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The Tale of Two Students
August 19th, 2015 / By Deborah J. Merritt
A recent statement by a group of deans offers a telling insight into the way law schools envision their graduates’ practice experience. In the course of criticizing California’s proposal to require 15 units of experiential education, the deans contrast two types of students.
On the one hand, the deans worry that California’s proposal “could seriously hamper the student who wants to practice tax law and whose future employer advises taking as many specialized courses as possible in that field.” Students who are going to practice tax, they imply, need to learn a lot of legal doctrine; those students don’t need to spend much time learning about negotiation, client counseling, drafting, or other practice-based matters during law school.
On the other hand, the deans suggest that if California’s bar authorities are worried about new “graduates who seek to ‘hang out a shingle,’ or engage in other areas of direct representation or fields requiring particular training, there are many ways that a state bar might reform its regulatory structure to certify a higher level of competency for particular kinds of practice.”
Why do graduates who engage in “direct representation” need a “higher level of competency” than junior tax lawyers? Because the tax lawyer (or at least the one these deans have in mind) is going to work for a large law firm that will be able to tutor her gradually in client representation. In its traditional form, legal education doesn’t teach students to represent clients directly. Instead, we assume that employers will take care of all that.
False Assumptions
That assumption worked, for a time, for law school graduates taking jobs in firms that served corporate clients. Those firms could afford to train new lawyers; they also had a large body of work (e.g., document review and legal research) that new lawyers could profitably perform while learning to represent clients. The clients, meanwhile, seemed content to subsidize some new lawyer learning.
The assumption never worked very well for other other employers. Small law firms, legal aid offices, public defenders, and many government offices have always needed new lawyers who could engage immediately in direct representation. These employers and their new hires struggled to complete the work that law schools left undone.
Our traditional model of legal education, in other words, prepared graduates to work for an employer with substantial supervisory assets. Big firms and their corporate clients had those assets; other employers and clients did not. We favored the former over the latter, simply by the way we structured our curriculum.
The New Economy
Today, of course, the assumption doesn’t work well even for the largest firms. All employers want new lawyers with more practice sophistication than graduates typically possess. Stiff market competition drives those demands: clients can shop around for law firms, and firms have their pick of hungry new lawyers.
Law schools have responded, and we are starting to educate students more directly for their professional roles. Still, as this deans’ statement reflects, schools reflexively protect parts of the curriculum that benefit students headed for large firms–rather than eagerly embracing educational experiences that will benefit all of the graduates who begin working with clients immediately.
Why do we do this? Why do law schools worry first about preparing students for large firm practice–relegating those engaged in “direct representation” to the shadows, where they will somehow, somewhere obtain the “higher level of competency” they need to represent clients?
Getting It Backwards
Our system of legal education is upside down. We should educate all future lawyers to engage in direct representation; that’s what lawyers do. JD students who want to be lawyers need to study basic legal doctrine, legal research, legal writing, case analysis, statutory interpretation, the principles of professional responsibility, and legal reasoning. Our curriculum has grown to accommodate most of those subjects relatively well.
Rather than rounding out their study with advanced doctrinal subjects, however, these students should study professional skills like interviewing, client counseling, negotiation, deal making, financial analysis, drafting, and advocacy. Future lawyers should, finally, have experiences that tie all of those elements together in supervised client representation.
The latter experiences should displace advanced doctrine in the JD curriculum for four reasons. First, all lawyers use a subset of these skills, just as all legal fields build upon the foundation concepts taught in the first year. It makes sense to teach basics at the beginning of a professional’s career.
Second, these experiential courses reinforce the legal doctrine learned in other courses. I audited a Trial Practice course a few years ago and cringed as my Evidence students (who had taken their exam just a week earlier) failed to remember basic evidentiary principles. After a few weeks in Trial Practice, however, their knowledge returned–stronger and deeper than ever. When students ask me how to prepare for the bar exam, I tell them to take courses in bar subjects accompanied by experiential courses that reinforce that learning.
Third, law schools actually teach professional skills better than employers do. Sure, a new lawyer can learn something by watching a more senior practitioner. But if he asks the senior lawyer how she accomplishes a particular task, the senior lawyer is likely to say something like “I don’t know, I just do.” Academic settings are much better than workplaces for identifying underlying principles, reflecting on how and why things work, providing supervised practice, and developing new approaches. These advantages hold for the professional learning we call “skills” as well as for bodies of legal doctrine.
Finally, if lawyers need advanced doctrinal training in an academic setting, we have plenty of programs to fill that need. Law school teaches students how to think like lawyers precisely so they can learn new legal doctrines on their own. For areas that are too complex for that self learning, graduates have an increasing array of options: traditional LLM programs, online courses, professional workshops, and certificate programs. Today’s graduates will practice law until 2055 or beyond. Doesn’t it make sense for them to learn basic skills first and purchase new instruction in legal doctrine when they need it?
Conclusion
If we’re serious about either serving clients or educating students for good practice opportunities, we need to turn legal education rightside up. Lawyers have a monopoly over direct representation of clients on legal matters, nothing else. It’s time to take seriously our responsibility–and our opportunity–to educate students for that role.
Statement from the AALS Section on Clinical Legal Education
August 17th, 2015 / By Deborah J. Merritt
The AALS Section on Clinical Legal Education has issued an excellent statement about California’s proposal to require bar applicants to complete 15 units of practice-based experiential coursework. I have already written two posts supporting this proposal, and agree with the views expressed in the Section’s statement. Here is the statement in full:
AALS Section on Clinical Legal Education Statement of Position Regarding the State Bar of California Task Force on Admissions Regulation Reform (TFARR) Experiential Education Requirement*
The Association of American Law Schools Section on Clinical Legal Education (“AALS Clinical Section”) applauds the Trustees of the State Bar of California for unanimously adopting the proposal of the Task Force on Admissions Regulation Reform (“TFARR”) to require applicants to have completed 15 credits of experiential education prior to sitting for the California Bar. The AALS Clinical Section is made up of hundreds of legal educators, including many in California who have dedicated their professional lives to preparing students for the practice of law through in-house clinics, externships, and other experiential educational offerings. In recent years, we collectively and individually have been involved in efforts to ensure that our JD students are more ready for practice, consistent with calls for such training made by bar associations, alumni, prospective students, and fellow educators. Many of us have participated actively in state bar associations and on bar committees, allowing us to appreciate the goals of both the legal academy and state regulators. With these experiences and perspectives in mind, we believe that the TFARR proposal, which encourages the integration of 21st century lawyering skills into the core of legal education, presents a significant opportunity to better prepare students to meet the demands of clients upon admission to the bar.
