Why ASP?

An asp.

Today we will be welcoming a new class of 1Ls to UCI Law.  It is my job to introduce them to and interest them in the Academic Skills Program.  In thinking about how to do this, I was again struck by one of the fundamental challenges of communicating with 1Ls in the earliest days of their legal education, which is that they have not yet had the types of experiences that allow them to contextualize the information you are giving them.

Within a few weeks, the 1Ls will understand what ASP is and why UCI Law has such a program.  But how to communicate this understanding to the 1Ls today, before they have sat through their first law school class?

"ASP" is also, unfortunately, apparently the name of a German goth band.

Here is what I plan to tell them.  We’ll see how it goes.

***

(1) One of the important truths about law school is that it is a unique educational experience unlike any educational experience you have had up until this point.  For example, you probably did not have something like an Academic Skills Program in your undergraduate or other graduate school experience.  So what is ASP and why do law schools have these programs?

(2) The views of upper-class students can provide some guidance in answering this question.  I recently spoke with a group of 2L and 3L students, and asked them to reach back in the recesses of their memory to the beginning of their 1L year, and see if they could identify something they didn’t know when they started law school that would have been helpful to them had they known it.  For a few minutes they struggled to remember what it was like not to know what it meant to be a law student and to study law.  (Which is a testament to how thoroughly transformative the first year of law school can be.) 

When they broke through and re-connected with that earlier version of themselves, a common theme emerged.  Namely: they wish they had appreciated how different law school would be from their other educational experiences.  Obviously, the substance of what you learn in law school is different.  Less obviously: the way you learn is different.  And the way you are expected to perform–to demonstrate what you have learned–is different as well.

I’ve said it before: in my view, law school is not an “advanced liberal arts degree,” as some claim.  It’s more as if you studied philosophy as an undergrad and then ended up in graduate school for chemistry.  Or if you studied mathematics, and are now suddenly endeavoring to become an expert in Russian Literature.  You can do it, but it is a radical shift to a subject matter and intellectual discipline that is fundamentally unfamiliar to you.

Which is to say that part of successfully navigating law school is to recognize that we are novices in the field when we begin our studies.  Before law school, many of us think we know at least a little bit about law.  We are aware of the legal system and the political system; we are proficient in the English language, which is the operative language of American legal practice; we have read and seen countless portrayals of attorneys and their courtroom antics.

All of this is misleading.  Legal analysis is a unique, extremely precise, and highly disciplined system of thought with its own rules, conventions, concepts, language and values.  Learning so-called “black-letter law” is only the tip of the iceberg.

This is not meant to be discouraging.  Rather, it is my belief that to appreciate the intellectual challenge of law school is to be empowered.

(3)  But even if you agree with all I have said above, you might respond that this has always been true–law school has always been a unique intellectual challenge that students have struggled to grasp and master.  So why are law schools developing academic support programs now, and why does UCI Law in particular have an Academic Skills Program?

To make you better lawyers.  There has been a groundswell of criticism of legal education for its failure to produce so-called “practice ready” lawyers–that is, lawyers who are prepared for the practice of law the day they graduate from school.  In support of the goal of graduating students who have a strong grounding in both the theoretical and the practical, ASP has a role in overseeing what skills students are acquiring throughout their legal education and assessing whether we are teaching those skills effectively.  To the extent students feel that they could benefit from additional practice and feedback with respect to particular skills, ASP can provide that opportunity.

To make you better law students.  To generalize, the traditional model of legal education was very much a “sink or swim” approach where expectations for academic performance were not made explicit, and the students who succeeded were the ones who could figure out this “hidden curriculum.”  Progressive models of legal education seek to make the expectations and tools of academic performance explicit, and thus shift the focus to students’ ability to implement those tools.

To support diversity in law schools and in the profession.  We can easily imagine that 100 years ago, law students came from a relatively uniform social, cultural, economic and academic background.  Today, we seek to admit student bodies that are diverse by all of these measures.  With this diversity come different orientations to the intellectual task of law school.  By making academic expectations explicit, and providing all students with the tools to meet those expectations, we level the playing field so that students can be evaluated on their individual merits.

***

So that’s the plan.  Wish me luck!

Lawyers; Golf; Martinis

I read J.D. Salinger’s “Catcher in the Rye” for the first time just a few months ago.  I’m not certain why I didn’t read it earlier.  It’s hard to believe that the book would have still been viewed as “controversial” by the late 1980s, when I was in highschool.  But it may have been, or perhaps there was an entirely different reason it was absent from the curriculum.

At any rate, I can imagine that the book would have affected me very differently as an adolescent than it did reading it now as an adult.  It seems that most adolescents invariably identify with the book’s sullen protagonist, Holden Caulfield, and for good reason.  Holden gives voice to a profound sense of alienation and confusion that resonates deeply with the experience of adolescence, for many.

As an adult reading the book, I was much more focused on the ways in which the adults in Holden’s life were failing him: failing to understand him, to listen to him, to perceive his obvious—if unruly—intelligence.

And as an attorney and a teacher of future attorneys, one passage in particular jumped out at me.  It appears near the end of the book, on the page immediately preceding Holden’s revelation that what he wants out of life is to be “the catcher in the rye”—an adult who looks out for children who are lost or in danger; the exact person missing from Holden’s own life.

Holden comes to realize that he wants to be the catcher in the rye in the course of a conversation with his younger sister, Phoebe.  She is worried about Holden and his malcontent ways, and is trying to figure out what her big brother will do with his life.

