic downturn.

By Benjamin G. Davis, Associate Professor, University of Toledo College of Law A colleague brought to my attention this week an article concerning the effort to extradite former Acting General Counsel John Rizzo of the Central Intelligence Agency to places such as Pakistan for him to stand trial for murder with regard to persons killed by drone strikes.  This article struck a chord with me because John Rizzo played the key role in authorizing drone strikes on individuals in  this administration, but also was a key player as detailed in the Department of Justice Office of Professional Responsibility Report released by Attorney General Holder in seeking legal cover/clarity for the CIA persons engaged in the torture under the Bush Administration.  Rizzo also spoke at my law school last year as part of a law review symposium on the Military Commissions in which persons from the floor raised issues about his role in the torture.  This article also struck me as I work this summer on topics related to accountability in our federalism and separation of powers for a law review article looking at state criminal prosecution of a former President. The legality of drone strikes has been the subject of much debate as persons have argued whether they should be analyzed under the legal regimes of international humanitarian law, international human rights law, domestic law such as the Authorization for Use of Military Force, or a construct that has sought to be seen as emerging that might be called international self-defense law.  The analysis of the torture over the past years has also sought to look for treaty, customary international law, and domestic federal statutes.  For example, we have recently been made aware that two criminal cases concerning torture and the CIA are going forward at the suggestion of US Attorney John Durham.  Durham was tasked by the Attorney General at the Department of Justice to review 101 cases regarding detainee treatment and the CIA to see if there were any cases where the treatment was outside the boundaries of the legal advice given.  Finally, the definition efforts for the crime of aggressive war in the Rome Statute that recently occurred at Kampala are another aspect of  trying to articulate rules for criminal responsibility for actions taken by state actors.

One of the pedagogy sessions at the AALS New Teachers Workshop was led by Paula Lustbader (Seattle) and Laurie Zimet (UC Hastings) who focused on how to bring technology into the classroom so that we aren’t competing with Facebook, Twitter, and GiltGroup.com. (I’ll leave those links out so that you will finish this posting!) Paula and Laurie are gifted teachers of teachers, modeling for the newbies how abandoning lecture and incorporating technology will make teaching and learning more dynamic, and empower rather than infantilize students. So with Paula and Laurie in mind, I watched Stephen Colbert this week, in real time, awed once again by the sheer chutzpah of his comedy.