As the Clinical Legal Education Association (CLEA) and other stakeholders have noted, the legal profession has lagged far behind every other profession in regards to required pre-licensing professional skills education. Numerous studies over the past four decades by the American Bar Association (ABA) and others have decried this lack of practical training and called for reforms to the required law school curriculum.[1] As a result of these reports, the ABA recently increased the number of credits of experiential education required of JD students from 1 to 6 credits.[2] While this represents a significant increase for law students, it corresponds to less than 8% of the JD program. It is also 4 times less than the practical training required of social workers and nurses and more than 6 times less than the practical training required of physicians.[3]
A. The Proposal Reflects an Increased Demand for Experiential Opportunities
Law students also have been clamoring for more experiential education opportunities. The greatest evidence of this demand is the criteria students rely upon when choosing a law school. These choices have become ever more important for law schools facing declining application numbers. A Law School Admission Council study in 2013 found that clinics/internships were among the most influential factors for prospective students in deciding whether to enroll at a given law school, behind only location and employment of graduates (77% of respondents considered location to be a very important factor and 68% classified clinics/internships as very important).[4] In fact, experiential offerings were more important to these prospective students than the cost of the institution, the personal attention they would receive, a school’s ranking, and the reputation of faculty. In addition, a survey conducted in 2004 of recent law school graduates found that opportunities for professional skills training (including clinical courses and legal employment) were rated as the most helpful law school experiences in successfully transitioning to practice.[5] Surveys conducted by the National Association for Law Placement in 2010 and 2011 likewise found that lawyers in the private, government, and non-profit sectors attached great value to their law school clinic experiences.[6] Thus, from the viewpoints of prospective law students, recent graduates, and more senior lawyers, practical training is vital.
B. The Proposal Permits Great Flexibility and Aligns with the ABA Rules
We are aware that TFARR took these factors into account and that it crafted and revised the final proposal over several years during which it worked closely with California law schools, practitioners, and the judiciary, and engaged in extensive information gathering, including numerous opportunities for public comment. The result is a proposal that gives law schools guidance on developing and evaluating experiential learning offerings while simultaneously giving schools flexibility to design these offerings in ways that suit particular institutional missions, student bodies, and relevant legal markets. First and foremost, the proposed California bar rules provide a “safe harbor” for courses that comply with the revised ABA standard, thus allowing ABA-accredited schools to offer programs that simultaneously satisfy both requirements. Under both sets of rules, virtually any topic taught in a real-client or simulated setting will satisfy the ABA and the California Bar, including interdisciplinary courses developed in collaboration with other professional schools. Skills learned can be as diverse as law practice management, client counseling, practical writing (including transactional writing), and pre-trial preparation.
In addition, under the California rules, the settings in which these skills can be learned include traditional courses, clinics and externships, uncredited clerkships, and apprenticeships. The proposal even allows for portions of a course to count, such that a 3-credit course that uses a contract-drafting exercise for 1/3 of the class time could count the 1-credit module towards the 15-credit requirement. Moreover, in a nod to schools experimenting with their first-year curricula, all but the first 4 units of first-year legal research/writing courses can count towards the 15 credits if they are taught through real or simulated client work. Finally, summer work that is uncredited is specifically allowed to count for up to 6 of the 15 required units. Thus, there are virtually limitless permutations of course, field, and uncredited work that law schools can offer to their students in order to meet both the ABA and California rules.
Moreover, the emphasis on skills (as opposed to substantive practice areas) provides schools the ability to tailor offerings to the local marketplace (e.g., oil and gas offerings in Texas or maritime law offerings at coastal schools). The result is that virtually any legal experience a student gains, whether in a law and policy reform organization or at the U.S. Patent and Trademark Office, can potentially count towards the 15-credit requirement. This provides a great deal of room for innovation, allowing institutions to experiment with the delivery of skills and professional training and draw upon generally under-utilized resources such as alumni.
As with any new undertaking, there will be a period of adjustment as schools begin to grapple with both the new ABA requirements as well as state requirements like those proposed by TFARR. TFARR has wisely taken this adjustment period into account by offering exemptions for licensed attorneys from other jurisdictions and allowing post-graduate apprenticeships (which can be paid) to meet the 15-credit requirement. This will ensure that schools have plenty of time to audit and/or ramp up their offerings, that lawyers who had not planned to practice in California still have access to that state’s bar, and that students have every opportunity to learn about and meet the requirements prior to their first bar admission.
Conclusion
Overall, the TFARR proposal presents a significant opportunity to improve the overall competency of new admittees to the State Bar of California. As students enter a rapidly changing and expanding legal marketplace, it is incumbent upon the Bar to ensure that law graduates have the doctrinal knowledge and professional and interpersonal skills needed to effectively and ethically represent clients in California. The TFARR proposal would advance this important obligation of the Bar and help legal education fulfill the demands of our students, their future clients, and the legal profession.
* * *
* Disclaimer in accordance with AALS Executive Committee Regulation 1.4: The opinions expressed here are not necessarily those of each member of the Section and do not necessarily represent the position of the Association of American Law Schools.
[1] The ABA’s 1979 Report and Recommendation of the Task Force on Lawyer Competency: The Role of the Law Schools (“the Crampton Report”) proposed that law school curricula pay more attention to providing professional experiences. The ABA’s 1983 Task Force on Professional Competence shared this perspective and recommended that the ABA make enhanced law school training in lawyering skills a top priority. A decade later, the 1992 ABA Report of the Task Force on Law Schools and the Profession: Narrowing the Gap (“the MacCrate Report”) recommended that law schools “develop or expand instruction” in fundamental lawyering skills and professional values; and the most recent, the ABA Task Force on the Future of Legal Education Report and Recommendation reiterated the “calls for more attention to skills training, experiential learning, and the development of practice-related competencies” and noted that the “balance between doctrinal instruction and focused preparation for the delivery of legal services needs to shift still further towards [the latter].” In addition, the Carnegie Foundation for the Advancement of Teaching publication, Educating Lawyers: Preparation for the Profession of Law (2007), found that courses that included real-life experience with lawyering could teach students all of the relevant professional competencies: intellectual, practical, and formation of professional identity and judgment.
[2] ABA Standard 303(a)(3).
[3] Robert R. Kuehn, Pricing Clinical Legal Education, 92 Denver L. Rev. 1, Appendix A (2015) (citing Molly Cooke et al., Educating Physicians: A Call for Reform of Medical School and Residency (2010); and Council on Social Work Educ., Educational Policy and Accreditation Standards, at Educ. Policy 2.3., Accreditation Std. 2.1.3 (2012)).
[4] The survey ranked factors based on the percentage of respondents who rated each factor as “4” or “5” on a 5-point scale, with “3” as “somewhat important” and “5” as “extremely important.” See Law School Admission Council, LSAC Report, May 2013, at 12.
[5] NALP Foundation for Law Career Research and Education & American Bar Foundation, After the JD: First Results of a National Study of Legal Careers 81 (2004).
[6] National Association for Law Placement & The NALP Foundation, 2010 Survey of Law School Experiential Learning Opportunities and Benefits 6 (2011); National Association for Law Placement & The NALP Foundation, 2011 Survey of Law School Experiential Learning Opportunities and Benefits: Responses from Government and Nonprofit Lawyers 7 (2012).