Phoebe asks Holden if he might become a lawyer, like their father.  To which Holden replies:

“Lawyers are all right, I guess — but it doesn’t appeal to me,” I said.  “I mean they’re all right if they go around saving innocent guys’ lives all the time, and like that, but you don’t do that kind of stuff if you’re a lawyer.  All you do is make a lot of dough and play golf and play bridge and buy cars and drink Martinis and look like a hot-shot.  And besides.  Even if you did go around saving guys’ lives and all, how would you know if you did it because you really wanted to save guys’ lives, or . . . you did it because what you really wanted to do was be a terrific lawyer, with everybody slapping you on the back and congratulating you in court when the goddam trial was over, the reporters and everybody . . . ?  How would you know you weren’t being a phony?  The trouble is, you wouldn’t.”

What is interesting is that Holden acknowledges that at least some lawyers do what Holden himself wants to do: to “save guys’ lives”; to help people.  But he nonetheless has disdain for the profession, because even those lawyers that do help people are tainted by their class aspirations—their desire to “play golf and play bridge and buy cars and drink Martinis and look like a hot-shot,” or at the very least to appear successful and powerful.

Tool.

Most damning is Holden’s belief that lawyer’s themselves are not even aware of their own motivations, and, indeed, cannot separate out their altruistic goals and their desire for personal and social power.

Part of me thinks this is true.  That even those who desire to dismantle the master’s house have committed themselves to acquiring the master’s tools (as manifested by the decision to go to law school and become lawyers), and through this process necessarily relinquish some understanding of those who are disenfranchised.  More than that, we necessarily come to identify to some extent with the class that has traditionally been empowered to move the levers of the law.

To return to a theme touched on elsewhere in this blog, resisting this impulse requires careful and intentional cultivation of a sort of double consciousness, where you acquire sufficient markers of the professional class to communicate effectively with others belonging to that class, while at the same time preserving the values and wisdom you had before you became a lawyer.

Who are the Outsiders?

Usually translated as "The Stranger," this choice of language conveys a significantly different meaning.

Recently I was talking with some of my colleagues here at UCI Law, discussing the need to empower students to make informed decisions about how to best pursue their legal education.  And my colleagues expressed surprise at my belief that students need to be empowered.  So I started to examine the basis for my assumption.

I realized that when I think about what makes for effective teaching, I always think about it from the perspective of effectively teaching a theoretical student who is an underdog or outsider in some way.  In fact, it is my committment to seeing these students succeed that fuels my passion for teaching generally and for academic support work in particular.

But what exactly do I mean by an “outsider” law student?  I don’t think there is any one, clear definition.  My sense of this category comes from the myriad  individuals who have sat in my office over the years and told me about their successes and struggles as law students.

For some students, they feel like outsiders because they come from a racial, ethnic, or social group that is underrepresented among law students and lawyers.  For others, it is the fact that they are the first in their family to complete college, much less pursue an advanced degree.  For others still, it is because their only prior experience with the law is being on the wrong side of it.  Yet another example: I have worked with many students whose demanding family lives have pulled their energy away from their studies, leaving them less engaged in and comfortable with the persona and experience of “law student.”

Just as there are different reasons why students might feel outside of the experience of law school, there are different degrees of alienation that a student may experience.  On one end of the spectrum are students who are struggling across-the-board with the peculiar intellectual and social demands of law school; these students may be on academic probation or otherwise in danger of dropping out.  On the other end of the spectrum are “high-performing” students who nonetheless feel alienated because they can’t imagine working in the conservative environment of a large law firm (the path they assume they are destined to follow).  Somewhere in the middle you might find students who are fantastic writers and are holding their own in law school, but who are under-performing on their exams because of a quirky, creative way of thinking. 

Further adding to the complexity of this portrait: It is entirely possible for a student with “objective” indicators of outsider status to nonetheless not experience this as interfering with his or her academic performance in law school. 

In short, we focus on LSAT scores as a predictor of success in law school, but the real story of who experiences barriers to optimal performance and why is much more complex.

***

It is probably apparent at this point that my goal is not to get students to obtain a certain GPA or to pass the bar per se; rather, I see these accomplishments as the natural result of cultivating a rigorous yet rewarding educational experience over the three years of law school.  What constitutes optimal performance will be different for every student, but all students should be supported in removing any unnecessary barriers to achieving that level of success.

***

The other piece of this story is that I’m not sure that the mythical “insider” or “typical” law student exists.  A couple of years ago at an orientation event, I asked students to describe the characteristics of a typical law student.  One of the most important markers for this imaginary person was that his parents were lawyers, or at least someone close to him in his family was a lawyer, and therefore he understood and felt comfortable with the legal system in a way that others did not.

But when polled, the majority of students in the room did not identify with this supposedly “typical” law student for one reason or another.  Which raises the question of whether this student actually exists.

And I’m not sure it matters.  The much more important inquiry is what are the characteristics of the student we as law professors imagine when we set out to teach?  Do we assume that there is a lawyer in their family?  Do we assume they grew up in this country?  Do we assume that they understand the difference between the state and federal court systems?  Do we assume that their undergraduate education was rigorous in terms of developing their writing and oral participation skills?

I am by no means suggesting that every law school professor attempt to address every possible iteration of law student—we have to formulate fair and reasonable assumptions in our teaching.  But as we admit increasingly diverse law school classes, there must be a mechanism for providing additional support to students who do not meet our un-articulated norm.  This is how, to me, the mission of academic support is at least in part about leveling the playing field to create conditions where individual students can maximize their performance.

