This conference, a major event in the celebration of the 25th anniversary of the GSU College of Law, will take as its point of departure a highly critical report on American legal education recently issued by the Carnegie Foundation for the Advancement of Teaching: Educating Lawyers. The report calls for fundamental changes in both the structure and content of legal education in the United States to integrate realistic and real-life lawyering experiences throughout the curriculum, and challenges American law schools to produce lawyers who are not only smart problem-solvers but also responsible professionals committed to service of both clients and the larger society. The conference will bring together leading legal educators from both the United States and other countries with leaders from the legal profession.
The Conference Program can be accessed here. My own contribution to the Conference may be accessed here: Larry Catá Backer, Parallel Tracks?: Internationalizing the American Law School Curriculum in Light of the Principles of the Carnegie Foundation's Educating Lawyers.
Here is the abstract:
The Carnegie Foundation’s Report, Educating Lawyers: Preparation for the Profession of Law reminds us that the challenge for legal education requires a linking of the “interests of legal educators with the needs of legal practitioners and with the public the profession is pledged to serve—in other words, fostering what can be called civic professionalism.” Educating Lawyers would reverse the drift of American legal education recast legal education towards a purely academic orientation, recasting legal education as fundamentally professional rather than academic, outward and not inward looking. Educating Lawyers’ focus is almost completely devoted to domestic law. Yet, civic professionalism does not end at the borders of the United States, and American lawyers long ago stopped thinking of national borders as the borders of their professional lives. The law schools have been responding. Many law schools are now wrestling with issues relating to the incorporation of a transnational legal component—including elements of international, comparative, foreign and transnational law—within their teaching and scholarship missions. These changes mirror discussions within the legal academy over a move from a “national law practice” to a multi-jurisdictional practice model of legal education. Yet these two great reform efforts have developed along parallel tracks. This paper looks at the development of these parallel discussions of reform of legal education. The framework is described in Part I. The paper then turns to a critical review of Educating Lawyers, focusing on its basic assumptions that serve as the foundation for the suggestions for the changes proposed. Part III examines the parallel development of the several strands of proposals for the incorporation of non-domestic legal education in American law schools, suggesting first an analytical framework for evaluating these proposals and then evaluating the several forms of incorporation that dominate incorporation of the transborder element in law school curricular, research and service activities. These are divided into five categories—three are elaborations of traditional models and two others, an immersion model and separation model, represent emerging framework structures. Part IV considers these models of integration in light of the foundational model of apprenticeship proposed in Educating Lawyers. It suggests that transborder legal education can be integrated in legal education within the framework of Educating Lawyers but that not all emerging models of such integration are compatible with that framework.The paper can be downloaded here (in "pdf" format): Larry Catá Backer, Parallel Tracks?: Internationalizing the American Law School Curriculum in Light of the Principles of the Carnegie Foundation's Educating Lawyers.
My critical summary of the excellent presentations at the conference follows. Comments welcome!
What follows are my recollections and impressions of many of the speakers who presented their work and thoughts at the conference. Analysis is interwoven with description, though I have sought to err on the side of description. My own conclusions are easy to describe First, it is clear that the profession is moving from objective to subjective frameworks, thus the emphasis on values, morals professionalism and community. It is not for nothing that there is a greater affinity to theology in law. This will reproduce itself on changes in emphasis in legal education. Second, for good or ill, change is coming, but that change will be felt differently among law schools. A combination of resource allocations needs and capacity issues will further erode the mythology of a single education environment in which Americans law schools receive the same education everywhere. The class and status divisions among American law schools will likely increase and solidify as the legal academy moves to accommodate the theories of “Educating Lawyers” within an institutional context in which such considerations are substantially irrelevant. Third, the focus on measurement will be shifting from input to outcome measures. This will also serve to intensify status divisions among American law schools. It will also provide a greater degree of control over the production of both knowledge and law students within the academy. Fourth, greater regulatory control is likely as the legal profession continues to shed its customary law prerogatives and become just another servant of the state.
For a detailed viewing of what each speaker said in their own words, please consult the webcast of the event. Most of the speakers’ papers are also available at the conference website. The abstracts (http://law.gsu.edu/FutureOfLegalEducationConference/abstracts.php#Lauchland) provide a sense of the presentations from the author’s perspective.
The first panel of February 21, 2008, was entitled, “Focus on Law Schools: A New Approach to Preventing Unprofessional Behavior.” The Dean of the Georgia State Law School, Steven Kaminshine, moderated the panel. The panelists included John T. Berry (Legal Division Director, The Florida Bar), Clark Cunningham (Georgia State University Law School), and William Sullivan (Senior Scholar at the Carnegie Foundation and lead author of “Educating Lawyers”).
John Berry spoke of the social control of lawyers. His focus was on the ability of law schools to change (mold) students into certain cultures of behavior. Assimilation into a set of governing norms acceptable to the bench and bar was the goal. However, the actual contours of that behavior norm set went undisclosed. However, he sought to provide a glimpse of the moral framework for lawyer conduct through his experiences at the Florida Bar (especially in connection with his work on disbarments).