Student Choice
August 13th, 2015 / By Deborah J. Merritt
This is the second in a series of posts about California’s proposed changes in bar admission rules. As my first post explains, the proposal will require bar applicants to show that they have completed 15 units of “practice-based, experiential coursework.”
Some law school deans have objected to the proposal on the ground that it will “limit the flexibility and self-determination of individual students in studying law, and in planning diverse careers.” That objection is misguided. The California proposal will increase student options by pressing law schools to teach more of the courses that students want and need.
Diverse Offerings
If the California proposal is adopted, it will allow students to fulfill their practice-based work in any doctrinal field. Schools can design courses focused on tax practice, securities regulation, environmental work, or any other subject that might attract law students. The courses may also teach a wide range of competencies, including but not limited to:
* Oral presentation and advocacy
* Interviewing
* Counseling
* Client service and business development
* Negotiation, mediation, and arbitration
* Other methods of alternative dispute resolution
* Advanced legal research and writing
* Drafting contracts, pleadings, or other legal instruments
* Law practice management
* Use of technology in law practice
* Cultural competency
* Collaboration
* Project management
* Financial analysis (e.g., accounting, budgeting, or valuation)
* Cost benefit analysis in administrative agencies
* Use of technology, data analyses, or predictive coding
* Business strategy and behavior
* Fact investigation
* Pre-trial preparation
* Trial practice
* Professional civility and applied ethics
Those are just some of the non-exclusive possibilities listed by the California report; schools and practitioners undoubtedly will suggest more. Indeed, the deans who object to this proposal have generated several excellent ideas of their own: a course offering hands-on experience with technologies that increase access to justice; one developing new business models and technologies for legal compliance; a practicum on the anatomy of business deals; and collaborations focused on drafting contracts, regulations, or treaties.
Based on my experience in legal education, that’s an exciting list of subjects for law students. The practice-based and experiential courses at my law school tend to fill quickly and generate waiting lists; I suspect the same is true at other schools.
Notice, too, that the competencies described above are not limited to jobs requiring bar admission. California is not going to force every bar applicant to draft a will or file discovery motions. Project management, mediation, cost-benefit analysis, cultural competency, and financial expertise are competencies that many employers seek. The organizations that hire law graduates for “JD Advantage” jobs want a blend of law-related knowledge, analytic abilities, and communication skills. California’s proposal fits that bill.
High Quality Education
In addition to requiring bar applicants to develop practice-based competencies, the California rule will assure that those law graduates experience at least 9 credits of upperlevel education that includes opportunities for individual performance “other than traditional classroom discussion,” individualized feedback from a faculty member, and opportunities for self-evaluation–along with conceptual development. (As explained in my previous post, students can earn 6 of the required practice-based credits in the workplace, so only 9 need be taken on campus.)
Most students are eager for that type of educational experience. They don’t want the “choice” of taking primarily lecture classes in their second and third years of law school. The California proposal will broaden their educational horizons by giving them more choices of both pedagogies and subjects.
I do know one group of students who may not welcome these options. Over the years, I have talked to some high-achieving students who tell me that they shy away from clinics and problem-solving courses because they don’t want to endanger their class rank. These students confide that they’ve mastered the art of excelling on time-pressured exams and know that they will outshine their classmates in that arena. Why risk an A-minus, B-plus (or worse!) by stepping outside their comfort zone?
This attitude, of course, runs counter to our purpose in higher education. Campus should be a place for students to try their wings, explore, and develop new competencies. It’s sad that our educational structure, combined with the hiring policies of many legal employers, dampens this purpose.
California’s proposal will force these students to spread their wings, and I think that’s a good thing. Students should use higher education to expand their excellence, not to preserve a grade point average. Complaints from big law firms and their corporate clients, moreover, suggest that these high-ranking students will benefit from more practice-based, experiential education.
Client Service
For the above reasons, I think most students will cheer the California “requirements” as rules that introduce new options in the law school curriculum. Even if some students don’t want to take practice-based courses, California is right to require them for bar admission. We don’t create law school curricula to make students happy; we design courses to educate lawyers who will serve clients in the best possible manner.
Future lawyers should develop practice-based competencies for the same reason they should take Torts, Contracts, and several other courses: These are foundational elements for law practice. Three years isn’t enough time for students to learn all of the ways to “think like a lawyer,” but they need some foundation in cognitive competencies beyond appellate-style legal reasoning. California’s proposal allows bar applicants to choose the competencies most suited to their ambitions–including goals that lie outside of traditional law practice.
California’s proposal, which seems so restrictive to some law deans, is much less rigorous than the requirements imposed by other professions. Washington University Law School’s Associate Dean Robert Kuehn developed this table (p. 43) comparing educational requirements in eight professions. All of the non-law fields, ranging from medicine to architecture, devote between one-quarter and one-half of their professional curriculum to practice-based or clinical education. The California proposal, in contrast, would absorb about one-sixth of the law school curriculum–and only about one-tenth for students who choose to earn some of their practice-based competencies in the workplace. That’s a pretty modest commitment.
Conclusion
Some law schools are already embracing the benefits of California’s proposed requirements. Jeffrey Baker, Pepperdine’s Director of Clinical Education, notified me that Pepperdine will require all of its law students to complete 15 hours of “practice-based, experiential course work,” starting with the Class of 2017. Pepperdine’s dean, former Chief Judge of the US Court of Appeals for the Tenth Circuit Deannell Reece Tacha, urged her faculty to adopt the requirement.
The California proposal won’t require other schools to change their graduation requirements; the practice-based condition applies only to law graduates who seek admission to the California bar. Some students attend law school without any intention to practice law; they need not satisfy the California rule. Pepperdine’s action, however, confirms my own perspective: requiring 15 credits of practice-based, experiential education–with conceptual development, individual performance, feedback, and self-assessment–is sound educational policy for any law school.
Kudos to California
August 12th, 2015 / By Deborah J. Merritt
In February 2012, the California Bar Association appointed a task force to “examine whether the State Bar should develop a regulatory requirement for a pre-admission competency training program.” The group, dubbed the “Task Force on Admissions Regulatory Reform” (TFARR), oversaw hearings, deliberations, and consultations with key constituencies. It issued an initial report in 2013, which was adopted by the bar association’s board of trustees, then held a second round of hearings and deliberations to refine the recommendations for implementation.
That second report has been approved by the bar and awaits action by the California Supreme Court. What’s noteworthy about all of this? If approved, law graduates seeking to join the California bar will have to meet three new requirements. Law schools around the country will also have to help their California-bound students satisfy the first requirement: demonstrating completion of “15 units of practice-based, experiential coursework.”