The Shock of the Loss of Personal Narrative

I found this wonderful image at http://minoritylawstudents.org.

This set of thoughts just came together for me this morning, so forgive me if they are as yet poorly formed.

What I was thinking was this.  A lot of us get into law school based in part on our personal statement.  Strong LSAT scores and GPAs are necessary prerequisites, but not sufficient in and of themselves to garner admission.  What separates students with similar numeric indicators may well be the quality of their personal statement (and possibly their letters of recommendation).

I remember quite well the personal statement I wrote for my law school applications.  It was personal to the point of being intimate, somewhat shocking, and very provocative.  It vibrated with feminist fervor, not presented pedantically, but through a personal story.

Indeed, as a young feminist, my studies and my instincts convinced me of the power of personal narrative in the service of finding truth and fairness.  It was through personal narrative that we could begin to partially understand “the other,” a necessary prerequisite for justice.  (Needless to say, this is a key insight of critical studies in general, including Critical Race Theory.)

But whether one is a feminist/crit or not, the fact that law school applications generally require a personal statement compels prospective law students to look at themselves, understand themselves, and narrate themselves.  To describe how they are unique, and how they will make a unique contribution to the field of law.

I was reminded of this when I recently started looking at the admissions fora on “Top Law Schools,” a website that a colleague told me about, where law students and prospective law students come together to talk about schools and the admissions process with the security of anonymity.  A number of students had posted their personal statements for comment by others.  To a one the short essays were compelling, engagingly written, and committed to finding meaning through subjective, personal experience.

And what struck me is how this urgency of self and subjectivity and personal narrative must fall away from the very first day of law school.

Law school is not about the self in part because it is about the client.  This is not always readily apparent to 1Ls, but the reason they are being taught to abandon their instinctive sense of justice is so that they can craft succesful arguments that resonate with the purportedly objective, rational system of the laws (and powerful legal actors, including judges).  And they will make these arguments, of course, on behalf of their clients.

It is also not about the self in the sense that Elizabeth Mertz observed the implicit values orientation of legal education, which I described in an earlier post as follows:

In learning to speak [the] language [of law] and “think like a lawyer,” law students must embrace an abstract, professional identity that is divorced from any sense of identity that is different or particular to a given community.

http://susannahpollvogt.wordpress.com/blog-in-book-order/ch-2-defining-the-problem-review-of-elizabeth-mertzs-seven-propositions/

Mastering the skill of thinking like a lawyer necessitates a certain distancing from the unique, subjective self.

We get into law school by articulating our uniqueness, and then begin shedding that uniqueness the moment we cross the threshold of legal education.

I still remember clearly—and have written about this previously—sitting in my first year torts class, and the class being asked to determine and justify the proper rule of law for a particular torts case.  And the intellectual task was to suppress your instinct to identify with or care about the plaintiff’s story, but to instead consider objectively what rule of law best allocated costs across society.  We were taught to think of parties not as humans, but as “least cost avoiders.”  The perspective of the individual had to yield to the need for social order.

I am not saying that this approach is wrong, but I am saying that it is shocking and disorienting, at least to some of us.

There are exceptions to this rule.  One of the reasons I enjoyed my clinical experience (representing individuals applying for asylum) so much was that we were permitted—indeed required—to focus on our client as an individual, to tease out the details of their (often excruciatingly painful) stories, to understand them on a personal level.  This intellectual practice felt familiar and right to me.  But, needless to say, it did not have much of a place in other classes, where a more traditional form of legal analysis was required.  As a student, I not only fought the hypo, I rebelled against the entire way of thinking, to my own detriment.

As a teacher now, I focus on teaching students a very strict, very logical and formulaic pattern of legal analysis.  This is because, at the end of the day, I actually believe that this is the language that lawyers must speak in.  When I look at some of the United States Supreme Court’s worst decisions on issues of human/civil rights (easy targets being Plessy v. Ferguson and Bowers v. Hardwick), I see failures of logic, not failures of empathy.  Failures of empathy are certainly there, but if our arguments rely on judges having empathy for even the most dispossessed, marginal client—that strategy is surely folly.  Judges understand logic.  We are capable of arguing with logic.

And I also believe that logical argument can incorporate personal narrative to great success.  Developing a relevant, persuasive personal narrative is an expert skill in terms of working with facts, and can make the difference in a given case.  But it must be wed to principles that, while not objective, are at least agreed upon and thus the starting point for dialogue.

I suppose what I try to do differently when I teach is to explain why we need to downplay—or at least find the proper place for—personal perspective, and instead become fluent in the language of law.  It is ultimately to serve the ends of justice.  Something I did not understand when I was a student myself.

Engaging Students in Socratic Dialogue – Post Script

I realize that this young woman is probably like 12 years old, but I really love it as an image of a student thinking through writing. So there.

In addition to the techniques mentioned in my last blog post, law professors looking to increase student engagement might also consider the following: after completing a socratic dialogue with one student, ask all of your students to take a moment and reflect on what they think they were supposed to learn from the exercise.

This technique—asking students to consider and articulate learning objectives—can be used in conjunction with any type of exercise, including socratic dialogue.  It keep us on our toes by requiring that we be clear about why we are using certain teaching methods, and pushes students to think about and recognize how they are supposed to be learning in law school.  If we believe that we are teaching students to “think like a lawyer,” is that in fact what they are perceiving and experiencing?

