What Do Students Do in Clinics?

May 17th, 2017 / By

Douglas Kahn has posted an article criticizing the “proliferation of clinical and other experiential courses” in legal education. These courses, he argues, reduce the number of “doctrinal” courses that students take, leaving them “ill-prepared to practice law as soon after graduation as law firms would like.” The TaxProf Blog posted a summary of the article, and a baker’s dozen of readers have offered pro and con comments.

It’s an old debate, one that has bristled for more than 50 years. The discussion doesn’t surprise me, but Professor Kahn’s ignorance of clinical education does. His bold assertions about clinics reveal little familiarity with the actual operation of those courses. Let’s examine some of Kahn’s claims.

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Clinics and Costs

May 6th, 2017 / By

Bob Kuehn has written an incisive article about the relationship between law school tuition and clinical education. Contrary to many educators’ assumptions, Bob finds that there is no statistically significant relationship between the tuition charged by schools that require a clinical experience and schools that do not. Requiring students to complete a clinic before graduation, in other words, does not correspond with increased tuition.

Similarly, schools that guarantee students a clinical experience–should they choose to take one–do not charge significantly higher tuition than schools without that guarantee. Accounting for tuition discounts did not change these results: Schools with clinical requirements or guarantees did not acquire significantly more tuition revenue per student than those without those requirements or guarantees.

The same story emerged when Bob analyzed clinical course availability (rather than requirements or guarantees). Enhanced clinical opportunities never correlated significantly with higher tuition (either list price or discounted). On the contrary, several analyses found a significant relationship between clinical opportunities and lower tuition rates. Bob summarizes the results of his research in a post on the Best Practices for Legal Education blog.

How could this be? Aren’t clinics incredibly expensive to run? Well, yes and no. As Bob explains, the availability of clinical education depends more on the choices that law schools make than on the direct cost of clinics.

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Prices and Priorities

May 11th, 2016 / By

Bob Kuehn has written a terrific essay refuting the notion that clinical courses are too expensive for law schools to offer. His online piece includes plenty of hard data; some he gathered and some he drew from other sources.

Kuehn’s essay reminds me of a conversation I had a few years ago with a member of my university’s board of trustees. I alluded to the challenges that public universities like ours face with reduced tax support for higher education. He responded differently than most trustees or administrators, who are happy to bemoan losses of public support. “There’s plenty of money,” he said. “It’s just a question of your priorities in spending it.”

And, of course, he was right. For the current fiscal year, my university predicted revenues of $6.1 billion dollars and expenditures of $5.5 billion. Even if revenues fell to match expenditures, that’s a lot of money to distribute.

Most universities, let alone law schools, are considerably smaller than Ohio State. About half of our budget, furthermore, stems from the medical school and health care center. (This is an interesting fact about many university budgets, that health care research and delivery is matching or exceeding other educational expenses.) Still, my board member’s comment is apt: Law schools operate sizable budgets and they have considerable discretion in allocating that money.

We don’t favor LSAT scholarships over need-based ones because budgets force us to do so; we make that choice to pursue higher rankings. Similarly, we don’t cater to the demands of tenured research faculty, rather than expanding clinical education, because our budgets are limited. We make that choice because it suits us (the tenured faculty) and because we hope, once again, that our choice will propel higher rankings.

Bob provides a welcome antidote to these ingrained choices. Expanding clinical education wouldn’t actually raise tuition; it would simply require faculties to change their priorities. And even those changes would be relatively small. We have to ask ourselves: What is the real root of our resistance to clinical education?

H/T to TaxProf for also featuring Bob’s essay today.

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“Little Staff Attorneys”

January 21st, 2016 / By

At the AALS meeting, a friend of mine (and tenured professor) stood chatting with a few tenured colleagues from other schools. Conversation turned to work that another professor had done in a clinic. “Yeah,” said one of the professors, impressed, “and they didn’t even have a little staff attorney to do all the work.” My friend protested this derogatory reference to staff attorneys, and the professor apologized, but the remark was telling.