He suggested, first, that the greatest need was for “caring hearts.” This requires a change of paradigm for professionalism, both as practiced and as taught. Unprofessional conduct, Mr. Berry suggested, arises form the same source as unethical conduct. Both reflect a particular evil—the cumulative effect of a communal tolerance of small violations and attitudes towards unprofessionalism. That sort of tolerance has led to a number of bad consequences, including low job satisfaction among practitioners, high rates of depression in lawyers and law students, and low social esteem.
The old model for training in professionalism relied mostly on conferences on professionalism, a certain amount of outreach and education programs, and a proclivity for demanding more testing of lawyers. This, Mr. Berry argued, does not work. He asserted that in place of this old model something different ought to be tried. This something different would focus on changing the culture of professionalism and ethics. He would rely for that purpose on a privileging of the “third apprenticeship” described in Educating Lawyers. But it would also focus on a great normative change in the educational and enforcement environment in which lawyers operate. This environmental change would be directed toward producing what Mr. Berry described as principled people and shared values.
For this purpose, Mr. Berry would propose an action plan. First law schools and the bar must work to consciously change behavior among law students and lawyers. This is to be accomplished using current psychological models for the inducement of change in human being. Practical use of the emerging successful tools of social control might be put to good use in this endeavor as well. Second, Mr. Berry would measure these cultural changes using output measures. These measures (as opposed to input measures, the traditional means for evaluating legal education in the United States), ought to create greater incentives toward conformity, especially if these measures came with teeth.
The underlying idea, it seemed to me, was that lawyers are tools that need direction. Lawyers behave badly because they no longer share a core of values that mark them as a unified community. Those values can and must be taught. Modern forms of assimilating shared values are available and ought to be used. And the entire system established for the production of lawyers ought to be bent to this task—one values, one morals, one community.
Clark Cunningham focused on the Carnegie Foundation report itself. He praised “Educating Lawyers” for its independent and outside perspective. It ought to have greater authority because it was produced by social scientists and academics from the humanities, rather than being a product of the community of legal academics or practitioners. Additional value, and authority, ought to derive from its methodology—“Educating Lawyers” is fundamentally comparative in nature, focusing on the communities of lawyers, priests (clergy), and doctors for its perspective. The essence of “Educating Lawyers,” though ought not to be lost. “Educating Lawyers” clearly suggested that the issue was not too much doctrine but rather too little morals and practice elements in legal education.
The moral element of “Educating Lawyers” was highlighted in Professor Cunningham’s description of the work of Bill Sullivan’s work in “Educating Lawyers.” What Professor Cunningham gleaned was a sense that the legal academy (and the lawyers they produced) had abandoned their charges (that is, the public). Both had broken faith with the people they serve. Now serving only themselves, legal academics and the lawyers they produce, they could only bring failure, or at least a reduction of authority, to their respective professions.
My sense was that Professor Cunningham, echoing perhaps some of the faith based notions of Mr. Barry, was extracting from “Educating Lawyers” the foundational notions that lawyers are priests of a sort, that law was theology of another sort, and that the rule of law in this context pointed toward a set of values and process. Success is possible only within the framework of this set of values and process, mimicking notions of Rechtsstaat (process) and Sozialstaat (substance) from European constitutional theory. I wondered whether one could imbue students (much less lawyers) with a single purpose/values other than ones of extreme generality, where the society in which they operate has increasingly rejected privileging a single set of values or culture (to the chagrin, it is true of traditionalists), and that the privileged classes in the legal academy and elsewhere continue to embrace anti-assimilationist, and anti-subordination models. In that context, the fight over values might overwhelm the task of training lawyers.
Still, Professor Cunningham advanced a proposal to attain the one values-one student-one profession framework: the reform of classroom teaching. The classroom is to serve as a simulacra, of sorts, of real life (or real life to the extent of the life experiences of those involved, deficits on that score hopefully to be overcome through well written teacher’s manuals). This would be woven around the idea of ‘practice with integrity and purpose.’ Professor Cunningham draws support for this proposal from the experiences of the medical schools and the extraordinary effect of the Flexner Report of 1910 in the reconstruction of the ethos and methods of medical education.
There are consequences, though, to following the medical school “revaluation of all values” (to borrow from Nietzsche) model. The first is that public opinion must be enflamed to ensure success that was the road to victory for change in the medical education field). Te second, and most interesting consequence, is that the weak schools will have to close. That was the principal and principally benefit effect of the change in teaching methods and philosophy. Financially marginal schools, recalcitrant schools, found themselves unable or unwilling to change. They lost students, accreditation, and ultimately, existence. But the remaining schools prospered.
William Sullivan spoke last. He made three points. First, professionalism matters in practice and education. Second, because professionalism matters, the current educational model must be changed to one tat called “formative education.” Third, formative education requires a realignment of the profession and professional education.
With respect to the first point, Mr. Sullivan reiterated the importance of shared values and community. Professionalism is that community of values, the content of which was not disclosed in any detail, for organizing workers that serves as a model for all workers in the field. Professionalism marks as different the field of legal production (to borrow from Bourdieu). Other fields of labor production are distinguished by their shared vales as (1) entrepreneurial, or (2) managerial (bureaucratic) ethos models. The entrepreneur model is market driven (and for this reason perhaps is valueless or value malleable and a candidate for direction by more value gifted fields of labor). The managerial or bureaucratic fields are characterized by an ethos of reliability and predictability (the framework, of course, of institutional organization). Only the professionalism fields (and especially law and perhaps the priesthood) are sufficiently sheltered from market and managers to permit action based on independent professional judgment above market and institution.