Improving Our Ability to Engage Students – Variations on the Socratic Dialogue

From: http://www.postcardfromholland.com/still_life_pear.html.

I have sat in the back of the classrooms of accomplished, engaging, beloved law professors who routinely receive excellent student evaluations, and watched as 70% of their students turn unceremoniously away from their notes, instead perusing gmail, ESPN, and Zappos during class.  Not for the whole class, and not during the portions of class where the professor is lecturing.  Instead, laptop screens flip en masse at one, distinct moment: when the professor is engaging another student in socratic dialogue.

This is unexpected from one perspective, as socratic dialogue is supposed to be the “experiential”—or at least the active-learning—portion of large 1L classes, and one would therefore expect socratic dialogue to be relatively engaging.

Why, then, are students tuning out?

We could blame it on the technology of laptops, but I would venture to guess that in the pre-laptop era something similar happened on a purely cognitive level.  Students in the 1970s weren’t perusing websites, but maybe their minds wandered to last night’s big game or a fantasy shopping spree.

Today’s students don’t tune-out because of their laptops, although laptops clearly facilitate the process.  Students tune out because they don’t understand what they are supposed to be learning by watching the professor question another student, particularly when that student seems to have little hope of reaching the “correct” answer the professor is searching for.

Fortunately, there are some simple, tried-and-true techniques to increase student engagement and participation even in very large classes while still employing an essentially socratic methodology.

(1) The pre-write.  Pose the initial question in your socratic dialogue, and have all students take 1-2 minutes to draft an answer.  Then decide which student to call on.  You can repeat the process throughout multiple stages of the socratic questioning process.

Having students pre-write the answer they will then present orally has several advantages.  First, it prompts students to do what they should be doing during socratic questioning of their classmates: considering how they would answer the question themselves if they were on the hot-seat.

Second, you will get better answers to your questions, as students will have had a moment to reflect on their answer prior to articulating it.  (And this is not contrary to good oral argument practice, which socratic dialogue is meant in part to emulate.  Excellent oral advocates often take time to stop, think, and even jot down a few notes before answering a judge’s question.)

Third, this technique alleviates some of the anxiety around class participation, and you may find a broader and more diverse segment of students voluntarily and confidently participating in class.  Indeed, pre-writing is a valuable technique for the independent purpose of supporting diversity and inclusiveness in the classroom.

(2) Pair and share.  I sort of bristle at the touchy-feely sound of this technique, but it is so successful in engaging students (and other audiences, for that matter) that I can hardly quibble with it.  It is a simple alternative to the pre-write.  Instead of having students jot down notes prior to answering a question, have them take 1-2 minutes and turn to the person sitting next to them to discuss how to best answer the question.

Again, this approach has several positive effects.  Students are both more relaxed and better prepared to answer the question.  Further, they begin to form bonds with their peers (this effect is especially apparent when the technique is used at conferences, where attendees can otherwise often go several days without getting to know one another).  Finally, students begin to learn how to work cooperatively, and how to discover understanding through dialogue.

Determining the Relationship between Academic Skills and Lawyering Skills: A Foundations Manifesto

As you can imagine, the word "manifesto" is used in a variety of contexts, some less convincing than others.

First, by way of update, I have recently accepted the position of Director of Academic Skills at UC Irvine School of Law.  “Academic Skills” is my suggested (though not yet officially approved) moniker for what would otherwise be termed an “Academic Support” program.  I don’t really have a problem with the concept or term “Academic Support,” except that I think it is somewhat vague in describing what such programs are actually seeking to provide.  And this vagueness may be appropriate, as there are as many types of academic support programs as there are law schools.

My primary intent in naming our program “Academic Skills” is to bring attention to the fact that there is a distinct set of academic skills unique to legal education, and these skills must be identified, practiced and honed for success in law school and, as a corollary, success in the profession.  These skills—including but not limited to the ability to decipher various types of legal texts, understand the nature and function of legal analysis, and construct analyses based in logic—are an essential component to the law school curriculum and should be taught accordingly.

On a related point, I also mean to convey that academic skills are relevant to all students, not just students who are “struggling” by one measure or another.  It is true that some students will need to engage more intensively in an academic skills curriculum than others, depending primarily on prior educational background (including not just the quality of that education, but the student’s undergraduate major and the intellectual practices of that major).  Nonetheless, every law student needs to master these skills, regardless of their particular path to doing so.  A critical role of academic support programs, accordingly, is to provide multiple entry points to that curriculum.

***

I have maintained for a while now that academic support programs are at the forefront of a larger shift in law school pedagogy: namely, the shift toward explicating what I refer to as the “hidden curriculum” of legal education.

(1) Great typographical design; (2) a book I would like to read.

In a recent presentation at DU Law, David Nadvorney of CUNY Law (http://www.law.cuny.edu/faculty-staff/DNadvorney.html) demonstrated the existence of a “hidden curriculum” quite succinctly.  He asked the faculty audience to describe the worst aspects of students’ academic performance.  The responses varied but clustered around the observation that while students might “know the law,” they don’t know how to apply it to specific facts in an organized, critical analysis.

Then David asked, “And where is that skill listed on the syllabus?”  The point being that in the majority of doctrinal classes, legal analysis is implicitly on the agenda, but not explicitly indicated on the syllabus as part of what students are supposed to be learning.

Indeed, under more traditional models of law school education, much of what we actually expect students to do when they sit down for a law school exam (or a summer internship, for that matter) is not taught directly.  Traditionally, doctrinal classes delivered substantive knowledge and students were expected to acquire legal analysis skills presumably by mimicking the analyses of their professors, or perhaps the analyses undertaken in the appellate judicial opinions students were reading as a source of the doctrinal law.