I see both positives and negatives in the California proposal but, on balance, it’s a strong step forward. The proposal is a lengthy one, so I will explore it in several posts. To start, here are the features I find most appealing:
Process
The TFARR reports suggest a very thoughtful process. Academics and practitioners seem to have spent a lot of time talking with one another, as well as pondering what would be best for clients. The final report carefully considers objections from various stakeholders (especially law schools) and responds to them. I think we should listen to what the California task force has to say, not just because the state is big and diverse, but because intelligent people devoted a lot of attention to this proposal.
Practice-Based Experiential Coursework
For academics, the most controversial part of the California proposal is its requirement that students complete “15 units of practice-based experiential coursework . . . designed to foster the development of professional competencies.” The requirement is more demanding than the ABA’s recent mandate that students complete 6 hours of “experiential” courses; this difference has drawn strong opposition from some law school deans.
But let’s look more closely at the terms of the California proposal. Students can fulfill 6 of the 15 units through work with outside employers–including paid positions with private firms. This is an innovative idea that I explore further below.
California also allows students to count fractional parts of an academic course, as long as the course offers at least a half credit of the “practice-based experiential coursework” described in the requirements. In my 4-credit Evidence course, for example, I could devote one-eighth of the semester to an exercise (or a set of 2-3 exercises) that would allow my students to explore evidentiary principles in the context of motion writing, fact gathering, negotiation, ethical quandaries, or other professional work. I know professors who already do this, with appropriate feedback and reflection; it’s a great way to teach evidence. Courses structured like this would generate 1/2 credit toward the California requirement.
The California Task Force, furthermore, does an excellent job of defining the educational experiences that develop professional expertise. Too many professors still assume that “practice-based” courses consist solely of finding the courthouse, filing some papers, and listening to war stories from adjuncts.
As the California report suggests, those images are far from the truth. First-rate professional education draws from decades of cognitive science work illuminating the ways in which professionals develop expertise. That science, like the TFARR report, recognizes that there are four keys to cultivating expertise: teach the conceptual underpinnings, give students an opportunity to apply concepts in novel settings, provide feedback, and encourage student reflection.
Those parameters describe first-rate teaching, and it is especially appropriate to use those techniques to teach the competencies described in the California report. As knowledge of legal doctrine spreads rapidly through the population, lawyers’ professional expertise depends increasingly on their ability to apply that doctrine in the context of expert interviewing, counseling, cost-benefit analysis, and project management. Those skills are not trivial add-ons; they are complex cognitive activities that lawyers need to know and integrate with their knowledge of legal doctrine.
Is 15 Hours Too Much?
A prominent group of deans has objected to the California proposal partly on the ground that a 15-hour requirement is too much, too soon. But from a client’s, employer’s, or student’s perspective, it’s hard to believe that 15 hours of practice-based education is too much.
First, we’re talking about high-quality educational experiences, ones that provide both conceptual development and feedback. Courses that satisfy the California requirements will embody top-of-the-line pedagogy. Second, these educational opportunities will occur in just the areas where clients and employers find lawyers deficient.
Finally, and perhaps most important, these are the areas in which lawyers have the most potential to demonstrate their value. Clients can find legal doctrine on the web, through courthouse self-help materials, and through online services like Just Answer. Businesses increasingly have turned to compliance officers, human resource specialists, and other non-lawyers for help with legal doctrine. The potential advantage that lawyers hold over these competitors is the ability to integrate legal doctrine with lawyering-specific skills like interviewing, counseling, problem solving, and project management.
Lawyers have a special way of doing all of those things; we don’t interview like cops or counsel like social workers. But we need to teach students those ways, explore the concepts that undergird them, and help students practice. No one is born “interviewing like a lawyer.”
If we don’t give students a foundation in more of the skills that are special to our profession, we will hamper their ability to succeed in a competitive market. Knowledge of legal doctrine used to be lawyers’ competitive advantage; now it is the combination of that knowledge with other lawyer-specific skills.
Will these 15 hours diminish the amount of legal doctrine that law students learn? To some extent, but not nearly to the extent that critics seem to fear. Many professors already use practice exercises to teach advanced areas of legal doctrine; sophisticated concepts are hard to grasp without that contextual application. To the extent we lose some doctrinal principles along the way, that’s consistent with the traditions of legal education: we aim to teach fundamental cognitive processes that students can apply throughout their professional careers.
Clerkships and Apprenticeships
One of the most intriguing aspects of the California proposal is its creation of clerkships or “apprenticeships” that can fulfill up to 6 units of the practice-based education requirement. The rules for these experiences are different than those imposed by the ABA for credit-bearing externships. Most notable, students can be paid for these experiences. Summer and school-year jobs, in other words, can count. To do so, the employer must provide “an orientation session, active supervision, a system for assignments, timely oral and written feedback, a diversity of tasks and an opportunity for reflection.”
Once again, TFARR hits the nail on the head in terms of developing professional expertise. These requirements are just the ones that cognitive scientists have identified as essential for developing professional competency. If employers and schools take these requirements seriously, students will have much more educationally enriching workplace experiences. Many jobs already contribute to students’ education, but ones that follow these rules will add considerably more value.
Will law schools and employers take these requirements seriously? As professionals, we will be bound to do so; as educators, we should be eager to improve the quality of our students’ workplace experiences. On the employer side, I think that employers will discover a self interest in following these rules. These rules offer a template for educating new lawyers, one that many employers lack. If employers follow the California principles, I think they will realize enhanced productivity from their law students–as well as greater value from the graduates they hire more permanently.
At the very least, this is an experiment well worth trying. The California apprenticeship model lays the foundation for new types of collaboration between law schools and employers. That’s an outcome that could benefit schools, students, employers, and clients in myriad ways.
Clients
Let’s finish with clients, who are the focus of our professional obligations. Why does the California proposal help clients?
Lawyering is incredibly hard. It requires a wide range of knowledge, many interpersonal skills, and an ability to juggle very different inputs while problem solving (What does the client say she wants? What does she really want? What will the law allow? Could I change that law if I challenged it? Is the key fact I’m assuming true, or did that witness lie? How much time will my employer let me spend on all of this?)
The outcomes of this difficult task seriously affect other people’s lives. People go to prison, they lose custody of their children, they forfeit their businesses and homes. Or, sometimes, they prove their innocence, expose a civil rights violation, buy a dream home, or create a business that benefits an entire region.
Given the importance of our work to clients, combined with the difficulty of our tasks, we can never be complacent about legal education. We joke about how slowly law schools change, but it’s no joke. Schools have made many laudable changes during the last 35 years, but we were playing catch-up on many of them.
Every year, we ask our first-year students to stretch their minds and work harder than they’ve ever worked before. We need to do the same. Will we have to stretch ourselves to provide the opportunities required by the California proposal? Maybe, but it’s time for that stretch.
Like our students, we can learn to think in new ways and we can push ourselves to achieve more–so that they and their clients can achieve more. Let’s just do it.