For the nurture of this professionalism ethos (at least in law), a “formative education” model is necessary. This is distinguished by ways of teaching designed to assimilate certain shared communal values and methods of behavior (both personal and professional) within the profession. The price of admission, then, is assimilation. But this is an ancient understanding in traditional cultures, but assumes away, at some level, the privileging of difference. Perhaps difference does not matter within the realm of the professional. That remains to be seen. There might be some comfort, though, from the analogy Mr. Sullivan used to explain “formative education”—law schools, he suggested, ought to be like tennis camp. My sense, though, was that he had seminaries more in mind than tennis, especially given the focus on “verbal deportment” and the acquisition of appropriate sensibilities (though these were also undefined, and necessarily so, in the talk).
That leaves alignment. For this purpose, like Professor Cunningham and Mr. Berry, Mr. Sullivan would have us use the tools of psychology. Education is the great socialization experience. It ought to be more consciously bent to that task. That got me thinking a little. Though a little discomfited by all this talk of the need to impress uniform values and police the borders of community, I thought, “And why not”—Progressives in the country and Marxist-Leninists in Cuba have always understood the importance of education in this regard. Indeed, legal academics (as well as bench and bar) have become especially proficient in the techniques of policing field borders and communal hierarchies. And given the privileging of science and its techniques in the United States, what better and more painless way than through the employment of the tools of psychology. The suggestion would have us marry the science of the manipulation of human behavior with the inculcation of a single set of values. In a sense, that was what Coke suggested to James I (VI) at the famous meeting in Whitehall in the early 17th century when he sought to defend the prerogatives of the bench (and bar) from a more intimate royal involvement. Perhaps this is the meaning of the joinder of process and substance, manners and values, to which the panelists all alluded. But this was not clear.
The second panel of February 21, 2008, was entitled “The New ABA Initiative to Measure Law School Outcomes.” The panel was moderated by Professor Andi Curcio of Georgia State Law School and included Professor Sally Kift (Queensland University of Technology Faculty of Law (Australia)), Professor Richard Johnstone (Griffith Law School (Australia)), and Hulett Askew (ABA Consultant on Legal Education). This panel moved us from the object—values and practice—to its measure.
First to speak was Sally Kift. Her focus was on the measurement of the “value added” provided by law school. For that purpose, she had participated in a long and complex process in to radically revise (renew, I believe, is the word she used) the curriculum to make is suitable for outcome measurement.
For the purpose of these revisions, Professor Kift focused on four institutional and social elements affecting the environment for legal education. First, she identified the legal and non-legal drivers for course elements. Second, she noted the rise of professionalism in legal education and the move away from law practitioners teaching to the bar qualification. Third, she described the move to life long learning (especially with respect to emerging technologies of law, for example globalization). This bespeaks a “new knowledge” economics. Lastly, she identified a focus on employability, and specifically skills.
Professor Kift then briefly described the changes. She started with a description of a “whole-of-course” approach to the curriculum. This, she suggested, parallels the three apprenticeship model of “Educating Lawyers.” The difficulty was in its implementation. For that purpose, she suggested a focus on learning objectives and the identification of course attributes and discipline specific skills. The result could be complex, though complete. The first step required development of tables of core skills. The object is to move from attributes of courses to skills. Three progressive skill levels were built into the model. The second step required the development of a taxonomy within which to embed skills training. The objective was to determine the relationship between course objectives and a demonstration of ability within each aspect of course objective. To assess such attainment, it was necessary to break down course objectives, and its related skills and demonstration components. Step three involved the mapping of these objectives-skills-assessments into grids. The goal was to break down instruction into its smallest reasonable components, that is a component the mastery of which by students could be reasonably assessed, and then grid these components and assessments for every course. When completed each course is supposed to work like a computer program, and every aspect can be assessed, both from a student and a faculty performance perspective.
The good news is the completeness and uniformity. One can be reasonably assured that a particular set of objectives will be taught to generate experience of a known number of skills the mastery of which can be demonstrated by the students. And, in a sense, this system parallels the focus on the search for a uniform and imposable normative (values/ethics) framework through which to teach professionalism to the bar. The bad news is the same. The cost, at least form an American perspective, might touch on issues of academic freedom. Individual faculty members lose a substantial amount of pedagogical discretion under this system. Yet there is an appeal at least with respect to multi section courses. Uniformity breeds the appearance of equal treatment, a gesture dear to the heart of Americans.
Next to speak was Richard Johnstone of Griffith Law School (Australia). He describes his version of a revised curriculum to meet the changing requirements of Australian law students. He started with a description of what for him was the failures under the old system. Among the most interesting (for me, anyway) was a sense that classical legal education failed to allow students the power to construct their own realities. Additionally the traditional system created incentives for faculty to work in isolation. And the system focused on what students (and faculty) knew, rather than on what they did. It was the need to move to the latter framework that in part motivated the change in curriculum.