But these are not modes of explicit instruction.  They are not explicit in that students are not told that performing legal analysis is the part of what they are supposed to be learning (not just substantive doctrine), and they are not explicit in that the steps necessary for a comprehensive legal analysis are generally not named or systematically modeled and practiced.

And if we find that at least some students are (1) failing to learn the fundamentals of legal analysis required to perform well in law school and (2) graduating without the legal analysis expertise to make them “practice-ready,” then surely it is time to examine our teaching methods.

***

Explicating the hidden curriculum is important for at least one other reason.  Although I do not yet have the empirical data to back this claim up, my intuition is that this traditional mode of teaching—where there is an extensive “hidden curriculum”—is harmful to diversity and inclusiveness.

Why?  Indulge me in deploying a sports analogy.

If you are new to this blog you don't yet know that I pride myself on illustrating my posts with images that relate only marginally to the subject at hand.

Let’s say you wanted to put together a basketball team.  If you had five players who had all played before, and let’s say their parents were basketball players too and had practiced and talked about the sport with their kids for years, you as the coach could probably skip a lot of the fundamental drills in dribbling, passing and shooting, and focus more on running plays, high-level conditioning, and preparing for games.

But let’s say you wanted to put together a team with players from diverse backgrounds, including some players who had never handled a ball before or laid eyes on a basketball court.  All of your players are athletic and theoretically have the potential to perform well, but they have different levels of skill and experience with respect to the particular sport.  If there is any hope of bringing these players up to the level where they can display whatever talent they may have, you would have to offer extensive opportunities for them to learn and practice the foundational skills of the game.  Otherwise only those players with prior experience will perform well and you will never know the full extent of other players’ talents.

So the idea is this: If you are teaching a diverse audience and you don’t teach foundational skills, then you are showing enormous favor to those who either have prior experience or are simply prodigies.  In law school, these would be students with a family history in the legal profession, whose undergraduate experience prepared them for the rigors of law school, and/or students with a natural aptitude for legal analysis.  But these are not the only groups we admit to law school, nor are they the only groups to whom we teach.  Rather, we are inviting students of diverse social and educational backgrounds to enter the profession—as we should.

And if we are going to extend this invitation, we need to teach like we mean it.

(NOTE: These are musings I have had based on my own experiences teaching, but I recognize that this is territory that has been covered by theorists of education—I hope to perform additional research in this area and post more about what I discover.)

***

Good luck! (Splash.)

It is apparent that there are many folks within the legal academy interested in departing from the traditional, “sink-or-swim” approach to legal education.  In fact, the call to extend, integrate and explicate skills education is one of the central concepts of the Carnegie Report, which currently serves as the guidebook for many institutions in their efforts to reform and improve legal education.

But my question is this: What exactly do we mean by “skills education”?  In other words, what skills should we be teaching . . . and when?

Specifically, as indicated by the title of this piece, I am interested in the relationship between what we refer to as “lawyering skills” and “academic skills.” Not only to the extent that these skill sets may be similar, different or complimentary, but also how they relate to one another in terms of the ideal sequencing of instruction.

In looking at the relationship between these skill sets, let’s start by looking at what we mean by “lawyering skills” and where these skills are taught in the curriculum.

Concrete, practical lawyering skills are primarily taught in first-year legal writing courses and in upper-level law school clinics.  In addition, law schools are increasingly offering upper-level writing and analysis courses that offer simulated practice experiences to a certain extent.

In terms of first-year legal writing courses, the first thing to note is the shift from focusing exclusively on legal writing to a much broader focus on a wide variety of skills that lawyers employ in practice.  Thus, programs that used to be called “Legal Writing” or even “Legal Research and Writing” are now called “Lawyering Process” (DU Law) and “Lawyering Skills” (UCI Law).

And the scope of skills taught in these typically year-long classes is quite vast.  A lawyering skills syllabus might cover the following topics in just the first semester:

-      structure of the legal system

-      reading and digesting various sources of law (constitutions, statutes, regulations and case law)

-      the role of precedent and the hierarchy of legal authority

-      drafting a variety of documents, including a client letter, an internal office memorandum, and more informal communications like e-mails

-      citation form

-      legal research (a vast topic in and of itself)

In the second semester, additional topics might include:

-      client interviews

-      fact investigation

-      the persuasive voice

-      arguments and counter-arguments

-      advanced legal research

-      motions practice (including summary judgment)

-      drafting an appellate or motions brief

-      oral argument

-      negotiation

Typically, these topics are covered in the context of one or more (but generally no more than three) simulated problems per semester.

Thus, this first-year course exposes students to an incredibly rich array of skills.  Indeed, as interest in skills education has escalated, there has been increasing pressure on lawyering skills faculty to address the wide variety of documents written and skills exercised by lawyers.  Further, there is pressure to not focus exclusively on litigation-related skills, but also skills in transactional practice and mediation/ADR.

Providing such broad exposure to a variety of aspects of legal practice is both admirable and desirable, but it is a great deal to accomplish in a single course and necessarily results in coverage that is, from one perspective, more broad than it is deep.  (A preference for breadth over depth is also a feature of many doctrinal courses, where faculty often feel compelled to address all topics presented in their chosen casebook rather than treating selected topics in depth.)