This is how all too many tenured professors think of clinical work, clinical professors, and staff attorneys; the same attitude applies to legal writing professors. This work, we assume, is simplistic and doesn’t merit our full attention. It can be done by “little” people. (more…)

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The Value of Clinics

January 9th, 2016 / By

I just returned from the AALS annual meeting, where I attended a session sponsored by the section on clinical education. The program, notably, was assigned to the “Bowery” conference room. For those not familiar with NY geography, the Bowery is a “city district known for cheap bars and derelicts.” It’s not clear why the Sheraton Midtown decided to name a conference room after that checkered locale.

We “derelicts” of legal education, however, assembled in our Bowery room to discuss the value of clinical education. We heard numerous thoughtful evaluations of clinics, including survey evidence about the value that students and employers place on this experience. We also listened to a particularly incisive presentation by Bob Kuehn on the costs of clinical education. As Bob has written in a forthcoming paper, clinical courses are not as expensive as many observers believe.

A particularly eloquent statement, however, came from a member of the audience. Every professional, he observed, develops lifelong values, attitudes, and habits of mind in their first professional workplace. Why wouldn’t law schools want to shape those values? Classroom discussion, Socratic questions, and exams go only so far. Don’t we want to shape our graduates as professionals? Why would we forego the chance to make those impressions?

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Beneventan Writing

December 17th, 2013 / By

My university library recently announced its acquisition of a rare piece of Beneventan writing. The acquisition is just a page fragment, literally a scrap of paper dating from the eleventh century. Why does this small piece of paper matter?

Ohio State has a Center for Epigraphical and Palaeographical Studies; our Classics Department supports courses and research projects related to medieval manuscripts. Because Beneventan script is so rare, faculty doing this work have relied upon digital images and photographs to study the writing. “[T]here’s nothing wrong with that,” Ohio State’s rare books curator acknowledged. “But it’s awfully nice to have a genuine example to show the students because you can see the grain of the parchment and the way the ink has skittered across the page because of the way the scribe has drawn his quill across it.”

As a scholar, this makes sense to me. I learn a lot from digital images and photographs, but original artifacts have special power. I don’t need to study everything in the original, but access to some originals greatly enhances study and teaching.

As I reflected on this, I realized that the same rationale supports clinical teaching in law, medicine, and other parts of the university. We can show students photographs of courtrooms; we can engage them in digital simulations; we can assign them thousands of appellate opinions. But if we want our students to understand law as deeply as a Classics scholar strives to understand Beneventan writing, then we need to let our students work with originals.

A real client, with a real problem, in a real world setting–that’s the the law school equivalent of the manuscript fragments in the library’s rare books collection. The rare books room and law school clinic seem to lie at opposite poles of the campus world. But at root, they share an essential attribute: they both enable deep learning through engagement with originals.

Postscript: For those who are curious about Beneventan script, the writing was used in Southern Italy between the eighth and thirteenth centuries. The Monastery of Monte Cassino, founded by St. Benedict, used this script; that enhanced the script’s importance in Benedictine writing.

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Core Faculty

March 24th, 2013 / By

The tenured and tenure-track professors form the core of a law school faculty. At most of our schools, those faculty teach doctrinal courses and seminars; they also devote considerable time to research. Over the years, we have added clinical and legal writing professors to our faculties, but they rarely are part of the core. These writing and clinical professors are paid less, usually lack tenure, and bear fewer expectations for scholarly research. They may vote on curricular matters; they may even chair committees and perform significant administrative work for the school. Their lack of tenure and lower status, however, make them more cautious about their votes and the opinions they voice. They know that they are outside of the core.

I would flip this structure. If I were starting a law school, I would hire experienced legal writing and clinical professors as the core tenure-track faculty. At existing schools, I would move as quickly as possible to that structure. Why? The legal writing and clinical professors are the ones who know best how to teach what we claim to teach in law schools: how to think like a lawyer.