Professor Johnstone appeared to suggest a social constructivist approach to learning. Learning was approached as a non-hierarchical activity aimed at facilitating active student learning. The academy is to provide a place where such learning can occur. Guidance not rigidity is the touchstone. Like Professor Kift, there was a focus on refashioning courses to emphasize objectives and assessment. Particular attention was paid to class size. Though this latter objective presents a real resource issue. There was an aroma of Paulo Freire in much of what is going on in Australia (see http://www.paulofreire.org/). While Americans have tended to marginalize Paulo Freire as a crazy Brazilian Marxist, his ideas seem to be more accepted than in the past in substance if not in form.
For that purpose, Professor Johnstone noted that a set of compulsory courses were considered, for example as an addition to the curriculum, among them were legal ethics and legal theory. There was a substantial amount of resistance to incorporating both in existing courses from faculty. This mirrors, of course, the resistance to internationalizing the American law school curriculum. For the Griffith version of curricular reform, Professor Johnstone related to the reliance on Australian “best practices” as developed by elite communities within Australia. He focused on the complex and time consuming methodology for change: (1) the need to focus on a mission statement capable of assessment, (2) an overarching focus on the end product—the graduating student, (3) the cataloguing of necessary legal knowledge to be imparted, (4) a concentration on specific core areas--legal theory, interdisciplinarity, generic expertise, writing/research, and a commitment to social justice, (5) the implementation of core knowledge areas through a “group work” model, (6) legal ethics, and (5) diversity. All of these objectives and attributes were embedded in courses as vertical or horizontal subjects. Verticla subjects were to be taught at different levels of complexity throughout the academic career of the student. In this sense these subjects/objectives were embedded in the curriculum. An example was “group work,” a educational objective to be incorporated in coursework throughout a law student’s academic career.
Professor Johnstone, like Professor Kift, reminded their audience of the need for patience in the process aspects of these changes. There’s was a change to some extent legislatively mandated. Even so, it took a tremendous amount of time, faculty input, debate and administrative expertise to get from conception to something close to application.
Hulett Askew, the ABA Consultant on Legal Education spoke last. He expressed an admiration for the Australian efforts and suggested that nothing so elaborate would be required of American law schools yet. He noted, with some concern, the proliferation of ABA approved law schools. By his count there were now 198 approved law schools with two more seeking approval. In addition, there are 60-70 non-accredited law schools.
He emphasized the ABA’s move from an input to an outcome measure for approval. He suggested that the ABA was, in part, pushed to this new framework by the federal government. The Government, he suggested, was insisting on measurable criteria to support accreditation determinations. And, he suggested, the touchstone of that measure would likely be the students. He was unable to offer much guidance on the characteristics of these new outcome measures. He reminded the audience of the first step in that transformation—the imposition of minimum Bar passage requirements. But he warned that outcome measures would include a number of additional markers. A committee has been created to consider additional measures. They are expected to report sometime in June. Apparently, they may still be receiving comments and suggestions. It appears that few law schools or others have responded to an earlier call for comments.
For those seeking to provide input, comments may be sent to Echris.firstname.lastname@example.org or Randy.Hertz@nyu.edu. Mr. Hulett also suggested that the ABA had no intention, for the moment, of legislating a single approach to outcome identifications or measures. He did suggest that such outcomes and assessments would have to be developed by each law school. Perhaps they might be tied to law school mission. The ABA would then observe the resulting systems. Of course, outcome measures tied to law school mission suggest the possibilities of further differentiation among law schools. The Australian schools provide a peek at some of the bases of fracture—between schools with progressive social justice mission and those training students for academic positions, between those training for solo practice in local environments and those training lawyers for multinational based practice, etc. The possibilities for deepening hierarchies based on mission, as well as curriculum are real.
The Conference’s lunch speakers on February 21, 2008 included Professor Paul Maharg (Glasgow Graduate School of Law) and Dean & Professor Martín Bohmer (founding dean of the Universidad de San Andrés School of Law (Argentina)).
Professor Maharg spoke on “Using 21st Century Technology to Provide Students with Practical Legal Experience.” He demonstrated an example of a complex web based simulation exertcised created with the help of a substantial grant. The simulation exercise operates a bit like The Simms.” It consists of a web based virtual reality city, with lots of people who serve as the clients with problems and their adversaries, agents, onlookers, etc. The students are broken up into teams and attempt to confront and solve their client’s problems. Faculty help create and oversee the functioning of this virtual city. Tutors serve as the front line for teaching, control and assessment. American on line learning entities, like CALI, may be interested in the approach.
There are a couple of caveats. First, the team approach is not for everyone. Professor Mahrang described the systems in place for weeding out inassimilable students (those who do not play well in groups, it seems). Those students are shunted back to traditional courses. There was at least one comment suggesting that those students are the lost likely to need additional assimilation in a group activity. Second, the project is extremely complex and resource hungry. This project is not for the resource strapped institution. On the other hand, were an institution to take it over, schools might be able to license portions for their own use. And there was some talk about licensing the current model as well.