Compare this pedagogical context to that presented in the other major locale of skill instruction: law school clinics.  The most significant difference is that clinical skills education takes place in the context of live-client representation.  This means that the practical lawyering challenges students face are dictated by the client’s needs, not by the parameters of a simulated problem or set pedagogical goals.  Thus, there is no guarantee that certain substantive doctrines or lawyering skills will be addressed in a given semester.  And this is appropriate.  Clinical experiences, which are typically reserved for the second or even the third year of law school, provide an opportunity to exercise the skills and knowledge acquired up until that point in a flexible, real-time setting.  In other words, clinics assume a foundation of competence; clinics are neither obligated nor designed to provide comprehensive generalized doctrinal or skills instruction.

My personal view—and one shared by many others—is that first-year lawyering skills classes and law school clinics do an outstanding job of teaching lawyering skills, and these courses provide some of the most valuable experiences students can have in law school.

But a related contention is that these courses do not (and cannot and should not) teach the foundational academic skills that are a prerequisite for successfully acquiring lawyering skills, nor can they provide opportunities for repeated practice and review (analytical “drills,” if you will) sufficient to prepare novices to become masters.  This is where an academic skills program comes in.

***

Meditating in the deep end.

One way of thinking about an academic skills curriculum is that it teaches the same skills taught elsewhere in the law school curriculum (close reading; precise, organized writing; logical analysis) but through a different methodology.

What are the key features of this methodology?

(1) Narrower focus and slower pace.

Academic skills programming—whether delivered through workshops, individual counseling, or in a classroom setting—has the advantage of not being obligated to cover an entire body of law over the course of the semester (as doctrinal courses do) nor a broad array of practical lawyering skills (as lawyering skills/legal writing classes do).  In the absence of these mandates, academic skills instruction can focus on depth rather than breadth of coverage.

Thus, students can spend an entire session or more closely, carefully and slowly dissecting a single judicial opinion or statute.  This slower pace can, in turn, facilitate the acquisition of skills that students will be applying in other courses.

One of the complaints I hear most frequently from the 2L and 3L students I work with (and I work with them primarily on practicing syllogistic reasoning—that is, IRAC analysis—in a variety of factual and doctrinal contexts) is that they wished they had learned this earlier.  And of course they did learn core legal analysis skills in the first year, but I suspect that they did not retain or develop confidence in these skills because they did not have sufficient opportunities for repeated practice of those skills.

(2) Graduation from more simple to more complex challenges.

As a result of this slower pace of instruction, there is also time to gradually move students from more simple to more complex analytical challenges over time.

A shortcoming I see in legal education (and even in the calls to reform legal education) is the lack of attention paid to building students’ substantive knowledge and skills over time, from foundations to mastery.  Instead, we often focus on where we want students to be at the end of law school (“practice ready”) and throw them into the deep end at the beginning of their education, assuming they will figure it out as they go along.

In academic skills programming, we (ideally) have the time and opportunity to step back to more simple problems when necessary, or to break complex cases down into their constituent parts.  Once students have mastered the basics, we can move on to more complex challenges.

(3) Emphasis on practice, practice, practice . . . and more practice.

A belief in the efficacy of active learning techniques is key to the work of academic support.  This is based on the theory that active modes of learning support greater retention.  See earlier post at http://susannahpollvogt.wordpress.com/2011/01/.

(I should note that while the image for “Dale’s Cone of Learning” pops up frequently, there is some controversy over whether this can properly be attributed to Edgar Dale and whether the diagram’s claims are supportable.  On an anecdotal level, I have experienced great success with active learning techniques, but I certainly need to do further research into the question.)

While there are ways that doctrinal courses can make greater use of active learning techniques, and lawyering skills and clinics use active learning all the time, academic skills programs are again in a unique position to combine active learning with instruction in foundational skills, assuring that students achieve mastery in the basic skills required for them to acquire and apply higher-level skills.

(4) Copious formative assessment.

One of the primary critiques of the traditional model of legal education is the culmination of the semester in a single final exam that determines a student’s grade for the entire course.  While there is movement toward incorporating more formative assessments in doctrinal and lawyering skills classes, academic skills programming is again well-situated to provide copious formative assessment because of the amount of practice exercises students perform over the course of the semester.  This way, students have an idea early on whether they are “getting” what they are supposed to be learning in law school.  If they are not getting it, academic skills faculty can intervene prior to that student taking final exams.

(5) A focus on self-assessment.

The use of multiple exercises throughout the semester also provides fertile ground for self-assessment.  Self-assessment (where students evaluate their own work against a grading rubric) is useful for a number of reasons, including that it permits more frequent assessment because the professor is not required to review and comment on all exercises and, more importantly, it teaches students to critically review and evaluate their own work.  This, in turn, encourages students to internalize and take ownership over standards of performance.

***

My ultimate contentions are as follows:

● An academic skills curriculum is different than a lawyering skills, if not in content then in the mode of instruction.

● Foundational academic skills instruction is a necessary prerequisite for students to ultimately master advanced analytical and lawyering skills.

● Some students will have acquired these foundational skills prior to entering law school, but between the changes in undergraduate education and the diversity of undergraduate experiences, we cannot expect a uniform level of ability in any given student body.

● Academic skills instruction is key to the law school curriculum because it supports diversity and inclusiveness and, by closely monitoring acquisition of skills and intervening where required, academic skills faculty support the development of mastery that is required to graduate uniformly competent, “practice-ready” lawyers.