Legal writing professors have analyzed the components of thinking like a lawyer, developed the vocabulary for explaining that process to students, and created hundreds of well designed exercises. Where does a student really learn how to analyze and synthesize cases? In a class of 75-120 students, where the professor calls on one student at a time for 150-200 minutes a week, offers little individualized feedback, requires no written product until the final exam, and tests students on issue-spotting during a 3-4 hour exam? Or in a class of 18-20 students, where the professor offers a sequence of assignments designed specifically to teach analysis, synthesis, and other critical reasoning skills; provides frequent individualized feedback; requires several written assignments; and grades students on their ability to produce well reasoned analyses of a problem that requires research, analysis, and synthesis of new cases and statutes?

The traditional law school classroom, with its case method and socratic questioning, is better than pure lecture at teaching critical reasoning. But it is still a woefully inefficient and ineffective process of teaching students how to read cases and statutes, how to synthesize those materials, and how to apply them to the facts of novel problems. During the last thirty years, our legal writing programs have developed at a remarkable rate. They now surpass other first-year courses in their ability to teach critical thinking. If you want a professor who knows how to teach legal analysis to first-year students, and who has studied the pedagogy of teaching those skills, then choose a legal writing professor.

The same is true of clinical professors in the upper level. These professors know how to build on the reasoning skills that students developed in the first year. They don’t greet students with the same casebook/socratic method of instruction. Whatever its merits in the first year, that style offers diminishing returns in the upper level and bears little relationship to how practicing lawyers learn new areas of law. Clinical professors are accustomed to helping students identify unfamiliar areas of law that may affect their clients, research those issues (using an appropriate combination of secondary sources, cases, and statutes), and think critically about the sources in connection with a particular case. They are also experienced at the other types of critical thinking (fact analysis, separating wheat from chaff in client or witness interviews, problem solving, etc) that students should encounter before graduation.

If we want a tenured law faculty that focuses on teaching students how to “think like a lawyer,” then legal writing and clinical professors fit the bill. I would put them at the core.

These professors could also teach doctrinal courses. Currently, we swamp legal writing professors with too many students. If each taught a section of 18-20 students, the professor could teach two legal writing courses (one each semester) plus a large section of a doctrinal first-year course. These professors would bring their pedagogic skills to those doctrinal courses, enhancing the teaching of analysis and reasoning throughout the first-year curriculum.

Similarly, a clinical professor could supervise a clinic each semester and also teach a doctrinal course one semester. Many clinicians already do that; their ongoing practices keep them up-to-date in many areas. A school could hire additional tenure-track faculty to teach other doctrinal courses, although I would encourage each of those professors to teach at least one writing, clinical, or simulation course: that is where we really teach students how to “think like a lawyer,” whether that thinking requires close reading of a case closely or thoughtful questioning of a client.

What about research? I’ve taught doctrinal, legal writing, and clinical courses during my almost thirty years in teaching. A course load of two reasonably sized writing courses and one doctrinal course allows plenty of time for scholarship. For a clinician, the balance is somewhat closer; it depends somewhat on the nature of the clinic and the clients’ demands. Many clinicians, however, have already shown their ability to combine clinical teaching with scholarship–as have writing professors. The strongest barriers to scholarly work by these professors, I believe, are the second class status we currently afford them, together with the constant suggestion that they’re not capable of excellent scholarship.

There is room for many types of teaching and scholarship on law faculties. Our biggest error, perpetuated at most law schools, has been keeping legal writing and clinical courses at the periphery of the curriculum and faculty. If we move those professors and their courses to the core, where they belong at any institution devoted to teaching students to think like lawyers, we would solve many of the pedagogic problems plaguing law schools today. We could teach doctrine and new “practice ready” skills, while improving the ways we teach traditional methods of thinking like a lawyer.

We could also solve some of our budget problems. Legal writing and clinical professors typically earn half of what tenured doctrinal professors bring home. What if we split the difference? If we paid all professors a salary between the one currently offered legal writing/clinical faculty and the scale used for tenured doctrinal faculty, we could moderate faculty salaries to where they were a generation ago. Those salaries would still exceed wages paid to professors in other disciplines and, I predict, would be more than enough to attract and retain talented professors in the academy.

