Law School 2.0

Skills & Values: Lawyering Process

2013-06-17T12:32:38-06:00

I am pleased to announce that my new book, Skills & Values: Lawyering Process - Legal Writing and Advocacy will be published by LexisNexis/Matthew Bender later this week. Sample copies will be available for review at the ALWD Conference in Milwaukee, Wisconsin next week.

Skills & Values: Lawyering Process is an entirely different sort of legal writing textbook. Which is probably a good thing, since today we have a plethora of legal writing textbooks from long-time leaders in our field, folks such as Helene Shapo, Linda Edwards, Charles Calleros, Anne Enquist, Richard Neumann, and Laurel Oates. Many of these books are in their fifth or sixth editions now. Teachers of the legal writing and advocacy course have a diverse and mature group of legal writing textbooks to choose from when they decide on a text for their courses.

The design of this book, however, is quite different from the traditional legal writing textbook in several ways. First, it is a hybrid text, which means only a portion of the entire text is printed, with the rest residing on the Lexis Web Courses platform. This allows the book to be somewhat cheaper and students have less to lug around, but even better, it allows for more interactive features in the online portion of the text that can be achieved in print. In addition, for the professor who might decide to adopt this text, it comes with a fully populated Web Course for their students all ready to go, as well as an online Teacher’s Manual with Prezis and PowerPoints to use or adapt for class, handouts, a closed memo assignment, email memo assignments, and checklists for various aspects of the legal writing process.

Second, it is based on the assumption that students today need to read less and do more. To be active rather than passive. Aristotle said: “What we have to learn to do, we learn by doing.” It is no secret to educators at all levels that our students are changing. Some assume this is an entirely bad thing, and lament the “short attention span” of the Google generation. But most teachers would rather, as teachers have for millennia, reach their students where they are with what they need. The design of this book should help them do that.

Third, students are just learning this material for the first time, and perhaps they do not need, in the 1L year, quite so much information about the writing process. They certainly do need a deeper understanding later in law school, and in practice. But as they are first learning how to do, they need to do, rather than spend so much time reading about it. So the chapters and topics covered in the print book are covered at a depth that is less than a traditional textbook. They are designed to introduce the basic concepts of legal writing and advocacy, and to be supplemented with additional interactive information on the online site, and then used.

Finally, it is rare to select a legal writing text that is designed very closely to the way each professor teaches the course. Because all of the books have their own approach, which might be different from our own in some ways, we end up compensating for the differences in class and in handouts and in assignments, and this can be confusing for students. The idea of this text is to be the most flexible of them all, by putting in the hands of teachers the ability to assign a small amount of reading, and then to use the online materials (and their own) in the way that most suits how they prefer to teach the material.

As with all of the books in the Skills & Values Series, this is an entirely different way to think of a law school text than what we have had in the past. And yet it is not entirely unfamiliar either. It is designed to be flexible, adaptable, and designed to teach our students what they need to become well rounded and skilled professionals in the ways they best learn, so that we may best prepare them for their future, not our past.

I am grateful to my hosts during my sabbatical, the Institute for the Advancement of the American Legal System (IAALS). They have given me an office where I have been working since January, and this helped me to focus on finishing this book. They are a wonderful group, and it has been a pleasure to be around them.

Presentation at Rocky Mountain LW Conference

2013-03-22T09:55:06-06:00

This weekend I will be attending and participating in the Rocky Mountain Legal Writing Conference, which will be hosted by our friends at the University of Colorado Law School in Boulder. I had the privilege of working on the program committee, and helped with an early version of the program, so I know that this is going to be a great conference. I am really looking forward to it.

I will be presenting on Saturday afternoon about a topic I have been thinking about for some time. I find that sometimes I write conference proposals that are not necessarily something I know much about, but rather something I want to think about more. This is one of those. I am calling it: “Escaping Flatland: A Thought Experiment.”

The concept of escaping flatland comes from Edward Tufte, the great and fascinating expert on the best forms and methods for the expression of complex information. In his book Envisioning Information (1990) he writes:

"Escaping flatland is the essential task of envisioning information. All the worlds (physical, biological, imaginary, human) that we seek to understand are inevitably and happily multivariate in nature. They are not flatlands."

As legal scholars, I think it is fair to say that part of our job is to help our community (however defined) fully envision the information that we are presenting in our scholarship. It has often concerned me that the form that legal scholarship typically takes at publication – the law review – is a flatland. It is obviously two-dimensional. And while a typical law review article is full of footnotes – which at least are connections outside of itself – they are dead links, that is, not clickable. I hope that our scholarship will - at least some of it - become more multvariate. If it does, It seems doubtful that the old style law review as a vessel for our scholarship will survive much longer into the 21st Century.

