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Law, Legal Education, and Imagining the Future: The Project Continues, Part 5


“The Futures of Legal Education: A Virtual Symposium” is the title of the program convened by Dean Dan Rodriguez at Prawfsblawg for the month of March 2018, eliciting critiques of and extensions of the ideas organized in the provocations posted in December 2017 as “An Invitation Regarding Law, Legal Education, and Imagining the Future.” [Part I, here] [Part II, here] [Part III, here] [Part IV, here] [Part V, here] [And the piece in full, as a single document, from SSRN]

The symposium is organized under the “2018 Symposium: Future of Legal Ed” tag. I have collected highlights from all of the posts, approximately 10 posts at a time. The first batch appears here. The second batch is here. The third batch is here. The fourth batch is here.

Ten additional posts:

“In our case, I have no doubt our ultimate reforms were far stronger than they would have been had we not tried to learn from the experience of others. Yes, law as a substantive profession is different from medicine, accountancy, or engineering. So, of course, our courses are different from theirs. But does it have to follow that the experience of our sister professions doesn’t hold directly applicable lessons for us? Not a chance.

“Hari concluded her piece by saying, ‘collaboration is not just a positive way of interacting, but a practical strategic tool. The more we can work together, learn from each other, and take steps forward informed by varying perspectives, the better we will serve our students and society.’ She couldn’t have been more spot-on. The common law is a system grounded in the experience of the ages. The premise of the precedent system is that the wheel need not be reinvented with each new case. Why shouldn’t that apply to our pedagogical lives as well?” (Ian Holloway, University of Calgary)

“The narrative on legal education won’t materially change until one or more markets get moved. And there is an ocean of distance between a good idea to better legal education and one’s ability to plan, finance, and execute that idea in a way that redistributes things that law schools care about (e.g., jobs for students, applications, philanthropic dollars, prestige, etc.). What are the odds of that happening if we approach these challenges in our familiar academic way?

“In Post 37, Mike Madison asks the question, ‘How do we bring non-academics [legal tech, legal practitioners, access to justice advocates] meaningfully into the dialogue?”

“My answer is simple. We don’t. This is because academic dialogue is not what is needed. Instead, we leave the building and visit these legal industry stakeholders in their natural environment. We bring sandwiches. We observe what is happening. And we ask thoughtful and respectful questions, so we can come closer to seeing the world through their eyes. Then we go back home and build prototypes that fit this new world. Then we repeat.

“This journey starts very messy. That is more than okay. What I am offering is a friendly admonition that our symposium won’t have an impact unless it degenerates into hard work — work likely beyond our current academic skill set, though hard work can fix that too.” (William Henderson, University of Indiana)

“Stakeholder associations should get together on a regular basis with American law schools. This is a unwieldy group to be sure, so perhaps such face-to-face meetings should be held with the Deans Steering Committee. There should be, as well, regular communication both among these associations (I expect that some of this goes on already) and with law schools. Each of these groups has a leadership structure and there are typically law deans and occasionally other administrators who are involved. However, in my long experience as a dean, law teacher, and volunteer member of a number of these groups (especially the AALS), I can report that the communication between association leadership and members can stand to be improved. In addition to this regular flow of communication, there should be sincere and serious attention to collaborative strategies. I do believe that the LSAC would not have found itself in this combative stance with regard to the Section and to many member law schools if they were functioning in accord with a wider, more deliberate strategy. And kudos to its new leader, Kellye Testy, for embarking on a major strategic planning initiative, an initiative which we can expect will bear fruit in just this way. The Section, the AALS, and other groups listed above should engage in comprehensive strategic planning more methodically and more transparently. In doing so, they will benefit from the wisdom of legal educators and law deans and will also forge greater collaboration. There is no time in the history of modern legal education where such collaboration has been more needed.” (Dan Rodriguez, Northwestern University)

“I think therefore that we can say pretty clearly that the exam and the hour-long class focus our attention on the inputs (the teaching) when we should be focusing on the outputs (the learning). And they also make us think that our product is the law degree, when it should be the lawyer who emerges at the end. As a result, these two features mean that almost any innovation that occurs within a law school is going to be pretty lame.

Luckily, there exists a simple, well-established, and well-validated pedagogical alternative that doesn’t suffer from this problem: Mastery-Based Learning (MBL).