Two Great Tastes That Taste Great Together: Student Loan Debt and the Debate Over the Value of Scholarship

So many possible captions for this image. I will allow you to choose your own.

Everyone knows that the level of debt imposed on law school graduates is unconscionable.  (They might not use that exact term, but I will.)  Everyone also knows that there has been considerable, sustained debate over the value of the scholarship produced by law faculties.   (See related post at http://susannahpollvogt.wordpress.com/2010/09/08/law-schools-law-professors-scholarship-andversus-teaching/.)

Bring these two issues together, and you have what could politely be referred to as a firestorm.

Recently, Prof. Richard Neumann at Hofstra University did just this.  It’s not exactly what he intended to do—indeed, he was addressing a related but distinct topic at the time—but it was what many took away from his statements.  (See  http://www.law.com/jsp/nlj/PubArticleNLJ.jsp?id=1202490888822&src=EMC-Email&et=editorial&bu=National%20Law%20Journal&pt=NLJ.com-%20Daily%20Headlines&cn=20110421nlj&kw=Legal%20scholarship%20carries%20a%20high%20price%20tag&slreturn=1&hbxlogin=1.)

In short, what many people heard Prof. Neumann saying was this:  that law students, who incur crushing amounts of student loan debt in pursuit of their J.D., are not even putting this money directly toward their education, but are instead unwittingly subsidizing expensive frolics in faculty scholarship—scholarship that has little if any value to students themselves.

What Prof. Neumann was actually saying was much more complex and much less intentionally provocative (and the above summary is meant to be provocative).  What he was actually saying was this:

NOTE: The quotations in the following passages are taken from an e-mail that Prof. Neumann shared with the Legal Writing Institute Discussion List following the uproar over his comments.

(1)  All full-time teachers at law schools should have job security.  The point of tenure and other forms of job security is to protect and nurture innovation, which leads to better teaching.  Thus, according to Neumann, “[a] school is . . . better off it ALL full-time teachers have job security or are eligible for it.”

(Accordingly, Prof. Neumann was not part of the small chorus calling for the abolition of tenure at American law schools.  This has been a topic of much attention and debate recently, in particular in connection with a proposal to the ABA that the availability of tenure not be a consideration in law school accreditation.  See http://taxprof.typepad.com/taxprof_blog/2011/03/the-coming.html)

(2) “[T]he most important thing we do is teach.”  It is in connection with this contention that Prof. Neumann shared some statistics that got people talking.   He shared data indicating that (1) producing a law review article is very costly (largely in terms of the faculty member’s salary) and (2) in law school as opposed to medical schools, this cost is largely supported by student tuition.  (In the medical school model, research is funded by government and industry grants, for which faculty have to compete on a presumably meritocratic basis.)

J.D.

Prof. Neumann did not contest that legal scholarship has value, but rather questioned whether legal scholarship should be required to demonstrate its value to students since it was being written on their backs, so to speak.

And indeed, because we are a profession based on standards, it seems odd not to have a consensus standard for assessing the value of scholarship, thereby encouraging the production of better scholarship, and discouraging the production of poor scholarship.

(3) “[T]he culture of legal education makes it very difficult to change the way faculty resources are allocated.  Every school is chasing the same model, and students are being short-changed because of an oppressive conformism among faculties.”

***

This last point is very interesting to me, because one would think with the security of tenure, law professors would be innovative and challenging rather than subscribing to “oppressive conformism.”  In fact, this is one of the foundational assumptions of Prof. Neumann’s advocacy of extending security of employment to all full-time faculty members.

But there are other forces at work to shape and perhaps constrain the conversations among law faculty.  For one, law school faculties are extremely hierarchical, as any one of the many, many full-time law professors who do not enjoy security of employment can tell you.  Speech likely does not flow freely in a community where only some members enjoy protection in the expression of their ideas.

I will also venture that it has to do with the close relationship between the legal profession and social elitism.  Elitism functions by conserving of standards, not by challenging them.  Whether we admit it or not, many if not most of us attend law school to attain elite status, and are structurally bound by the mandate of self-preservation.

Finally, this essential social conservatism is paralleled in the intellectual structure of law, which begins and ends with reference to precedent.

And that really should be the rallying cry coming out of Prof. Neumann’s observations—that we should be more critical and questioning of the structure and incentives of legal education.  We should demonstrate how our scholarship adds value to the intellectual life of our institutions, not just claim it as an unassailable truth.  We should carefully consider exactly what we are providing students in a law school education. 

There is some movement afoot in each of these areas, but we must be careful to recognize the crushing momentum of conformity and tradition, and be certain to create an environment in which innovation can grab hold.

The Second-to-Last Day of Class: Witnessing Students Achieve Mastery

"The Student Has Become The Master." (Note: this is the second appearance of the awe-inspiring Bruce Lee on this blog.)

We met on Monday to “workshop” my students’ final papers prior to them submitting their papers the following day.  As usual, I had prepared a number of exercises for them to go through that would prompt a new perspective on their writing, and thus more effective self-critique and editing.

One of these exercises inspired wide eyes when I announced it.  My students had been struggling—in a winning battle—with the complexity of equal protection doctrine and, in particular, the concept of unconstitutional animus.  In this final paper, they were required to reduce multiple statements from several cases down to a single, workable rule for identifying animus as the motivation behind particular state action.

Nearly all of the students were still in the thick of trying to determine what principle to apply in reconciling the various notions of animus, and were overwhelmed with the complexity of this task.  Against this backdrop, I asked them to draft a single IRAC syllogism that reflected the thesis of their paper.  (They rightly recognized that any such summary would omit detail necessary to the complete analysis, but that it was nonetheless possible to articulate a statement that encompassed and ultimately lead to an exploration of that detail.)