Even as we are transitioning to SSRN and such systems, we typically upload a PDF of the print file, where the links (footnotes) are once again dead, even though at that point, they could be clickable. That is enough of an issue, and not especially difficult to solve. But a deeper issue it seems to me is implicit in Tufte’s concept of “escaping flatland.”

For example, if we have an article about appropriate fonts for legal writing, we should be able to interact with the subject matter to more fully understand it. If we have an article that includes musical notation, we should be able to click a button and listen to the music. If (perhaps most importantly) we have an article that includes empirical scholarship, we should be able to interact with the underlying database. (I showed an example of this sort of "open" database from Gapminder).

So this is what I will be talking about on Saturday. Here is a link to the Prezi I will use with my talk:

On Being the Visiting Scholar at IAALS

2013-01-14T13:41:59-07:00

After 10 years of full-time teaching at the DU Law School, I am on sabbatical leave (my first) until July. I have been preparing for this leave for a year, since I learned that my leave application was accepted last January. I am honored and privileged to have the time away from my teaching responsibilities (although I miss my students) and I want to use the time well.

While it might be tempting to fly off to Australia for a few months, I have family responsibilities, and I very much want to be productive with this precious time. As I was planning for the sabbatical, I knew that I needed to get away from my office at the law school so that I might have some distance, both for clarity and perspective. My hope was to be away, but not too far away, so I could use the time effectively.

That is why I am thrilled to have become the inaugural Visiting Scholar at the Institute for the Advancement of the American Legal System (IAALS). The Institute is located on the DU campus – in fact, it is right in front of the law school – so it is close. But it is also away, because now that I am set up here, I do not have to go to the law school building at all.

IAALS is lead by Rebecca Love Kourlis, former Colorado Supreme Court Justice and last year’s winner of the ABA’s John Marshall award. Justice Kourlis is an incredibly impressive leader and thinker, and I am privileged to work with her and with the extraordinary team she has assembled. IAALS is doing great work through four initiatives: Rule One, Honoring Families, Quality Judges, and Educating Tomorrow’s Lawyers (ETL). Readers of this blog know that I have been involved with the ETL initiative since its inception, and spoke at its first conference last fall. I am also conducting research on eDiscovery issues, which is part of the Rule One initiative, and spoke at IAALS’ eDiscovery Boot Camp for State Court judges last summer. So two of my research interests dovetail with two of the initiatives at IAALS.

It is also my hope that by being the first Visiting Scholar here I will be able to “define the role” for future visiting scholars from other schools. As we both explore what this role can be – for the visitor and for IAALS – I hope we will establish this residency as something available to other professors who might be on sabbatical in the future, and who have research interests that connect with the work of IAALS.

I will be working on several projects over the next several months. I am finishing the Skills & Values: Lawyering Process book. This is a textbook in the S&V Series for the first-year LP course that I teach, and as with the other S&V books, is a hybrid, with some material printed and the rest available online. I hope also to work on a short article about using data from your writing program to create a culture of constant improvement, and a longer article about the “Teaching” of Professional Identity (which was developed from ideas that started as blog posts here). I am also researching the limits of proportionality in electronic Discovery law. And I hope to start a new book, in some ways a follow-on from Law School 2.0, which will attempt to define a “way forward” for legal education over the next 5-10 years.

I also will be attending or participating in seven conferences this year, including the Rocky Mountain Legal Writing Conference in late March. I am on the conference committee for that conference, and I will also be speaking on the subject of "Escaping Flatland," about the future of print law-review published scholarship in an increasingly digital world. Also, I plan to participate in the ALWD Conference in Milwaukee in June, and the Fourth Applied Legal Storytelling Conference in London in July.

I am very grateful to my new hosts at IAALS, and for their loaning me an office where I may work on these projects. They are wonderful people, and I am pleased to be among friends and valued colleagues. I am also grateful to my law faculty colleague Professor Robert Anderson, who has taken on the role of Interim Director of the LP Program while I am away. The administrative burden of directing the program is substantial, and I appreciate Robert’s willingness to take it on so that I might have a rest from those labors. I know the program is in good hands in my absence, and that Robert – and my esteemed colleagues in the LP Program – will do great work while I am away.

Distinguished Teaching Award

2012-10-17T15:17:40-06:00

Today, the University of Denver gave me the University's Distinguished Teaching Award during the annual Convocation ceremony.

I know it sounds cliche, but I really was honored to be nominated. I am sure there are many equally deserving members of the faculty at the University. When I read the packet of supporting materials that the law school put together in support of the nomination, I was blown away. I said to my Dean, "I can't imagine how actually winning the award could exceed the experience of reading what my students, former students, and colleagues have said about my work with them." And - as Edith Ann would say - that's the truthth.