Dean Bohmer spoke of the difficulties of creating a new law school at the Universidad de San Andés. The newness came in two parts. First, the university did not have an existing law school. Second, the law school established is meant to radically diverge from traditional pedagogies used in Argentina for the production of law student graduates. The greatest differences were evidenced by a focus on simulation exercises in the 3rd and 4th years of instruction. In addition, the law school will emphasize clinics in the last year. These clinics will focus on public interest and impact litigation. Dean Bohmer reminded the audience of the differences between civil law and customary (common law) traditional educational models. These, he suggested, were in part grounded in differences in the conception of the nature of law. As he saw it, customary law contained significant countermajoritarian, anti-democratic and constitutional elements. The lawyer and judge is involved in the protection and elaboration of law. Civil law systems, on the other hand, tended toward radical democracy or authoritarian elements. The lawyer and judge are expected to be obedient to the civil authority ad apply law. These differences helped San Andrés develop a curriculum responsive to the civil law origins of the Argentine legal system while profiting from the professionalism elements of a customary law approach.
The first afternoon panel on February 21, 2008 focused on Clinical education in India. The principal presenter was Professor M.R.K. Prasad (V.M. Salgaocar College of Law), with Anna Maria Florez (Georgia State Law Student) presenting her research on this program, along with commentary by Professor Frank Bloch (Vanderbilt).
Professor Prasad provided a detailed history of legal education in India. His paper is well worth a read. He noted that, like legal education in the rest of the English speaking world, controversy over the training of lawyers had been an important part of elite discourse in India at least in its modern form since 1885. By 1949, the Indian elite had sought to implement systems based on an emphasis of the “science” of law, privileging doctrine and reducing the place of ethics and practice in legal education. By 1977, the general view had reversed itself. Since then, clinical education along with ethics and other practice elements had become an increasingly important part of legal educational pedagogy. Part of that process involved the creation of national law schools. The dialogue continues. He spoke of the particulars of the clinical program at Salgoacar and its integration into the curriculum.
Ms. Florez spoke of her work with the legal education cells and its work to provide comprehensive experience in para legal services for Goa law students. The emphasis here was tied to the school mission—activist lawyering. Professor Bloch spoke of a social ideology for the legal profession.
The next panel provided some insight into the new forms of educational materials available for coursework. The emphasis was on the ways in which such materials were substituting for the traditional casebook. The panelists included Stephen Levett (Deputy Director, College of England & Wales), Gene Koo (Berkman Center for Internet & Society, Harvard Law School) and Professor Christian Turner (Georgia State University School of Law).
Stephen Leavitt provided a glimpse into a system in which all lectures were eliminated from the educational program. In place of the lecture system (with the usual nod to practice skills and ethics delivered by specialist), the College of England & Wales moved to a “workshop” system.
The best way to describe it is to suggest its outline:
Preparatory Reading-- iTutorials -- Group Assigments -- Research -- Testing/Assessment
/ / / / /
Workshop (2.5 Hours per week)
Everything revolves around the workshop. Workshop itself is structured as a focal problem from which all education occurs. A workshop is designed for each class, with the focus on practical application. Skills are privileged, doctrine serves a necessary and foundational purpose but is in a sense incidental to the practice aspects of education.
The purpose of the faculty is not to impart knowledge to a passive and receptive student body. Instead, faculty serve a role as facilitators, prompters and assessors of performance. This is student centered learning. Indeed, the object of this form of education was to provide a flexible vehicle to avoid passive learning (now deemed less than an optimal method of learning, though a great method of instruction). There are difficulties, however. It was clear, for example, that this pedagogy worked better in a litigation class than in a tax or other substantive law class. Where the object was to train consultation (solicitor’s work, for example), the workshop would have to be modified, sometimes considerably. But the College of England & Wales is confident of success. He left us with a suggestion that the future of education is a “wikis” approach—from the method of building wikepedia. That is education is moving from a hierarchy of knowledge and its control to a communal engagement in which the boundaries of student and teacher are blurred and students are encouraged to make their own knowledge. This is likely to find a harder road to acceptance in th United states than in the College of England & Wales. Though with an increased emphasis on outcome measurement and product differentiation, this form of pedagogy may appeal to schools who do not seek to rely on traditional markers of status within the educational hierarchy. There is opportunity here in the new marketplace of ideas.
Gene Koo spoke of the future of the casebook. He suggested that casebooks are more trouble than the are worth—except as a marker of prominence within the legal academic hierarchy. Other than as a status marker, casebooks are expensive, take too long to produce, are too controlling, and tend to be out of date by the time (or soon after) publication. Most of them either have too much or too little information delivered in an inflexible format that suggests the power of the author to control the production of knowledge than the value of the knowledge produced for the benefit of the reader. The basic issues are (1) who controls information, (2) who controls what is important to learn, and (3) who controls what is taught. Mr. Koo suggested that the power over these three elements ought to move from author to teacher/student.