Thin Skins
August 3rd, 2015 / By Deborah J. Merritt
Appellate judges sometimes complain about the “negative bias” in law review articles. “Scholars don’t write about what we do right,” the judges grumble. “They only write when they think we’ve gotten something wrong.”
I can think of exceptions to this tendency, but I think the judges are largely right. There’s not much point to an article that praises a judicial opinion; the opinion speaks for itself. Colleagues and tenure reviewers, moreover, won’t be very impressed by an article that simply extols a court’s reasoning; we want evidence of the professor’s critical thinking. At the very least, that means the scholar should suggest an alternative ground for the court’s decision. Academic scholarship slants toward the critical.
The same is true when the media cover legal education, but law professors don’t like it one bit. In faculty lounges and blogs across the country, professors complain about the media’s bias against legal education. The press occasionally carries a story that paints law school in a positive light, but most of the stories are critical. When it comes to criticism, legal educators seem much better at giving than receiving.
Is This Different?
Is there a difference between the negative bias in legal scholarship and the critical slant in media reports about legal education? Some professors suggest that the media have a venal motive for their negative stories: criticism sells. That motive, however, is not so different from the one that motivates us as scholars to criticize more often than we praise. Our payments are tenure, promotion, respect–and the increased salaries that flow from those reputational enhancements. Even if we care more about reputations than dollars, we have personal motives that push us towards criticism.
Other professors might distinguish our academic critiques from media “hatchet jobs” by pointing to the conflicting policies that surround important judicial decisions. Resolutions that balance competing interests are inherently debatable; scholars perform a worthwhile public task when they examine the downsides of a court’s balance.
Legal education, however, also balances competing priorities. We weigh the time devoted to scholarship and teaching. We decide how much to invest in clinics and how much to allocate to seminars. We make curricular and cultural choices that signal the relative importance of serving business clients and individual ones. We determine whether to give scholarship dollars to students with high LSAT scores or to those with few financial resources.
These decisions affect the public interest: They shape the type of lawyers we graduate, the clients they choose to serve, and the skills they bring to that service. We may think we’ve struck all the right balances, but the public may not agree. The policy choices we make are as debatable as those that courts adopt.
“But,” some of my media-irritated colleagues complain, “the media don’t know anything about legal education. They write–and criticize us–out of ignorance. When we write about judicial opinions, we draw upon our extensive knowledge of the law.”
This is a fair distinction, but it points to the importance of media criticism rather than its unfairness.
The Duties of an Autonomous Profession
Law is an autonomous, self-regulated profession. We decide what counts as law practice, who gets to engage in that practice, and the type of education those practitioners receive. The public has almost no role in deliberating or deciding these matters.
The legal profession’s autonomy is particularly strong, because courts determine most of the rules that govern us. Judges are lawyers; most of them come from law practice, and many (especially in states with electoral systems) return to practice. Doctors must submit to regulation by judges and legislators, both groups that lack medical credentials. We submit primarily to regulation by our own kind.
Law schools benefit from two rings of autonomy. As educators, we vigorously defend our autonomy against the practicing bar. We claim superior knowledge of how to educate future lawyers, and we regularly assert that superiority in debates with the bar. Even when we succumb to pressure from practitioners, however, we still operate within the protected walls of the legal profession. Prospective clients and the public have very little say in what we do.
Members of the public have just two ways to affect the policy choices made by lawyers and law schools. One is through their purchasing power. If potential clients dislike the services provided by lawyers, or the prices charged by those lawyers, they can bargain for better/cheaper services, forego those services, or substitute services from unlicensed providers. Prospective law students, similarly, can negotiate for higher scholarships or pursue alternative careers if they don’t like the options offered by law schools.
All of this is happening in today’s market, but these consumer choices are a blunt instrument. Lawyers, after all, define the “practice of law” so we have the power to close down unlicensed providers. Law schools, meanwhile, offer the sole gateway to the profession in most states. These monopolies–over both services and education–limit the power of market signals. We may be feeling the market’s pinch in law practice and legal education, but the pinch would be stronger without our professional protections.
Equally important, market forces can’t tell us why prospective clients or law students are dissatisfied. Is it just a matter of price? Or do they want services/education in a different form?
To raise these issues, the public must turn to its second avenue for affecting policy choices in legal education and the profession: public criticism. Through blogs, mainstream media, and cocktail party conversations, the members of the public tell us their concerns about legal services and legal education.
Some of those concerns are misplaced; others suffer from ignorance. Most of us are guilty of the same faults when we criticize medical care, software design, or highway construction projects. Experts in every field put up with a lot of flak from lay consumers–who often compound their insults by acting as if they know more than the experts.
The flak, however, includes key insights–and it’s our duty as professionals to sort through the criticism for the points that matter. Experts know a lot, but they don’t know everything: Our very expertise can blind us to consumer needs and avenues of innovation. Self interest and professional pride can also make us resistant to calls for change. These dangers are particularly severe in a field–like law–where professionals regulate themselves.
Sociologists argue that professionals have a duty to accept public criticism with grace and thoughtfulness. That duty stems from our underlying societal bargain: We receive the power of self regulation in return for a promise to exercise that power in the public’s interest. We can’t fulfill our terms of the bargain if we’re not willing to listen to public criticism.
Responding to Criticism
I agree with the sociologists. As members of a self-regulating profession, we have a duty to listen carefully to public criticism. We don’t have to embrace every critique, and we certainly should correct misstatements. We should also explain why we do things the way we do, and we can invite the public to engage in dialogue with us.
But let’s stop whining about the criticism itself–just as most savvy judges have learned to hold their fire in the face of law review criticism. Public criticism is a sign that we matter. People care about the structure of the legal system, the accessibility of legal services, and the quality of the lawyers who serve them. We should care enough about what they think to listen courteously, clear up misunderstandings, and (every now and then) admit that they have a point.
Can We Close the Racial Grade Gap?
July 25th, 2015 / By Deborah J. Merritt
In response to last week’s post about the racial gap in law school grades, several professors sent me articles discussing ways to ameliorate this gap. Here are two articles that readers may find useful:
1. Sean Darling-Hammond (a Berkeley Law graduate) and Kristen Holmquist (Director of Berkeley’s Academic Support Program), Creating Wise Classrooms to Empower Diverse Law Students.
2. Edwin S. Fruehwald, How to Help Students from Disadvantaged Backgrounds Succeed in Law School.
Another excellent choice is Claude Steele‘s popular book, Whistling Vivaldi. Steele, who is currently Executive Vice Chancellor and Provost at UC Berkeley, is a leading psychology researcher. He originated the phrase “stereotype threat,” which explains a key cognitive mechanism behind the reduced performance of minority students in higher education. In his book, Steele offers highly accessible explanations of this mechanism.
Even better, the book describes some experimentally tested approaches for reducing stereotype threat and improving performance of minority students. The psychologists have not found a magic tonic, but they are pursuing some promising ideas.
How Hard Will It Be?