I learned in June that I would be this year's recipient. There is now a nice picture of me in Mary Reed Hall, and my name has been added to a large plaque, also in Mary Reed. To have my name added to a list of great teachers over the years at DU is a tremendous honor. I can barely put into words how much it means to me.

I know this also is a cliche, but I really do share this honor with so many others. With my students, first and foremost. They have inspired me and motivated me every day. They put their trust in me, looking for help to do something important with their lives: to become counselors at law. It is my great honor and privilege to work with them. I counted it up - roughly speaking, I have had 850 students in law over the 28 years that I have taught (on and off) in a law school. They are my legacy, and I only hope I can continue to do this work for many more years. My students are why I left the practice of law, and why I do this now.

But I also want to share this award with my teaching assistants. I have had many wonderful TAs over the years, and it is really they who have kept the whole operation running smoothly. It is so important in LP - it being a first year course - that everything run well and the stress level for the students stay at a manageble level. LP has so many disparate learning objectives that it can seem like a Rube Goldberg contraption at times. Students understandably get stressed when they think the course is disorganized, and it is the TAs who help me keep it on track. Instead of the stress of not knowing what is going on impeding the students' learning, we are able to keep everyone focused on what they need to do in the course. I could not do this well without the help of my wonderful TAs over the years.

And I share this award with the many, many, dedicated teachers of legal practice skills across the country. Many of them have labored in near obscurity for a long time, often while being treated poorly and paid worse. But they are the ones who do the hard and often thankless work that our students need, and they have done it faithfully - day by day, student by student, paper by paper - for years. Among those dedicated teachers are my own esteemed colleagues in DU's Lawyering Process Program. It is a privilege to work alongside them, and this is also true of all of my colleagues around the country, many of whom I am proud to call friends. Among the greatest pleasures for me in this award is that I see it as a form of recognition for the work that all of these dedicated teachers have done in this field for many, many years.

It is gradually dawning on me that, when I and my students are at our best, I am not really a teacher at all; I am a circus barker. I hold the door open and invite my students in. And if they come in - and it only happens if they do - they are presented with the fundamental building blocks of what lawyers do and what it means to be a lawyer, and they are changed forever. This is what is called "teaching." It is a magical process of incredible richness and beauty, and I am lucky to be a part of it.

I have others to thank too, which reminds me of this wonderful quote from John Steinbeck:

"School is not so easy and for the most part is not very fun, but then if you are very lucky, you may find a teacher. Three real teachers in a lifetime is the very best of luck. My three had these things in common. They all loved what they were doing. They did not tell, they catalyzed a burning desire to know. Under their influence, the horizons sprung wide open and fear went away and the unknown became knowable. But most important of all, the truth, that dangerous stuff, became beautiful and precious."

This is a description not of what I am, but what I aspire to be. I did not have three such teachers, I had two. Stuart Hanlon, my 10th Grade Math teacher (above), and Jim Bunnell (left), the Director of the Andover Summer Session where I taught for several summers in my youth. If I could be but half the men and even a third the teachers they were, I would consider my life a success. Both of them are with me every day I walk into class.

And of course I want to thank my wife and daughters. Kathy found me nearly 20 years ago in a fairly difficult time, and we have both worked ourselves out of that to a much better place. And she has been a tremendous advisor to me every single day. Our daughters are our pride and joy. It was simply wonderful to have all three of them with me today at Convocation, because they also inspire me every day.

ETL Conference 2012

2012-10-16T18:02:57-06:00

The first Educating Tomorrow's Lawyers Conference took place on September 26-28, and what an amazing conference it was.

Educating Tomorrow's Lawyers (ETL) is an initiative of the Institute for the Advancement of the American Legal System (IAALS), which is part of the University of Denver. Although not directly a part of the law school, it is now housed in a beautiful building on the doorstep of the law school on the main campus of the University. Its Executive Director is Rebecca Love Kourlis, former Colorado Supreme Court Justice and this year's winner of the ABA's John Marshall Award.

The Director of the ETL Initiative is Bill Sullivan, the primary author of Educating Lawyers (Carnegie Foundation, 2007), known in legal education as "the Carnegie Report." The Manager of ETL is Marnee Baker. ETL also hosts and manages a website, which includes teaching portfolios offered by ETL Fellows that show how they teach in this way.

ETL is based on a consortium model. That is, other than the infrastructure (managers, website, etc.) which is housed at IAALS, it is made up of now 24 law schools that are all practicing to some degree, and are committed to, the "Carnegie" model for legal education. These law schools applied to join ETL, and one of the benefits of membership is an annual conference bringing together teams of law professors from each consortium school. This conference, entitled "The Development of Professional Identity in Legal Education: Rethinking Learning and Assessment," was the first.