For that purpose, Mr. Koo is involved in the development of an alternative to the casebook. He spoke of an “altlaw beta as an alternative to traditional publishers. The heart of this alternative is what he referred to as a “remix culture.” That is, texts based on a community collective of information that could be accessed, used, remixed, copied and distributed to suit the needs of the user. But for me, at least, that is the problem. American academics have become quite used to using texts for the teaching of subjects in which they might be less than completely confident. Indeed, this lack of confidence, and the increasing proclivity of administrators to assign courses without a terribly intense regard for the competences of their faculty, has given rise to a new cottage industry—the “teacher’s manual.” Once a guide to the organization of a particular text, in some cases these have become an important source for the instruction of faculty in the materials that will be taught. In a way this is great for casebook authors—it solidifies their control over knowledge; yet it also affects the ability of faculty to act independently, or even to oversee the independent use by students, of communally available information. Only those confident enough of their abilities will be able to make use of the virtual knowledge in a “remix” culture.
Christian Turner then amplified the points raised by Mr. Koo. He spoke about the rise of open source casebooks. The object is to create a community within which casebooks may be accessed, downloaded, remixed or modified, and then reposted to the community as modified. The object is to share an increasing numb er of iterations of casebooks. People can use what is available, change to suit, and then share. There is an existing experimental site where this can be experienced. See http://www.hydratext.org. In addition, CALI and Harvard’s Berkan Center are cooperating in the development of something called “eLangdell, an open commons where faculty can create and share course materials. (See http://www.cali.org/eLangdell).
The first panels on Friday, February 23, 2008, continued to consider the approaches to changes in legal education undertaken in Australia and South Africa. The first panel was entitled “Transforming Legal Education in Australia.” The `panel was moderated by Professor L. Lynn Hogue of Georgia State University Law School. Panelists included Professor Kay Lauchland (Bond University), Dean Gary Davis (Flinders University), and Deputy Dean Jeff Giddings (Griffith Law School).
Professor Lauchland spoke about the actual nitty gritty of implementing change. The basic warning was that there were no shortcuts. The origins of its curriculum change were from out of a legal education conference. Bond was a small non-elite school with a risk taking faculty sharing a set of care values and aspiration. They were not tied to elite power and incentive structures and were thus better able to approach change flexibly. Notwithstanding, the process was long and very challenging. Professor Lauchland also warned of the dangers of selling the completed project, and the importance of the care and maintenance of the project when completed. All of these functions cost a tremendous amount of faculty and financial resources.
The centerpiece of the Bond program is an incremental, integrated skills training program, a program now almost fifteen years old. The object is to develop a set of micro skills embedded in a number of courses. Legal skills is not considered a separate course but has been assigned an administrative coordinator to ensure appropriate embedding in designated doctrinal courses. Research modules are also embedded in a variety of courses. The emphasis in embedding include the following: research/analysis; writing/drafting; alternative dispute resolution; advocacy; and interviewing.
Dean Gary Davis spoke of the work of the Carrick Institute of Learning and Teaching in Higher Education (http://www.carrickinstitute.edu.au/carrick/go) and its discipline based initiative
“The goal of the Carrick Institute Discipline-Based Initiatives (DBI) Scheme is to generate discipline specific agendas that can be drawn upon for curriculum regeneration and productive engagement among stakeholders with the aim of improving learning and teaching in higher education. In designating Discipline-Based Initiatives as a priority, the Board of the Carrick Institute has drawn on a range of evidence that points to disciplinary affiliation as the primary site of engagement for the development and dissemination of good practice in learning and teaching. The DBI Scheme provides an important opportunity to encourage greater sharing of quality practice, initiatives and learning within and across discipline communities. This Scheme promotes the Carrick Institute's objectives relating to the provision of discipline-specific development, dissemination and application of good practice.”Carrick Institute, Discipline Based Initiatives, available at http://www.carrickinstitute.edu.au/carrick/go/home/dbi (DBI papers available for download at that site).
Dean Davis described the Degree of Bachelor of Laws and Legal Practice, which was introduced by Flinders Law School in 1999. The basis of this program is grou8nded in a set of linkages/affinities. These include professional identity/legal institutions; and practical skills/professional conduct (through negotiation and drafting courses). There is also a contextual component (social, political and access to justice issues), generic professional identity, and the development of ethical disposition (treating ethical dilemmas and their resolution). He described methodology using the ethics course as an example. Methodology is divided into three categories. First, is how (mandatory or optional course). Second, is when (first course, last course or embedded materials). Third is mode of delivery (lectures, tutorials, workshops, on-line or via placement.
Jeff Giddings described the process of curriculum reform implementation through his own experiences. The process took 18 months. Authority was delegated ot a committee vested with substantial power. He urged carefully choosing committee members. His suggestion was to include representatives of opposing sides to maximize the probability that all arguments will be vetted early. There ought to be extensive consultation to achieve wide buy in among faculty and other constituencies. The focus ought to be to limit workloads where possible. Opposition mounts the more likely that reform translates into more work, and committee commitment to the process evaporates the greater the distractions of other obligations. He also urged using focus groups (especially for student input) and extensive consultation with the bar and bench.
He noted that implementation took four years in the case of Griffith. He noted the following as critical to the success of that 4 year effort:
1. comprehensive discussion: free, open and genuine. Staged conversations, or conversations that are understood not to be free will backfire.
2. Requires long term and extensive support from the dean and university administration; but support does not mean domination.
