The Future of Legal Education, Day 2

by Paul Maharg on 24/02/2008

Arrived late to the first session (talking to conference-goers), to find Kate Lauchland in full flow: funny, shrewd, accurate.  Eg on challenges: the God Professor who will not play nicely with others; dumping integrated components, failure to draw connections, time, avoiding lip service, more time…  She advised us to start small and build on success.  Make sure profession is aligned with changes being carried out.

After Gary Davis gave us a heads-up on the work of the Carrick Institute, next up was Jeff Giddings, who focused on how implementation was carried out in a process of systematic curriculum renewal.  The Griffith review process that he led was conducted over 18 months, with a consultative approach, focusing on limiting workloads where possible. Implementation was a four-year process, plus evaluation.  There were transition arrangements in place to ease the change.  For instance, every team needs a pedant and an obsessive; and when reflecting on curriculum renewal you need to plan on hitting the wall.  There is value in staying ahead of the field; and you need to accept it won’t be perfect on Day One, and will be reviewed.  Change is uncomfortable, but forced change is much worse.  On the subject of relationship of core and elective programmes, sequencing is very important.  As regards assessment issues, he warned against over-assessment.  Skills teaching, Jeff warned, was likely to be a significant area for American law schools in the light of Carnegie.  A key issue to address was the likely area of staff resistance.  You also need academic staff with expertise; and you should aim for a loose fit rather than a straitjacket.  Vintage Jeff. 

In the next session David McQuoid-Mason outlined the problem facing South Africa’s Ministry of Justice in 1994, namely how to integrate two historically different systems of legal education.  David showed us how this is being done, and how, on a general level, the strategies being adopted by law schools and their deans.  Next up was a GSU student, Tiffany Williams, who took the University of Kwa-Zulu Natal, and the Clinical Law Course.  She showed how CLC incorporates all three Carnegie Report apprenticeships; and how the amount of pro bono work done in UKZN compared to the levels of pro bono work among 3Ls in the US.  A second student, Nichole DeVries, witnessed the street law programme in Durban set up in the eighties by Ed O’Brien and David McQ-M.  It is a preventative legal education programme.  It demands that law students integrate knowledge with skills, as well as serving access to justice.  It involves students giving 24 lessons in the community, and twice-weekly seminars, and the students put together a mock trial package involving trial advocacy.  Students also use reflective journals – writing, analysing and internalising.  A student survey carried out showed that communication was the most important skill; social awareness increased while professional plans stayed the same, and they learned a lot more than they thought they would.  All this accords with Carnegie.  The student concluded by saying that Street Law can be a skills and substantive exercise as well as a programme that raises social consciousness and awareness.

 

Ed O’Brien summarised the whole approach of street law, emphasising that one of the best ways to learn the law was to teach it to others.  It was a remarkable summary of the process and effects of street law programmes, as well as fitting end to a session on alternatives to the traditional law school programme.  In Q & A, David made the percipient point that Street Law programmes can help train, but the critical thing is to instil values, which is a more difficult thing to do.

The next session was organised around the theme of transforming legal education – a theme not unfamiliar to your scribe.  Suellen Scarnecchia from New Mexico Law School, first up, outlined the clinic program – all students have to take clinic, but not all staff need to teach on it – and the challenges of a required clinic.  First is the ongoing nature of the clinic 365 days a year.  Second, it includes students who have no wish to be in clinic.  Funding is also an issue ongoing.  Benefits are the outcomes (esp ethics and values in practice), though the law school will be more explicit about outcomes than they have before.  Clinics can screen out students who should not be practising law.  This is, admittedly, extreme, doesn’t happen often, but can be beneficial for the profession.  She raised the point about the profile of faculty and the tenure system not really supporting the clinic movement; with adversarial relationships between clinicians and non-clinicians, with ongoing problems about salary structures, tenure, etc.  The other argument is funding.  She didn’t accept that mandatory clinics were a problem in this regard; instead the main reason was cultural, and reputational (eg the effect of US News & World Report rankings, where elite research matters).  Status battles were holding back the integration of clinic into law school.  Deans need to create a culture where non-tenured staff can work in clinic and feel it isn’t prejudicing their tenure-track. 

Peter Joy of Washington State talked about challenging assumptions, and how can we move forward on this.  He focused not just on Carnegie but also Best Practices.  He made two assumptions: a.  Most new laywers are not as prepared as they could be to discharge the responsibilities of law practice.  b.  Signficant improvements to legal education are achievable.  He described Best Practices, its principles and its vision & roadmap.  He compared the movement for change to the Green Building movement – an analogy he attributed to Judith Wegner – which was also a loose movement with clear aims about alternatives to current building practices. 