As the title of the conference suggests, this one focused on the "Third Apprenticeship" (a reference to the Carnegie model) of Formation of Professional Identity. The full conference program can be found here.

The conference began with a "speed networking" session, in which each school was able to meet (for a short 15 minute segment) representatives from all the other attending consortium schools. That was followed by a dinner, where Jim Moliterno (Washington & Lee) was given the "Rebuilding Justice" award by IAALS in recognition of his many contributions to legal education reform over the years.

The next morning, Bill Sullivan and I co-presented an "Interactive Pedagogical Presentation on Professional Identity Formation." Advance reading for that session was a short article squib I wrote that was derived from two blog posts previously published here, as well as a handout for an exercise that I conducted during the talk. Both items - together with all handouts from the conference - can be found here.

Our talk was followed by a presentation by Bill Henderson, who is a professor at Indiana University Law School and who blogs at The Legal Whiteboard. Bill opened our eyes to the compelling data showing the changing dynamics (and economics) of the legal profession. After lunch, we heard more data from the assessment of formation of professional identity work being done by Neil Hamilton, Jerry Organ, and Verna Monson at the Holloran Center at St. Thomas University Law School.

The afternoon concluded with two concurrent sessions, one of which featured Bill Henderson and Jim Moliterno talking about their respective programs, and the other of which featured my colleague Roberto Corrada and me talking about the whole-course simulations that we use in our teaching. Roberto is justifiably famous for teaching both Labor Law and Administrative Law through a whole-course simulation model, and he did a great job explaining the educational theory behind simulations and describing how his two courses operate. I spoke about the Discovery Practicum course that I have taught at Denver Law for nearly 20 years. I have a post here on this blog describing the course, and Course Portfolio on the ETL site.

On Saturday morning, we heard two tremendous speakers address the question of formation of Professional Identity. First, Dr. Matthew Wynia from the American Medical Association spoke about the development of professionalism in medical training, in which he shared some of the history - back before Hippocrates - of professional identity formation in medicine, and also shared a "top ten" list of things that are done in medical education to inculcate professionalism. The list he offered was ranked from "Easy to do/But Ineffective" to "Hard to do/But very Effective." I found it compelling that simulations are right in the middle - hard to do but not too hard, and pretty darn effective. After Dr. Wynia, Daisy Hurst Floyd, former Dean of the Mercer Law School, spoke about Cultivating Self-Reflection and Lawyer Integrity. In her talk she described a course she teaches which involves students learning from practicing attorneys, and which also involves student reflective journaling, a technique I use in the Discovery course, but about which I have become even more intensely interested since she spoke.

Near the end of the conference, we had a Dean's panel discussion, featuring Deans from Loyola (New Orleans), Denver, Dayton, and Southwestern. The title of the panel was "Implementing Institutional Change," and each Dean spoke about what they are doing to support "Carnegie Style" teaching at their school. Each of the Deans explained the various forms of support they have given in their schools, such as offering stipends for new and innovative course development. Dean Paul McGreal (Dayton) spoke about the initiatives he has developed and supported at his school that are moving towards the "flipped" classroom model, and mentioned (while I blushed) that he was "transformed" to teach in this way - and support this kind of teaching in his Deanship - from reading the Law School 2.0 book.

Next year's ETL Conference will be October 3 -5, 2013 at Denver Law, where we will connect the formation of professional identity with the bench and bar. For another account of this year's ETL Conference, visit Mary Lynch's excellent post at the Best Practices in Legal Education blog at Albany Law School.

Of MOOCs and Legal Education

2012-09-16T15:44:51-06:00

There has been much discussion in educational circles over the last couple of months about Massively Open Online Courses, or MOOCs. It is believed that the ugly disruption at the University of Virginia in June involving the firing and subsequent rehiring of the President was partly due to a perceived reluctance to get UVA involved in offering MOOCs. (I have addressed this in a previous blog post). Today’s New York Times Magazine has an extensive cover story about these events, and notes that soon after the President’s rehiring, UVA announced that it was joining one of the MOOC consortiums (Coursera).

It seems that MOOCs have become the media darling of the moment in the education sphere. Unfortunately, there is much misunderstanding and misinformation surrounding MOOCs. And for the purposes of this blog there remains the question of whether MOOCs have any applicability to legal education, and if so, what that might be.