Many of the ideas offered by Steele, Darling-Hammond, Holmquist, and Fruehwald rest on principles of good teaching. We should, for example, teach all of our students how to read cases and analyze statutes, rather than let them flounder to learn on their own. The analytical skills of “thinking like a lawyer” can be taught and learned; they are not simply talents that arise mysteriously in some students.
Similarly, we should cover the basics in our courses, explaining the legal system rather than brushing over those introductory chapters as “something you can read if you need to review.” The latter approach is likely to increase stereotype threat, because it suggests “you don’t belong here and you’re behind already” to students who lack that information. Besides, you’d be surprised how many law students don’t understand the concept of a grand jury–even when they take my second-year Evidence course.
Positive feedback and formative assessment are also important tools; these techniques, like the ones described above, can benefit all students. They may be especially important for minority students, however, who are likely to suffer from both social capital deficits (i.e., lack of knowledge about how to study for law school exams) and culturally imposed self doubts. By giving students opportunities to try out their law school wings, and then offering constructive feedback, we can loosen some of the handicaps that restrain performance.
Harder Than That
These approaches, as well as others mentioned in the articles at the beginning of this post, are worth trying in the classroom. I think, though, that it will be much harder than most white professors imagine to remove the clouds of stereotype threat.
In law schools, we like to imagine that racial bias happens somewhere else. We acknowledge that it occurred in the past and that some of our students still suffer inherited deficits. We also know that it happens in communities outside our walls, where bad things of all types happen. We may also concede that bias occurs in earlier stages of education, if only because many minority students attend low-performing schools.
We assume, however, that racial bias stops at our doors. Law schools, after all, are bastions of reason. Just as we refine “minds full of mush” to sharp analytic instruments, we surely wipe out any traces of bias in ourselves and out students.
This is a dangerously false belief. Race is a pervasive, deeply ingrained category in our psyches. The category may be cultural, rather than biological, but both science and everyday experience demonstrate its grip on us.
Humans, moreover, are exquisitely expressive and acutely sensitive. Micro expressions and body language convey biases we don’t consciously acknowledge. Other people receive those signals even more readily than they hear our spoken words. Reading the psychology literature on implicit bias is both humbling and eye opening. When designing cures for the racial grade gap, we need to grapple with our own unconscious behaviors–as well as with the fact that those of us who are white rarely know what it feels like (deep down, every day) to be a person of color in America.
For Example
Here’s one example of how difficult it may be to overcome the racial gap in law school grades. One useful technique, as mentioned above, is to give students supportive feedback on their work. To help minority students overcome stereotype threat, however, the feedback has to take a particular form.
On p. 162 of his book, Steele describes an experiment in which researchers offered different forms of feedback to Stanford undergraduates who had written an essay. After receiving the feedback, conveyed through extensive written comments, students indicated how much they trusted the feedback and how motivated they were to revise their essays. Importantly, students participating in the study all believed that the reader was white; they also knew that the reader would know their race because of photographs attached to the essays. (The experimental set-up made these conditions seem natural.)
White students showed little variation in how they responded to three types of feedback: (1) “unbuffered” feedback in which they received mostly critical comments and corrections on their essays; (2) “positive” feedback in which these comments were prefaced by a paragraph of the “overall nice job” kind; and (3) “wise” feedback in which the professor noted that he had applied a particularly high standard to the essay but believed the student could meet that standard through revision. All three of these feedback forms provided similar motivation to white students.
For Black students, however, the type of feedback generated significantly different results. The unbuffered feedback produced mistrust and little motivation; the Black students believed that the reader had stereotyped them as poor performers. Feedback prefaced by a positive comment was better; Black students were more likely to trust the feedback and feel motivated to improve. The wise feedback, however, was best of all. When students felt that a professor recognized their individual talent, and was willing to help them develop that talent, they responded enthusiastically.
Some researchers refer to this as the “Stand and Deliver” phenomenon, named for the story of a high school teacher who inspired his underprivileged Mexican-American students to learn calculus. Professors who set high standards, while conveying sincere signals that minority students can meet those standards, can close enormous achievement gaps.
Sincerity
The key word in the previous paragraph is “sincere.” To overcome stereotype threat and other forces restraining our minority students, it’s not enough to offer general messages of encouragement to a class. That worked for Jaime Escalante, the teacher who taught his disadvantaged students calculus, because he was talking to students who all suffered from disadvantage. Delivering the same message to a law school class in which most students are white won’t have much impact on the minority students. The minority students will assume that the professor is speaking primarily to the white students; if anything, this will increase stereotype threat.
Nor will individualized messages work if they follow our usual “overall nice job” format. I cringed when I read those words in the study described by Steele. How often have I written those very words on a paper that needed lots of improvement?
Instead, we have to find ways to convey individually to minority students that we believe they can meet very high standards. That’s a tough challenge because many of us (especially white professors) suffer from implicit biases telling us otherwise. Even if we use the right words, will our tone of voice, micro expressions, and body language signal those unconscious doubts?
Moving Forward
Some readers may dismiss my worry about unconscious bias; they may be certain that they view students of all races equally. Others may be discouraged by my concern, feeling that it is impossible to overcome these biases. Indeed, Steele and others have documented a phenomenon in which whites avoid close interactions with minorities because they fear that they will display their unconscious bias.
A third group of readers may whisper to themselves, “she’s overlooking the elephant in the room. Because of affirmative action, minority students at most law schools are less capable than their white peers.” That potential reaction is so important that I’ll address it in a separate post.
For now, I want to offer this thought to all readers: This will be hard. If we want to close the racial grade gap and help all students excel, we need to examine both our individual and institutional practices very closely. Some of that may be painful. If we can succeed, however, we will achieve a paramount goal–making our promises of racial equality tangible. Our success will affect, not only the careers of individual students, but the quality of the legal profession and the trust that citizens place in the legal system.
I will continue blogging about this issue, offering information about other cognitive science studies in the field. For those of you who would like to look at the study involving written feedback (rather than just read the summary in Steele’s book), it is: Geoffrey L. Cohen, Claude M. Steele & Lee D. Ross, The Mentor’s Dilemma: Providing Critical Feedback Across the Racial Divide, 25 Personality & Social Psychology Bulletin 1302 (1999).
If you want to explore the field on your own, use the database PsycINFO and search for “stereotype threat” as a phrase. Most universities have subscriptions to PsycINFO; if you are a faculty member, staff member, or student, you will be able to read full-text articles for no charge.
More on Paid Clinical Externships
July 17th, 2015 / By Deborah J. Merritt
I’ve posted before about my support for a proposed change in Interpretation 305-2 of the ABA’s accreditation standards for law schools. The proposal would allow law schools to offer externship credit for paid positions. Today I sent an admittedly tardy letter to the Council, expressing the reasons for that support. For those who are interested, I reproduce the text below:
Dear Council Members:
I apologize for this late submission in response to your request for comments on the proposed change to Interpretation 305-2. I strongly support the proposed change, which would allow law schools to choose whether to offer externships with paid employers.