Peter was followed by the Dean of the College of Law, U. of Idaho, Richard Henry Seamon.  This college is part of a land-grant institution, located in Moscow (pop 22,000) – so small, rural school.  They are changing to a single JD programme with an emphasis on interdisciplinary currriculum research and service, on natural resources, public lands, and American Indian law (tribal and federal).  It is split between Moscow and Boise, state capital town, with the metropolitan area programme being more flexible, offering business opportunities, IP, state-law related research and service to cit/state/federal agencies.  Carnegie, he stated, was the cement to bind the two quite different sets of content together.  In other words, common structure would enable different content to be accommodated within the single JD programme in two locations. 

He was followed by Brett McDonnell, the Dean of Minnesota Law School.  There, they focused on the first year, the biggest of changes to which was a course working with students on working with clients, and building theory through practice.  Other changes include electives that are, eg, team-taught on themes, eg critical theory.  There were problems with faculty profile and hiring issues, with the law school not necessarily having the staff required to implement simulation and clinic. 

Next up was Ed Rubin of Vanderbilt, talking of how he brought his law school into the twentieth century (modest goals…).  Process was critical for change to be brought about.  He described lawyers’ fondness for more and more process, as well as for committees, eg curriculum planning committee.  The problem with this was taking valuable faculty resource to decide on questions that they are not necessarily the best persons to decide the issues.  So at Vanderbilt, all committees were scrapped with the exception of the Appointments Committee.  Ed did this simply by not appointing to the committees.  Instead he adopted institutional isomorphism – the reiterated structures eg between federal and state governing structures.  At Vanderbilt they used this concept to spark off a process.  For the first year amendments, they had a general meeting, a retreat, and asked the question – what should a 21st century first year programme look like?  Funding was obtained from central funds.  Meetings were held, where people talked about ideas.  Regarding the upper class curriculum, it was decided to develop teaching in isomorphic ‘concentrations’, with each group focusing on governance, content structure, and the groups having a budget and an isomorphic structure analogous to the School structure. 

This day showed the heavy Australian presence at the conference – at least six papers, by my count.  Their emphasis on the necessity for curriculum design and development was timely, given the Carnegie criticism of law school design; but they also showed what they are doing as regards implementation – indeed what they’ve been doing since the early nineties.  It’s a remarkably successful record of change and change management from high-level reports to small-scale micro-implementations. – Jeff Giddings was especially good on the latter.  The South African contingent present very interesting initiatives in practical implementations, which were inspiring in their aim, extent and outcome.  The transforming session was practical, cautious, but still very useful.

I’m afraid that the next session went by in a blur.  It was on professionalism, and I was so caught up in the fascinating issues that I couldn’t really take a clear account of what was being said.  There were deep questions addressed by the panel and commented on by questions later, with John Berry in particular giving exceptional insights into the moral and administrative issues.

The final session focused on specific examples of how to transform existing law schools.  James Moliterno kicked off by describing the lessons to be learned from the founding of his school’s programme – don’t let the perfect be the enemy of the good, and much else.  Patrick Longan talked about the legal profession course at Mercer U. law school.  Lawyer professionalism is defined as competence, fidelity to the client, to the law and its institutions, to service including pro bono and promoting access, and civility.  On the course students and tutors discuss why it is important, the enforcement of values and its limits.  They discuss happiness (that many lawyers are unhappy in their profession); that happiness in the profession is related to deriving intrinsic satisfaction from the work itself.  He reinforces the positive by having students read a biography of famous judges, using oral histories, etc.  He admitted this was an ‘additive’ approach as defined by Carnegie, but that it had considerable value, nevertheless.

John Burwell Garvey then spoke about the Daniel Webster Scholar Honors Program http://www.piercelaw.edu/websterscholar/ , in Pierce Law School, New Hampshire.  He is the Director of the programme, which is an alternative to the Bar Exam – the only one of its kind. The core curriculum remained identical to the JD first year.  In the second year, there are electives that are voluntary for everyone except DWS students, which continues in third year.  They have exposure to real clients.  Their portfolios are reviewed by Bar Examiners every quarter.  After 2 years, these students effectively pass a 2 year Bar Exam…  Excellent idea.

The session was wound up by Kenneth Margolis, Case Western Reserve U School of Law, who described the clinic there, and the so-called ‘third-wave’ of clinical legal education, namely integration of clinical methods into the wider curriculum.  The basic philosophy was that law students should have training in substantive knowledge and fundamental skills, sequenced and integrated around client perspectives.  It’s called CaseARC, with a focus on professional obligations, in an expanded introductory programme.  Amongst its many features it has a focused problem-solving design.  He noted that syllabi coordination was essential – doctrine being taught just before the (part of the) simulation that was based upon it.  The sims are highly collaborative.  In the third year there are capstone experiences in a third year clinic.  The challenges include balance in doctrinal teaching vs skills training, student acceptance, cost, team teaching challenges, formative and summative evaluation, and grading. 

The day was wound up by GSU Dean Kamenshine, who thanked Clark for putting on a successful conference — a thanks warmly echoed by the delegates

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