As a starting point it is probably important to explain the terms that make up the acronym. Massive refers to a large number of enrollees. Open refers to the fact that these courses are typically offered to anyone in the world. Online indicates that they are fully online courses, with no face-to-face contact. Courses seems obvious, but is not; since enrollees can come and go, complete as much or as little as they want, and do not necessarily receive a grade or any transferrable credit, it stretches the term.

In practice, MOOCs are not new – they have been around for a half-dozen years or so. MIT and Stanford have offered several technical courses in the form of MOOCs for several years. One particularly popular one offers instruction in iPhone programming. Some of these courses have enrolled over 100,000 students. No money - or University credit - changes hands.

MOOCs offer something terrific and new in education. But the development and popularity of such courses is not a panacea for financial problems, and they are not as threatening to the enterprise as many seem to think. MOOCs are being touted as both a financial savior and the end of education as we know it. They are neither.

The Massive and Open aspects offer educational resources around the globe, for people to whom the possibility of taking a course of any kind at MIT was beyond remote. Technology has made that miracle happen. And the Open-ness, from a pedagogical point of view, is a great thing, because it brings potentially disparate experiences and backgrounds into a virtual space that otherwise would be impossible on the ground. If you believe that students in any course in any format learn a lot from each other, then you will probably view the Open aspect of MOOCs as creating educational opportunities that once did not exist.

There is a tendency in the press (including the Chronicle of Higher Education) with new technology to rush to two conclusions: 1) it will make a lot of money, and 2) it will change the world. We do this, I think, because both have happened in the last 20 years. A lot of money has been made, and things have changed. But we forget that a lot of money has been invested in losing technologies, and while technology has changed how we do things, and sped things up, we still fundamentally interact with each other in the ways we always have.

In my view, MOOCs are primarily a University marketing scheme on the one hand, and a public service on the other. MIT and Stanford and Harvard and UVA (etc.) all want their “brand” to extend as far as possible around the world. Offering a few courses by their best professors is a good way to do that. And our most elite institutions should be offering a public service of this kind to the world. I am glad they are.

But I am skeptical that these courses will ever make much money or replace higher education as we know it.

While these courses might one day become monetized with advertisements or “tuition” payments, it seems unlikely that they will make enough money to be a significant source of income for a large University. This is because as soon as students are paying for credits, they need and expect professors who are involved in teaching the course, and teaching 100,000 students is not possible, no matter the technology in play. Higher education discovered some time ago that there are financial reasons to have a high student to teacher ratio, but it more recently discovered that there are rarely good pedagogical reasons to do so. And there are other concerns about MOOCs. Many are of the poorest pedagogical design: "lecture capture" and quizzes and questions posted to a forum in the hopes another student might be able to answer. In part because of this, they have very high non-completion rates, and there are many opportunities to cheat.

The stark reality is that all of us in higher education are struggling with this uncontrovertible fact:

The educational system we have today was designed at a time when information was scarce. Information is no longer scarce.

This means that the one-to-many model breaks down in the new order. If anyone can get the information that used to be held by the few, then the few (the professors) have to retool and offer something different and better than (mostly) information transfer and summative assessment.

MOOCs are good at information transfer. (They are also an example of how information is no longer scarce). As professors retool to offer “higher order” teaching and learning on a smaller scale higher education gets better and more appropriate for the 21st Century, but not necessarily less costly. MOOCs offer an unqualified good in that they allow for experimentation with online technologies, many of which can be used throughout traditional Universities - much more prevalently than they are now - to provide a better “product” without higher cost.

And it is here that I take issue with some of the fear about MOOCs. In an opinion piece in the NYTimes, entitled The Trouble with Online Education, a professor at UVA said this:

Online education is a one-size-fits-all endeavor. It tends to be a monologue and not a dialog.

This is complete bunk, written by someone who obviously has no experience teaching online. It is the worst sort of generalization that comes from ignorance of the subject, and it is not the sort of research and thoughtfulness you would expect (and hope for) from a UVA Professor.

As someone who has taught many online courses, I can say that - properly designed and developed - they can be better than “ground” courses in some ways, and often are. But, they are not a financial panacea because the best online courses are no larger than 15 students. It is not the technology that gets in the way of good teaching, but rather class size and careful pedagogical design. I wrote about this extensively in Law School 2.0 (at pp. 110-120). Here is one excerpt from that section:

As a substantive pedagogical matter, when I have conducted these “live” classes [where everyone is online together at the same time] I have found them to take the point of difference between an online class and a “ground” class very near to the vanishing point.