“MBL (or Competency-Based Learning) is, as everyone knows, the approach championed by Benjamin Bloom (Learning For Mastery) and Fred Keller (A Personalized System of Instruction) in the 1960s which divides student learning into modules of instruction, and focuses on student mastery of the material one module at a time. Students only progress onto the next module once they’ve mastered the material, not because the class has “moved on.” Although the approach fell out of favor in the traditional school classroom in the 1980s and 1990s, we see echoes of it in the Montessori and Steiner approaches to schooling, and to a lesser extent in the more recent development of MOOCs.

“There are two things about MBL that interest me: (1) It’s virtually impossible to implement in the current law school environment; and (2) It allows for a lot more innovation in student learning.” (Dan Hunter, Swinburne (Australia))

“What if this were all freely available to anyone who wanted to teach and learn the law whether lawyer, law student, judge, undergrad, high schooler or pro se?

“None of these are high-tech or AI projects — they just require, time, effort and lots of law faculty collaborating and someone with some tech savvy to build and maintain the tools.

CALI publishes over 1000 web-based tutorials in 40 different subject areas. We also publish free casebooks where you can download the Microsoft Word .doc file to remix into something purpose-built for your teaching needs. We pay faculty to do these things with us because we value their time and we know that pure altruism is a complex problem of cognitive surplus (See Clay Shirky’s book of this name for more detail).

“You know who else is really good at this and, coincidentally missing from the list of stakeholder organizations?

“AALL — The American Association of Law Libraries. We need their skills, collaboration and knowledge management more than ever. No organization in legal education has so consistently worked hard at community engagement and collaborative thinking than the law libraries. They had to in the face of shrinking budgets and digital transformation. Make a place for the law librarians at the table — we will all be better for it.

“Let me conclude on one more area of legal education materials that could change legal education in a big way — bar exam study materials. It’s time this was wrenched back from commercial interests that reduce the important responsibility of quality control to base regurgitation and cute acronyms. Law schools should collaborate with the NCBE and state bar associations on the creation of a materials, lectures, multiple choice question banks such that students take the bar exam after they complete one year of law school. We are not adversaries. The last two years of law school could then be all about teaching proto-lawyers and all that messy, bar passage stuff is out of the way. Law school should not be about attaining a minimum.

“This should be easy for the amazing cohort of brilliant people we have tenured as law professors. The bar exam should be the serious rite of passage it is, but before the unqualified or unwilling have invested 3 years. We should b teaching beyond the bar’s bare minimum requirements. We need to set the bar higher and we should set it sooner.

“We can do this. The tech has never been more ubiquitous and easy to use, but creating quality content and improving it iteratively is hard work. I am an optimist, but not a tech utopianist. We can do this.” (John Mayer, CALI)

“And perhaps most importantly, I wish us not to be afraid. We have accomplished great things — people have walked on the moon, civil rights have expanded, deaths from auto accidents and cigarette smoking have decreased, and violent crime has become less prevalent. Yet during this time of positive achievement, our profession has not made nearly the kind of progress in diversity and delivering legal services to the poor that we have aspired to. Without diminishing the inspired efforts of so many of our colleagues and friends, the facts remain that, over the last 25 years, women and people of color have not advanced as far in our profession and those in need have not received as much legal assistance as we had hoped. We continue to convene commissions and promote conversations that, to my ear and eyes, seem much too similar to the meetings, talks and projects of 25 years ago. It no longer is 1995. It is time to embrace the dynamic world in which we function and move with it. Shared governance, strong leadership, new conceptions of curriculum and pedagogies, different directions for faculty organization and expectations … these are all a part of this moment. It is time to heed, boldly and assuredly, Professor Madison’s initial call to action. Middle roads may seem safe but the times, once again, are a-changing. It is time to do. Because if we don’t, others will. And we may not like what those others will do.” (Luke Bierman, Elon University)

“Dan Rodriguez’s point that the several organizations focused on supporting various aspects of legal education should collaborate well with one another and with law schools is an important one. My own view is that the level of collaboration among most of these organizations has improved dramatically in the past few years. That does not mean that there is not more room for improvement.” (Kellye Testy, Law School Admissions Council)

“I spend a lot of time in the startup community, where one of the main analysis points is “Product/Market Fit.” (PMF) One aspect of this analysis: no matter how beautiful your product, if the market doesn’t want it then you’re going to fail. So, make sure your product fits your market. (Duh.)