I have been a law professor for thirty years, teaching doctrinal, legal writing, and clinical courses. I also have a research interest in legal education and have published several articles in that field. My current interest lies in learning how lawyers develop professional expertise and in designing educational programs that will promote that development.
From my personal experience, as well as reviews of the cognitive science literature, I have no doubt that externships are a key feature of this development. Externships alone are not sufficient: In-house clinics provide pedagogic advantages (such as the opportunity for close mentoring and regular reflection) that externships are less likely to offer. A program of in-house clinics complemented by externships, simulations, and other classroom experiences, however, can offer students an excellent foundation in professional expertise.
When designing an educationally effective externship, the employer’s status (for-profit, non-profit, government) and student’s financial arrangement (paid or unpaid) are not relevant. This is because the educational institution controls the externship requirements. If an employer offering a paid externship balks at the school’s educational requirements, the school can (and should) refuse to include that employer in its program.
The key to educationally sound externships is close control by the academic institution. I suspect that some law schools (like other academic institutions) do not devote as much attention to externships as they should. The greater the school’s collaboration with the employer, the better the externship experience will be. This problem, however, applies to both paid and unpaid externships. The educational potential of externships does not depend upon the amount of pay; it depends upon the school’s willingness to supervise the externship closely—-and to reject employers that do not create suitable learning experiences.
Employers who pay law students may decide that they don’t want to participate in externship programs; they may find compliance with the program’s requirements and paperwork too onerous. This is not a reason to reject paid externships; it is an assurance that they will work properly. If an employer is willing to pay a student and comply with the pedagogic requirements of a good externship program, we should rejoice: This is an employer eager to satisfy the profession’s obligation to mentor new members.
This brings me to the major reason I support the proposal: Permission of paid externships will allow innovative partnerships between law schools and the practicing bar. As members of a profession, lawyers have a duty to educate new colleagues. Our Rules of Professional Conduct, sadly, do not explicitly recognize this duty. The obligation, however, lies at the heart of what it means to be a profession. See, e.g., Howard Gardner & Lee S. Shulman, The Professions in America Today: Crucial But Fragile, DAEDALUS, Summer 2005, at 13.
Our profession lags behind others in developing models that allow practitioners to fulfill their educational duty while still earning a profit and paying their junior members. Law school clinics and externship supervisors possess a wealth of experience that could help practitioners achieve those goals. Working together to supervise paid externships would be an excellent way to transfer these models, improve them, and serve clients.
I deliberately close by stressing clients. Many of our debates about educational practices focus on the interests of law schools, law students, and employers. For members of a profession, however, client needs are supreme. We know that an extraordinary number of ordinary Americans lack affordable legal services. We also know that businesses are increasingly turning to non-JDs to fill their legal needs as compliance officers, human resources directors, and other staff. If we want to create a world in which individuals and businesses benefit from the insights of law graduates, then we have to design educational models in which new lawyers become professionals while they and their mentors make a living.
Thank you for your attention. Please let me know if I can provide any further information.
Deborah J. Merritt
John Deaver Drinko/Baker & Hostetler Chair in Law
Moritz College of Law, The Ohio State University
Honoring Obergefell
June 28th, 2015 / By Deborah J. Merritt
I’m elated by the Supreme Court’s decision in Obergefell. The decision affirms so many things I value: marriage, human bonds, tolerance, and constitutional principle. The decision also demonstrates the role that law plays in pushing us to examine prejudices; it gives me hope for further progress.
I value even the negative reactions to the opinion: they remind us that courts and legislatures maintain a delicate balance in a democracy like ours. I believe that the Obergefell majority properly interpreted and applied the Constitution but, to borrow a word from a different inspiring source, raucous discussion of our constitutional process is an essential part of that process.
Obergefell, of course, will jump into the law school curriculum. Professors and students will debate the majority’s reasoning, as well as the dissents’ attacks. They will explore Obergefell‘s implications for tax, family law, and other subjects. Even my Evidence book will include Obergefell in its summer supplement; it’s time to update the discussion of marital privileges.
All of this is as it should be. I challenge law schools, however, to take another, more difficult step in honor of Obergefell: to use this occasion to recognize how poorly we serve clients in the family law field.
Legal Needs
Marriage, as Obergefell recognizes, is one of our most important legal institutions. Marital status affects rights and duties related to “taxation; inheritance and property rights; rules of intestate succession; spousal privilege in the law of evidence; hospital access; medical decisionmaking authority; adoption rights; the rights and benefits of survivors; birth and death certificates; professional ethics rules; campaign finance restrictions; workers’ compensation benefits; health insurance; and child custody, support, and visitation.”
Couples need legal assistance to maintain this key status, to implement it, and (if necessary) to dissolve it. Yet hundreds of thousands of individuals cannot obtain that legal assistance. For many, the assistance is too expensive. For others, it is cumbersome or intimidating to obtain. Studies of the family law system reveal shocking gaps in legal assistance: In Milwaukee, 70% of family law litigants lack counsel. In California, 80% of family law cases include at least one pro se litigant. In Philadelphia, 89% of child custody litigants proceed without counsel. No city or state has produced a report showing that its residents are able to satisfy their legal needs in family-related cases.
Whose Problem Is It?
We’ve talked for decades about addressing these legal needs through increased legal aid funding or enhanced pro bono efforts. But governments are already struggling to balance budgets, and taxpayers show little inclination to raise taxes. Lawyers praise pro bono, but our efforts chronically fall far short of our rhetoric. Many of us lack the skills and experience needed for effective family law representation.
To solve the legal crisis affecting families, we need to start in law school. We need to champion the importance of representing individuals with family-related legal needs. Divorce, child custody, and other domestic relations work have languished at the bottom of the status heap in law practice. If we believe in Obergefell, it’s time to change that.
We have to teach students the skills they need for success in family law practices. This is a tough practice area, with particularly challenging issues of client counseling, negotiation, and ethical responsibilities. Doctrine matters in this area, but so do skills. Family law practitioners are already struggling to serve their clients and make ends meet; we can’t rely on them to educate law graduates on the skills they missed in law school.
Equally important, we need to devise systems that deliver these essential legal services more efficiently and economically. Researchers, educators, and practitioners should work together to design new systems and test their impact. Unbundled services? Limited license professionals? Online resources? Prepaid plans? What combination of these approaches–and others–will best meet the needs of potential clients?
Professional Responsibility
Lawyers own the legal profession. We control entry, education, and practice. Society allows us to bar others from performing our work. That ownership confers a responsibility: to operate the profession in a manner that assures access to needed services.
Legal educators sometimes stand apart from the profession, forgetting our key gatekeeper role–and the financial benefits we derive from that status. We are the ones who choose potential lawyers and chart their course of study. We also have the resources to research new methods of delivering legal services. We, along with other lawyers, bear responsibility for persistent flaws in the legal system. It’s time to act on that responsibility.