It is interesting that the President of the University of Southern California (USC) recently issued a letter stating unequivocally that: “USC will not offer online degrees in the undergraduate level.” (Emphasis in original). The argument there is that so much of the ideal undergraduate experience is broader than what is just learned in the classroom, and if they did offer such a degree, much of that would be lost. The letter goes on to extoll the benefits - and successful experience USC has had - offering online learning at the graduate level, across many of its schools. So perhaps there is an appropriate distinction between college and graduate school. But even at the college level, some online teaching can be effective, and improve what has gone before. Note that the President of USC said they will not offer online degrees.

In legal education, we have the ABA limitations that apply to online instruction. The ABA allows a law school graduate to have taken no more than 12 credits in online courses, and none of those during the first year. I suspect when we as legal educators become facile with teaching online, and use best practices in online pedagogical design, that restraint will be relaxed.

Even with that limitation, law professors seem to be reacting with fear rather than curiosity. But curiosity would serve them better. The “flipped” classroom is an example of something we could all be doing more of today. The basic information that might be captured in a lecture: that information can be easily put online. This could free up at least some of the “classroom” time for more workshop-based learning, with higher quality one-on-one time with the professor. This is not hard, it just takes retooling. And it's probably more fun. Importantly, it is not a MOOC. It’s not massive and it’s not open. And it is not fully online either - it is a hybrid pedagogical design.

Perhaps Harvard Law School will offer a MOOC in American Law Systems (or similar). That would be a great thing, an international marketing coup and a public service. But it will not be the new model for legal education. Instead of fearing MOOCs, we should strive to learn from them, and incorporate the best they have to offer in our schools. We will improve the product, without increasing cost. Given all the criticism of legal education - of it being an overpriced product not sufficiently tuned to the needs of practice - both developments would help.

ETL Conference: Development of Professional Identity

2012-09-09T22:25:12-06:00

Final preparations are underway for the first annual conference of the Educating Tomorrow's Lawyers consortium of law schools committed to reform in legal education. The conference, entitled The Development of Professional Identity in Legal Education: Rethinking Learning and Assessment, will be hosted by the University of Denver's Sturm College of Law on September 27 to 29.

The Conference Committee is Bill Sullivan (principle author of the Carnegie Report), Steve Daniels (ABF), Marnee Baker (ETL Program Manager), Roberto Corrada (Denver) and myself. It seems we have been in innumerable meetings over the last year, trying to think of every detail ahead of time. This will be a different sort of conference that will feature the consortium teams getting to know each other and sharing information, discussion groups after many of the presentations, and a different form of conference assessment: a random focus group at the end.

During the conference, Roberto Corrada and I will be offering a presentation about teaching with simulations, and there will be other presentations featuring Bill Henderson (Indiana), Neil Hamilton (St. Thomas), and Jim Moliterno (Washington & Lee). Nearly all the ETL Fellows will be in attendance, and nearly all of the 25 consortium schools will be represented. It should be a great conference.

"Teaching" Formation of Professional Identity

2012-07-24T13:46:26-06:00

Yesterday I gave a talk entitled “Programmatic Excellence in a 21^st Century Legal Writing Program.” In that talk, I noted that one of the things I think the legal writing field needs to work on in the coming years is the possible role in our pedagogy for the intentional formation of professional identity in our students.

I have previously written a post about the difference – as I see it - between professionalism and professional identity. The latter term comes from Chapter 4 of the Carnegie Report, but it is not especially clear about what it means, and I think that has lead to some confusion. What I said in the previous post is that I think we have been confusing professionalism with formation of professional identity, and that the latter is not something we can “teach” per se, since you cannot teach someone to form their identity. Rather, we as teachers need to create “situations” in which our students can be confronted with ethical questions and reflect on the decisions they make, and be guided by us as they form their own professional identities. I said those things in my talk yesterday.

At the end of my talk I received a pointed question asking for specifics about what those “situations” might look like. And I gave a fairly general answer. On reflection, I realized why I gave a general answer. Because – other than what I do in my Discovery class in this area – I had not yet given enough thought to the specifics of how to create these classroom “situations” in other courses. So I have been thinking about that since.

I have to come up with a better term first. “Situations” isn’t specific enough either. It does come fairly close, since the definition of that word includes “a combination of circumstances.” And what I am suggesting is a combination of guidance steps that ideally take place in a particular order. For now - until I can come up with something better - I am going to call it a “Guidance Sequence for Formation of Professional Identity (GSFPI).”

Now, to the specifics of a GSFPI. It seems to me that the sequence has four essential components. 1) An exercise or a writing assignment that sets up an ethical dilemma as it appears in practice; 2) An identification by the student of the ethical quandary raised in completing the assignment; 3) An expression by the student of the ethical issue and their reflection on their own decisions about how they resolved the dilemma; and 4) Some form of feedback and response from the professor about the decisions and choices the student made.