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Incubators

January 3rd, 2013 / By

Several years ago, my city’s bar association started an incubator program for new lawyers. The program is small, but draws positive reviews from a few graduates I know. More recently, I read that IIT Chicago-Kent’s College of Law had started an incubator for its alumni. This article in the Illinois Bar Journal offers a good opportunity to think about incubators–as well as about the relative merits of incubators housed at law schools or in the community.

The Chicago-Kent incubator currently hosts five new lawyers, all of whom graduated from the school. The lawyers receive free office space, along with access to copiers, the school’s law library, and Westlaw/Lexis subscriptions. Clinic faculty mentor the new lawyers and can also refer cases to them. In return, the incubating lawyers donate up to ten hours a week helping the clinic with its cases. An incubator lawyer, for example, might handle a status call that the clinic students are unavailable to cover. The new lawyers also pay for their own malpractice insurance.

Incubators, whether housed in a law school or practice community, have several attractions:

(1) They provide a safety net for new lawyers who want to establish a solo or small practice. Law faculty or practitioners can help the new lawyers handle unfamiliar challenges. Some incubators also develop regular programming to instruct participants in ethical issues, office management, marketing, and other matters.

(2) The incubator reduces overhead costs for fledgling lawyers. Universities and bar associations often can provide heat, light, libraries, and other amenities at lower cost than the lawyers would find on the market. In at least some cases, the incubator provides these services free–drawing upon excess capacity or altruistic motives.

(3) By training lawyers for effective small-office practice, the incubators may help create competent, reasonably priced providers for low- and mid-income clients. Many incubators complement this public purpose by requiring participants to provide some pro bono service during their time in the incubator.

(4) Lawyers won’t make a lot of money while practicing in an incubator, but they’ll make more than they would as volunteer interns. Incubators give new lawyers a chance to develop some practice skills–which they may be able to market to larger firms, government, or corporations–without forfeiting all income.

But, of course, there are downsides:

(1) Incubators will do little to expand the number of clients who can pay for small-office legal services. Incubators can train lawyers, but can they produce enough paying clients to sustain the lawyer in the long run? Will the incubator graduates simply compete with other solo practitioners for a dwindling number of paying clients?

(2) By the same token, incubators won’t solve the problem of unmet legal needs–unless they help lawyers develop ways to deliver legal services at lower cost. The American public doesn’t suffer from a lack of lawyers; it suffers from a lack of lawyers who can afford to deliver services at rates the public is willing to pay.

(3) If solo practice won’t sustain incubator graduates, they may seek work with other employers. But will larger firms, government agencies, and corporations value the work performed in incubators? Employers seem to give less weight to clinical experience than their demand for “hands on” training would suggest. Will they adopt the same attitude toward incubator experience? Will the incubator work prove worthwhile only for jobs in the same legal field?

What about the differences between law school incubators and practice-based ones? A law school incubator can strengthen bonds among current students, alumni, and faculty. If a clinic has strong community connections, it may also be able to feed the incubator clients, benefiting both those clients and the new lawyers. Clinical law faculty are accustomed to mentoring new lawyers; working with recent graduates builds naturally on work with current students. For the school, there is also the attraction of benefiting its own alumni–and enhancing their employment outcomes.

On the other hand, some law school mentors may lack knowledge about issues that matter to new solo practitioners. Many clinics provide free legal services and benefit from university-provided facilities. Do faculty in these clinics have sufficient experience with budgeting for a small office practice, marketing their services, developing client bases, setting fees, and collecting payments from clients? On some of these issues, and depending upon the school, new lawyers might receive better mentoring from bar-hosted incubators. A bar-based incubator can also create important bonds within the legal community; larger mentoring relationships might grow out of the incubator.

The biggest question for all incubator programs may be: Can schools or bar associations take these programs to scale, so that they benefit more new lawyers? If not, what lessons can incubators offer other organizations that mentor new lawyers? Can the incubators teach law schools or employers how to better educate lawyers?

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