3. Requires financial support and resources form the university
4. Facilitation and mediation skills are useful for the Committee chair
5. Have to aim to reach the tipping point (enough faculty support to make it more likely for the reform to happen)
6. Committee should continue to meet during the approval process (even though the approval is out of their hands).
7. A successful committee should have a pedant and an obsessive.
8. Requires leadership continuity
9. Requires outside evaluation of efforts; he noted that this is very tricky.
He noted that it was important to respond to all feedback, no matter what its quality. It is important to continue to work at home to persuade skeptics. This may require open mindedness and a willingness to be flexible and perhaps incremental. It is also important to have back up personnel to make changes when people “hit the wall.”
It was also important to remember that managing resources is important. The process usually takes longer than the attention span of most university administrators and deans. Also, while change is uncomfortable, forced change is worse. Where it is clear that change is coming (especially from outside) it is easier to take control of the process than to let it happen.
The next panel, moderated by Professor Jonathan Todres (Georgia State University Law School) focused on “Transforming Legal Education in a Transformed Society: The Case of South Africa.” The panel featured Professor David McQuoid-Mason (University of KwaZulu-Natal), Tiffany Williams and Nichole DeVries (Georgia State University College of Law students), and Edward O’Brien (Executive Director of Street Law, Inc.).
Professor McQuoid-Mason focused on a description of the chaging landscape of legal education post-Apartheid. The three key areas of concentration are law in a plural society, skills, and the training in ethical values. This is legal education deliberately focused on a changing society and aiding in the effectuation of that change through a focus on training in skills and mission. The striking thing about this discussion is the similarity with the Australian (and likely the American situation as well). The push for innovation seems to come first from the lower tiered schools least connected to the elite educational institutions and their incentive-reward structures. In this case, innovation originates in a traditionally Black school, with resistance felt most strongly in the old elite white dominated schools with the most prestige.
The student presentations focused on their work with the incorporation of the Street Law program through KwaZulu’s programs in Durban. Street Law has been incorporated as a clinical option for KwaZulu students. It seeks to institutionalize a preventative legal education program based on community interaction, law lessons to communities to raise community social consciousness. In this sense it is meant to b more than a community service project—it incorporates a skills component based on the law school’s social justice mission.
Edward O’Brien is the founder of the Street Law Program. From its origins at Georgetown in 1972 it has become a global organization. It has developed simulations as a powerful teaching tool used by a growing number of universities worldwide. Mr. O’Brien emphasized the value of legal education as consciousness raising. Again, tying into the discussion of community values and standards, he suggested that legal education had a moral mission based on social justice. That is what serves the South African legal community (at least at the non elite level) so well. Of course, I continue to wonder who controls the consciousness being raised—or for that matter the goal. In plural societies that may be a tall order to get right.
Among the more interesting panels for American legal institutions was the next panel, moderated by Professor Douglas Yarn (GSU College of Law), in which law deans from schools ranked from the 1st to the 4th U.S. News tiers, discussed “Transforming Existing Law Schools: Process.” The panelists included Suellyn Sarnecchia (New Mexico), Richard Seamon (Associate Dean, Idaho), Edward Rubin (Vanderbilt), Brett McDonnell (Associate Dean Minnesota), and Peter Joy (Professor, Washington University) What emerged quite starkly was the way in which resources and status within the American legal academic hierarchy will increasingly affect the way in which the insights of “Educating Lawyers” and any potential regulatory mandates flowing therefrom will be implemented. It is clear that the changes to come will increase the stratification of legal education in form and substance for years to come.
Dean Scarnecchia emphasized the way in which New Mexico was thinking about adapting to the Carnegie Foundation report. For her, the signature pedagogy of New Mexico was its insistence that all faculty teach in the clinical program. This accorded with the intention of New Mexico to directly confront the suggestions of “Educating Lawyers” and try to figure out how the faculty could adjust to meet its goals. She admitted this went against the grain and certainly the status structure of American legal academic institutions. But no matter. Dean Scarnecchia argued that there are strong benefits to the New Mexico model with its mandatory clinic and faculty rotation into the clinic—students are better prepared for practice, it was healthy for faculty to move between doctrinal and practice courses, and the clinical program “screams out to students.” But she noted the obstacles to the model: the tenure system, teaching to students who do not intend to practice, the class system within the legal academy between clinical and doctrinal faculty, accreditation issues, resources, and status issues. With respect to the latter point, she noted the power of the U.S: News rating system and the culture of American academic institutions. These status battles she suggested are holding the practice element back from full acceptance on a equal footing with doctrine.
Ed Rubin, speaking about his experiences as Vanderbilt dean, emphasized this last point. Like Dean Scarnecchia, Dean Ruben and Vanderbilt wanted to rethink legal education. But the focus and method of that rethinking at Vanderbilt has followed a different path. For Vanderbilt, rethinking legal education means content (incorporation of globalization issues and other new areas of law, especially as practiced at an elite level), and pedagogy (moving to a progressive learner centered education model).