This could be accomplished fairly easily in a simulation-based course, but there is no reason it could not also be accomplished in a traditional doctrinal course. It could be a separate assignment in the course, with a portion of the grade assigned ot it. The feedback from the professor is more time consuming in a large class, but not impossible with a well-designed rubric.

In the Discovery class that I teach (a simulation-based class), every discovery document the students prepare offer opportunities for identification of ethical issues, and the memos that accompany each assignment specifically ask the student to explain the choices they made and reflect on how and why they made those decisions. In the final step of the sequence, I provide margin feedback on their memos, and one of the criteria in the grading rubric on each assignment addresses the accuracy and quality of the identification of the ethical issue, and the depth and clarity of the reflection.

To bring this back to the first year legal writing course, I think we (as a field) should be working on how to introduce such GSFPI opportunities in the 1L course, for three reasons. First, the Carnegie report suggests that formation of professional identity should be infused in the entire curriculum, and obviously that would include LRW. Second, because we already do some of this (just not necessarily intentionally) and we are the first class the students have that simulates legal practice, it seems appropriate that our class would introduce concepts of formation of PI. Third, it would give us an opportunity for more connections with other parts of the curriculum working on formation of PI, most particularly the clinic.

Fortunately, it should not be difficult to do. Perhaps one way might be to have an ethical dilemma come up about whether to include a borderline negative case in a brief. That is a writing assignment we already have in the LRW course, and sometimes this does happen. But we do not necessarily ask them (or have an opportunity to ask them if we don’t know about it) to identify and reflect on the choice they made about that case, and as a result, we lack an opportunity for response and guidance from the teacher to complete each of the steps in a GSFPI. With a bit of intention and planning, we could do this.

I am grateful to my interlocutor for the question yesterday because it made me think in a more granular way about this. What is provided in this post is merely a statement of how far I have gotten to this point in articulating a specific framework for the creation of the guidance “situations” in class or clinic that I hope can support and facilitate the formation of professional identity in our students. More to come.

Some Thoughts on UVA and Legal Education

2012-06-27T18:06:59-06:00

Much has been said and written about the ham-handed firing - and subsequent reinstatement yesterday - of the President of the University of Virginia, Teresa Sullivan. A quick Google search will turn up all manner of sordid details. Here is a good overview article in Slate. Not much is interesting about poor management by an out-of-touch Board of Trustees - it was a mistake, and they have finally realized that, and yesterday they reinstated President Sullivan. Mistakes happen, and so the mere fact of that is uninteresting.

But I think the why of this episode is potentially very interesting, and important to anyone interested in the state of higher education today. The reason for the firing seems to be that President Sullivan was not moving fast enough to implement changes that the Board believed are needed for UVA to stay competitive in the near and long-term future. In particular, it seems from the news reports that two types of changes were sought by the Board: 1) to shut down low-need departments (such as Latin and German), and 2) to embrace and implement teaching more courses online.

President Sullivan's full-throated defense was basically: "Yes, I move slowly. That's the only way to get any sort of change in the academy: through consensus building." She was well-liked and respected by faculty and students, and clearly the Board underestimated that. And they underestimated the disruption such a firing would cause. Once they realized that - and proved themselves to be a Board out-of-touch with the faculty and students of the school they are charged with governing - they reversed their decision and reinstated President Sullivan.

The why of this episode, I think, is found primarily in two converging forces. First, the cost of an elite education has skyrocketed in the last 20 years, without (generally) a noticable increase in quality. Second, in those 20 years, virtually all businesses have been dramatically changed (in one way or another) by the advance of technology. These two forces are very much on the mind of business leaders today - they have to be, since in the first place, they depend on hiring smart people who can afford to work for them, and in the second, if they have not responded to technology-driven changes in their businesses, they don't have that business anymore, and they would not be successful enough to be on the UVA Board of Trustees. I can say with some confidence that discussions centering around these two forces in higher education today are taking place on every Board of Trustees at every institution large enough to have one. So: cutbacks and efficiencies are what they are used to, and what they are looking for to help their institutions survive.

I can't opine about whether the German department at UVA should be sacked. It seems like a terrible idea, frankly, particularly at Mr. Jefferson's University. But I am somewhat sypathetic with two aspects of this. First, we have to accept that things are changing, and address that forthrightly. President Sullivan is right that change in academia happens through consensus, and I'm not arguing that this should change. But sometimes we have our head in the sand, and that's not just bad, it potentially damaging to the institution we hope to save. Second, we continue to be blind to the potential for the judicious application of technology to help address these issues. Some out-of-the-box thinking might help, and some shifting of paradigms.