Access to Justice
It may seem odd to honor Obergefell by discussing a practice area that reflects the heartaches of marriage more often than its joys. I hope that none of the couples who marry in the coming months will ever separate, fight over their children, or suffer domestic abuse. But at least some of them, both same-sex and opposite-sex, will.
The legal system recognizes grand ideals of justice, but it also acknowledges our human weaknesses. We make mistakes. We commit crimes. We break contracts. We abandon our partners and fight over our children. Sometimes we even abuse the people we love most.
Laws exist to cope with all of our mistakes. In the family law system, a good attorney can help change personal tragedy to a new beginning. At the very least, an attorney can mitigate the damage. But today, a majority of Americans face these personal and legal tragedies without sufficient guidance. It’s up to us–the gatekeepers, educators, and researchers of the legal system–to design a better system.
The Challenge
I challenge every law school to create a clinic or post-graduate firm focused on family law issues. If you already have one, make it better. Encourage faculty to work with practitioners, designing and testing new systems of delivering legal services. If none of your current professors are interested in improving the delivery of legal services, hire one who is. Teach students that family law is an essential area of law practice, and help them create sustainable practices. Enforce the promise of justice for everyone who has ever been part of a family.
Fee Shifting
June 14th, 2015 / By Deborah J. Merritt
I recently interviewed Pete Barry, a lawyer who represents plaintiffs suing debt collection agencies for violations of the Fair Debt Collections Act (FDCA). You can listen to the interview in this “I Am the Law” podcast.
Pete is quick to acknowledge that his clients should pay their debts; he’s not in the business of shielding deadbeats. At the same time, Congress found that abusive debt collection causes job losses, marital breakups, and bankruptcies–all events that hinder debt repayment. To prevent these outcomes, Congress outlawed some debt collection practices.
Rather than create an agency to police debt collection, Congress chose to rely upon private enforcement. When a plaintiff establishes an FDCA violation, she recovers actual damages, court-ordered compensation of up to $1,000, court costs, and an attorney’s fee.
The fee shifting produces some eye-opening results. As Pete explains in the podcast, many defendants know that they’ve crossed the line and are willing to settle. Unless the plaintiff has provable actual damages, she may recoup only $1,000 through settlement. Pete’s court-approved hourly rate, however, is $450. He tracks his time carefully and defendants pay those bills when they settle. Even an easy case can generate $4,500 in attorney’s fees.
Did You Learn This in Law School?
Pete’s practice intrigues me because of its business model. Rather than rely upon clients to pay his bills, Pete built his practice around a federal fee-shifting statute. He notes that there are many such statutes, and that too many lawyers overlook them when designing a practice.
After talking to Pete, I realized that law schools also overlook these statutes. Some fee-shifting laws, particularly those related to civil rights, appear in the law school curriculum. Even courses teaching those statutes, however, tend to focus on substantive rules rather than the potential for attorney’s fees.
When we do talk about attorney’s fees in law school, we usually discuss the policies surrounding fee shifting. We may use noble language like “creating private attorneys general,” but we rarely analyze the potential for these statutes to create a viable law practice.
Vindicating Congressional Policies
Congress didn’t create fee-shifting statutes to support lawyers. Instead, these statutes protect important interests–primarily ones held by the poor and middle class. Potential plaintiffs have suffered from our lack of attention to these statutes.
Imagine if the required 1L year included a course on fee-shifting statutes. That course would deepen students’ knowledge of statutory law, highlight rights that Congress (or state legislatures) considered important enough to enforce through attorney’s fees, and expose students to injuries that disproportionately affect poor, middle class, and minority clients. The course would also remind students that legal remedies aren’t free and most lawyers earn their living from private clients.
I doubt that many law schools (if any) would add my proposed course to the first-year curriculum. Just imagining such a course, however, helps me see the distortions in the current curriculum. Our traditional courses help students master fundamental legal concepts, like negligence or breach of contract. I suspect, however, that we could teach the same concepts through modern statutes–and perhaps give students better grounding in the statutory remedies that define most contemporary legal rights.
At the same time, we would focus students on a fact that is fundamental to both the rule of law and their future as practicing attorneys: Lawyers can’t promote justice unless someone pays their bills. If law schools paid closer attention to this truth, including the business side of law practice, we might widen the scope of legal services.
The Appellate Classroom
June 12th, 2015 / By Deborah J. Merritt
Critics of legal education often note the primacy of appellate law in law school classrooms. Our doctrinal courses, after all, rest primarily on appellate opinions. But the focus on appellate advocacy is even more pervasive than this: Our “Socratic” questioning follows the cadence of an appellate argument.
The professor stands at the front of the room, often on an elevated platform. She poses a question, which a single student addresses. Some questions involve the facts of the underlying case; others address application of the legal principle to other alternative fact patterns. After the student answers, the professor poses another question.
If you doubt the similarity to an appellate argument, try this experiment: Attend an appellate argument in a local courthouse, then witness a traditional law school class later the same day. I once did this, entirely by accident, and I was astounded by the similarities.
Preparation for Lawyering
Our doctrinal courses thus give students repeated practice for appellate lawyering. Their raw materials are appellate cases, and classroom discussion resembles oral argument. The legal reasoning conducted in doctrinal classes consists of reconciling precedents and applying them to new fact patterns.
Some of my colleagues argue that the latter task prepares students for other types of practice. We may, for example, ask a student: “How would you counsel your client to respond to this decision?” Or, “what if you advised a client to do X? Would that fall within the court’s holding here?”
These questions, however, are like the ones that appellate judges ask as they probe the doctrinal reach of a possible holding. The substance is the same as questions asking “if I accept your argument, how would that affect individuals who do X?” Or, “how will clients change their practices if we adopt your interpretation of the statute?”
These questions about “advising clients” do not give students practice in client counseling. If a lawyer were representing a real client, the answer to the above classroom questions would be something like: “It depends how much the client has to spend, both on legal representation and on modifications to her business. It also depends on how much the client cares about Y rather than Z. I’d also need to ask the client about potential alternatives.”
Experiential Education
It’s essential to recognize these facts about doctrinal classes as law schools embrace more experiential types of learning. Many types of experiential learning aid doctrinal understanding; I use simulations and other exercises in my Evidence course for just that purpose.
Most of these exercises, however, do not redress the appellate tilt in our classrooms. We need much more fundamental shifts in doctrinal courses to accomplish that. Alternatively, we need to expand the time devoted to simulations and clinics that focus on lawyering outside the appellate practice.
Very few law school graduates find work as appellate lawyers. Most clients need other types of assistance. In order to serve both those students and their clients, legal educators need to reduce the dominance of appellate lawyering in our curriculum. How do lawyers use doctrine and interact with client outside of that setting? That question lies at the root of constructive pedagogic change.
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