“Another way to think about this is to ask what is the compelling value proposition for legal education in its current form? The answer to this question should not be that the Section says that we’re the only ones allowed to offer it.

“I spend a lot of time thinking about the PMF of legal education, about the nature of the product that law schools provide and who is the market for it. And it won’t come as much of a surprise that, I think that legal education (and higher education generally) has got the PMF totally wrong. If asked, my guess is that we mostly think that our market is LSAT-takers, and our product is the JD. (Or whatever the correlates of these are in your jurisdiction.)

“But I think that our market is the entire legal services market (not the legal profession) and our product is the person who emerges at the end of our training process with the knowledge/skills/dispositions that allow them to deliver services within that market.

“A relatively straightforward sustaining innovation from this observation is the suggestion of Michael Waterstone (here and here) that law schools should diversify their offerings outside the JD to provide other law-related degrees such as LLMs in tax or undergrad programs in business law. I definitely agree with this, since it rethinks the nature of the market (and doesn’t necessarily limit our grads to the ‘legal profession’). But this isn’t going to save us. Because it misunderstands the nature of the market and the product, a connection that disruptive players are working out.

“The disruptive player which keeps me up at night is LinkedIn. Microsoft paid a fortune to acquire the platform and its petabytes of data on its bajillion users, just after it bought the video-training platform Lynda. This wasn’t a coincidence. LinkedIn has the CVs of hundreds of millions of people, and it knows their employment aspirations and training needs. It also knows the employment needs of tens of millions of employers. It has a business unit that offers training that can connect the dots between the would-be employee and the employer, so that the employee can skill-up using a just-in-time training system in order to make themselves fit better with the fast-changing needs of the employment market. In short, it is a data-driven education business that knows precisely what employers want and what employees need, and can precisely meet those needs.

“Against that, law schools have a degree that was designed in the 19th C and hasn’t changed much since. We have literally no reliable data at all on the employment needs of the legal services market, outside some colorful anecdotes from alums and maybe some half hour interviews with managing partners of AmLaw50 firms. And many of us insist on referring to the ‘legal profession’ as though that was still a meaningful concept.

“Oh wait, at least we have the Accreditation Industrial Complex to save us.”

“I don’t wish to be as negative as Michele Pistone earlier in this symposium, but I worry about law schools and higher ed. Earlier this year I put together an investment pitch deck for my university. In an effort to get out ahead of this problem, I suggested to the powers-that-be that we could use microcredentialling and apps to connect the needs of learners to those of the employers, and I laid out fairly precisely how the university could have a meaningful role in this interaction, how it could be being the honest broker in the entire virtuous circle and make itself relevant for the decades ahead; and not just in legal education but more broadly throughout the university.

“Three guesses how this went down.”

“If I were a betting man, I’d put my money on the future of legal education being outside of the university. As an old school, dyed-in-the-wool legal academic this fills me with sadness.” (Dan Hunter, Swinburne (Australia))

“In short: those who care about the future of education in general, and legal education in general, should work to see that both are fairly funded. Complex societies need a sophisticated, expanding education system. Education “pays off,” in social, cultural, and economic dimensions, over a lifetime, so markets (focused on short term exchange and profit) will never optimize its production. The state must get involved. As it does, it must hear about the value of education, research, and clinical contributions. Such advocacy is especially important now, as private lenders’ investments in lobbying may be about to pay huge dividends — to the detriment of millions of students, and hundreds of millions of Americans who depend on the long term fiscal health of the United States. We should be looking to more humane models of higher education finance (at both the state and federal level), rather than doubling down on privatized financialization.” (Frank Pasquale, University of Maryland)

“AshokaU is interested in finding ways to support change and change-making in law and legal education and to equip law school graduates with the tools they need to make change in the world. To advance this aspect of its mission, the conference has a “law track” and yesterday’s conversation among the lawyers who are here was focused on how to make systems changes in legal education and the profession. It was an invigorating conversation, during which some of the topics that have been talked about during this symposium were discussed. As I reflected on that conversation, I realized that so many of these conversations are taking place in parallel, in silos.” (Michele Pistone, Villanova University)

[To be continued]

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