In a recent interview with Wired magazine, Clay Shirky (Professor at NYU, writer of several books about the internet's impact on business) had this to say on the subject:

When I look around at the risk/reward curve for higher education it's grim. We've really gone past the point where raising tuition higher than inflation and then financializing the payment system has become abusive.... Plainly, Universities are the kind of institutions that are ripe for pretty radical reconsideration. Probably because the founding story of many institutions and particularly ones that we think of as kind of original avatars of American higher education was 'notable gentleman X donated their library.' Right? So literally just access to written material became an important enough gesture that you would organize a University around it. And whatever it is people need more of today, it ain't access to written material.

That's some pretty sharp talk (full interview here), but Shirky has a strong track record over a decade of predicting internet-related forces creating change, and I can recommend his books. And he is by far not the only commentator making the same arguments about higher education. It seems wise to prepare for the impending change, rather than stand pat and hope it passes by. That approach worked for the recording industry, right? Seriously, if the German department at UVA wants to reach more students, they could fairly simply do that by making some of their teaching available online, for example. Hanging on to old paradigms: "Oh, I must only have face-to-face time with my students to teach effectively" is status quo talk. It is also not good teaching in my view, because I believe good teaching partly involves being open to new methods and new approaches throughout one's teaching career. If that is what President Sullivan was defending (which I doubt) I might be sypathetic to the Board's impatience, although I deplore its underhanded methods.

Yesterday's NYTimes had an interesting Op-Ed piece on the subject by Jeff Selingo, Executive Director of the Chronicle of Higher Education. In it, he argues in favor of lowering costs of education by using technology for better learning outcomes. I recommend it as a concise statement of what is needed to help make this situation better.

Of course, much of what I have written here applies to legal education as much as it does to UVA. And the argument Selingo makes in his Op-Ed is the argument I made (for law schools) in my Law School 2.0 book. Of course, what I wrote there was before the econolypse happened, and the legal market has changed substantially since then (although I noted some of these changing forces on the horizon). Fortunately, there are two law professors covering that angle in depth. Professor Brian Tamanaha (Washington University) has a new book out called "Failing Law Schools." He focuses on the economics of legal education, and the employment data issue. And Professor Bill Henderson (Indiana) is posting regularly to his blog The Legal Whiteboard. His focus is on the changing economics of the legal profession, and has written persuasively that the legal market has changed significantly and permanently. He also has a recent post that argues the ABA's new employment data disclosure requirement will put data in the hands of prospective students that will shift priorities in legal education.

In sum, the UVA situation was unfortunate and poorly handled. It is good that President Sullivan was reinstated. But she cannot do what is necessary without her faculty embracing change. And they probably need to do that, even at Mr. Jefferson's University. The same is true of all of higher education, and of course, the legal academy (broadly speaking) is not immune either. If anything, if you believe Tamanaha and Henderson, these matters are more acute for us.

Follow up to LWI Conference Presentation

2012-06-08T15:24:00-06:00

Last week I gave a talk at the 2012 Biennial Conference of the Legal Writing Institute (LWI) about “Carnegie Integrated” courses, and the opportunity that they present for LRW faculty in the coming years. A Carnegie integrated courses is one that is intentionally designed to integrate the three "apprenticeships" defined in the Carnegie Report: Doctrine, Skills, and development of Professional Identity. The blog post I prepared in advance of my talk can be found here.

As my talk was beginning, I asked the attendees to fill out an index card with the answers to three questions: 1) I teach a course other than LRW; 2) The course I teach is primarily writing-focused; and 3) The course I teach is primarily doctrine-focused, with a substantial writing component. At the end of my talk I gave the compiled results, but I thought I would detail the results again here for clarity and future reference.

There were 50 attendees at the session (not bad for Friday!) but I received 44 cards back. The answer to Question 1 - "I teach a course other than LRW" - was 30 Yes and 14 No. The answer to Question 2 - "The other course I teach is primarily writing-focused" - was 22 Yes, 12 No, and 10 N/A. So, most of the attendees who teach an upper-level course teach a traditional writing course, such as Contract Drafting, or Appellate Brief writing.

The answer to Question 3 was the most interesting: "The course I teach is primarily doctrine-focused, with a substantial writing component," 9 Yes, 24 No, and 11 N/A. So, very few attendees teach a doctrine-focused skills and writing course - what I (and others) have been calling a "Carnegie Integrated" course. But since those courses are best taught through a mix of traditional doctrine and a course design that incorporates "whole-course simulation," I think that LRW Faculty are very well positioned to teach such courses in the future, since that is a form of pedagogy in which we are expert.

Anyway, that's some more detail about the quick poll from the audience during my talk in Desert Springs. Let me know your thoughts in the comments - about the poll, or the idea of teaching such courses.