The methodology of that rethinking, for Dean Ruben, involved a lot of “nemowashi”, the Japanese term for extensive consultation before formal meetings to bring people on board and avoid dissension during the meeting itself. Dean Ruben noted that change in law schools involve a never ending attention to process issues—there is never enough process to satisfy everyone. He did not like the traditional form of faculty governance through committee. He suggested that thus system was inefficient for two reasons. First, it misused faculty time that might be better send on status enhancing activity (research and writing, conferences and the like). Second, most faculty do not have sufficient experience (or interest) to govern well. Except, perhaps, with respect to appointments. The solution to this governance problem was easy—at least in retrospect. Dean Ruben simply declined to name faculty to committees. There was little protest. The power vacuum, or at least the governance vacuum, was presumably filled by those better able to govern—administrators and their agents. One might think that this would make faculty unhappy. But the opposite apparently is the case. The reason was the substitute for governance—curricular governance and money. In the dean’s own word:
The basic idea regarding the upper class curriculum is to establish concentration programs that will enable students to focus on a particular area of law during the course of their second and third years. To implement these concentration programs, faculty members were invited to join together in groups and develop a plan for a coherent curriculum in their field. The only general rules given to these groups are that the curriculum should provide more intensive training for students in its particular field, and that the curriculum should progress from the second year to the third. Faculty members can choose which group or groups to join, and cannot be excluded from any group so long as they are willing to be active participants in its activities. The Dean appointed one faculty member in each group to be its director. Each group has a budget that it can use to run conferences, invite speakers, and provide supplementary funds to its participating faculty members for travel and research. The groups also have the authority to choose short courses visitors and adjunct faculty in their area, and to negotiate with other schools or departments to develop interdisciplinary programs. The additional funds for these latter purposes are derived from decentralization of the Law School visitor and adjunct budget. To enable faculty members to devote time to participating in these groups, all administrative committees at the Law School with the crucial exception of the appointments committee were abolished. Thus, the administrative staff handles admissions, physical plant renovation, student relations, placement, and similar functions.Edward Ruben, Conference Abstract (http://law.gsu.edu/FutureOfLegalEducationConference/abstracts.php#Ruben). An excellent idea—but one that requires money, resources, and time. But none of this focuses on the practice and ethics integrative philosophy of “Educating Lawyers.” Nor should it necessarily. Nothing in “Educating Lawyers” suggests that integration of the curriculum has to be built around single faculty members multitasking. At elite universities increasingly populated by faculty who are not licensed to practice law, integration comes with multiple faculties—doctrinal, practice and ethics. This may be beyond the abilities of all but elite law schools. The differences between Vanderbilt and New Mexico is a telling study in contrasts.
Sitting between Vanderbilt and New Mexico on the status ladder is Minnesota. Its representative, Brett McDonnell, had a slightly different perspective. Dean McDonnell focused his presentation on the first year curriculum. Minnesota has instituted a new course in the first year—The Work of the Lawyer. This course includes simulations, counseling practice, reflective lawyering and ethics. In addition, Minnesota provides a number of first year electives: (1) civil procedure, (2) international law, (3) business law, (3) perspectives on the law (team taught). Statutory interpretation is now part of a mini course integrated into the legal writing program. The process to get to these changes was complicated. It involved an initial design that was the product of many meetings, the evaluation of lots of ideas, and the generation of a substantial level of support. Implementation and evaluation of the changes presented their own difficulties. In a sense, Minnesota has chosen something of a middle course. It has segregated the integrative model suggested in “Educating Lawyers” within the general framework of an otherwise unchanged legal education structure. A few additional courses, some additional simulations and ethics courses are added. Additional faculty and related resources follow. But the bulk of the enterprise remains unchanged—and able top participate in the status projects that mark the legal education industry.
Peter Joy of Washington University spoke of outcomes focused education. He suggested the importance of benchmarking in going forward with modifications to the programs of instruction offered by accredited institutions. He notes that, like in South Africa and Australia, the loudest call for change is not coming from the comfortably established elites. In this American case, it originates with the clinical law faculty, one which, in many institutions, is subject to a de facto or de jure separate but somewhat equal status regime. Thus, Professor Joy notes that “Best Practices for Legal Education, published by the Clinical Legal Education Association, starts from the assumption that there is a compelling need for significant change in legal education in the United States.” Peter Joy, Abstract. He also noted that outcomes focused education is becoming the norm globally and will impact American legal education. “An important step is to articulate clear educational objectives for the program of instruction and, preferably, to describe those objectives in terms of desired outcomes.” Id.
Last on the panel was Associate Dean Richard Seamon. Like Penn State five years ago, the University of Idaho, a lower tiered school, is undertaking the interesting objective of creating a single educational institution on two geographically separate campuses. Dean Seamon spoke to the difficulties and opportunities of such an effort. Unlike Penn State, the University of Idaho is starting this process with a unified faculty and administration, much consultation and substantial support from all sectors. Unlike Penn State, the University of Idaho will emphasize the distinct character of each campus. The Moscow campus will emphasize Indian and natural resources law. The Boise campus will emphasize business and intellectual property law. Despite the different missions, the two causes will be bound together using the techniques of the “Educating Lawyers” educational integrative approach. Or at last that is the plan. To get there, the University of Idaho expects to use ongoing assessments to build and document competences. But the project is in its inception and much remains to be planned and done. What is clear is that “Educating Lawyers” might well play a significant role in the construction of the educational program at Idaho.