I gave them a few minutes to jot down their ideas, and then I went around the room and had them present their statement out loud.  And to a student, they had formulated a viable, nuanced rule statement for identifying animus and applied that rule to the specific facts of our case, focusing on the facts that were most relevant in light of their rule formulation.

And best of all, they did so with confidence.

This represented so much progress from the beginning of the year, when their contributions in class were more tentative, and their relationship to legal analysis was fraught with uncertainty.  In short, they demonstrated mastery, and it was an amazing thing to see.

Every semester I learn so much from my students, and it all goes towards making me a better teacher.  Thank you all.

Professor Michelle Alexander, a Critique of Mass Incarceration, and the Challenges of Teaching Social Context in Law School

Yesterday we had the pleasure of having Professor Michelle Alexander present to us at the Sturm College of Law.  (Her bio can be found here: http://moritzlaw.osu.edu/faculty/bios.php?ID=2.)

Prof. Alexander

She spoke to us about her book, “The New Jim Crow: Mass Incarceration in the Era of Colorblindness.”

(Available on Amazon.com at: http://www.amazon.com/New-Jim-Crow-Incarceration-Colorblindness/dp/1595581030/ref=sr_1_1?s=books&ie=UTF8&qid=1298476590&sr=1-1.)

As I understand from her presentation, the book describes the historical and current state of mass incarceration of Black men in the United States, and describes it as a persistent racial caste system that can only be overcome by a concerted social movement (as opposed to discrete policy reform).

The topic itself is self-evidently interesting and important, but in her lunchtime presentation Prof. Alexander added a layer of significance by linking her work to the way we teach (or fail to teach) social and, in particular, race awareness in law school.  She described how when she studied Criminal Law as a student, the focus was narrowly and exclusively on the facts of individual cases and an individual defendant’s guilt or innocence.  What was left outside the classroom was the context of the mass incarceration of Black men, the evolution of the phenomenon, possible reasons for the phenomenon’s existence, and its implications for the study of criminal law.  But as a practitioner and scholar, Prof. Alexander observed how mass incarceration, and the legal discrimination imposed on those in prison or with criminal records, worked to create a caste system based on race.

At this point it might be helpful to identify the distinction between “caste” and “class.” According to Merriam-Webster:

Definition of “caste”

1: one of the hereditary social classes in Hinduism that restrict the occupation of their members and their association with the members of other castes

2: a: division of society based on differences of wealth, inherited rank or privilege, profession, occupation, or race

b: the position conferred by caste standing

3: a system of rigid social stratification characterized by hereditary status, endogamy, and social barriers sanctioned by custom, law, or religion

(See http://www.merriam-webster.com/dictionary/caste.)

So the essential distinction, as I see it, is that “class” still implies a certain degree of mobility, whereas “caste” is inherited, and thus harder to shake.  Thus, the notion of a permanent “caste” status is even more fundamentally at odds with our core democratic commitments to social and economic mobility, personal freedom, and self-determination.

***

There is an abundance of important information and ideas in Prof. Alexander’s book and in her work.  But following up on the frame of her lunchtime talk, I want to ask:

What does all of this have to say about how we teach in law schools?

Prof. Alexander emphasized that the social and historical context of mass incarceration was not part of the curriculum when she was a student, and suggested that this was a serious shortcoming that should be remedied.  So what is the best—the most effective and the most fair—way to incorporate social context, and in articular race-awareness, into legal education?  (And at this point I will note how beautifully Prof. Alexander’s observations dovetail with Elizabeth Mertz’s systematic study of legal education and the purposeful exclusion of social context from the study of law.)

This question caused me to reflect on a seminar I taught last year involving a Fourth Amendment problem.  For me, likely due to my undergraduate background in critical studies, my reading of the case law interpreting and applying the Fourth Amendment is always informed by my assumption that class and racial profiling play a role in police decisions on whom to subject to searches and seizures.  But it became apparent that some students in the seminar did not share this assumption and did not see certain types of police discretion as problematic as a result.

I did not need for all of the students to share my assumption, but I wanted to make them aware of the concerns about racial disparities in police contact and how this might change our view about what rules are necessary to enforce fair treatment.  In an unusual turn of events, I was at a loss for words to convey what was to me a foundational social understanding.

One of my Latina students piped up, and talked about differential treatment and related concerns in her Denver community.  She was smart, clear and funny in her description and it was a great example of a student teaching another student and teaching me, as well.

I raised this episode to Prof. Alexander as an example of how nurturing a diverse student body was essential to bringing social context into the law school classroom.  She agreed, but also wisely (and gently) pointed out the dangers of leaving it to diverse students to educate the rest of us about diversity.

And of course this is a critical point.  We have heard (and continue to hear) law students tell of being the focus on uncomfortable and inappropriate questioning.  ”How do women feel about this issue?”  ”What’s the Black perspective on this?”  ”Where does the Islamic community come out on this question?”  Beyond being socially awkward, these types of directed questions make a number of unfounded assumptions about the ability of any one individual to speak for their gender, race or religion.  They also imply that the individual cannot speak from the privileged, “neutral” or “invisible” position of the objective, “reasonable man.”

I think it is fantastic when diverse students voluntarily offer a perspective that is different, and we should all strive to create an atmosphere in class where students feel that they have the voice to make such contributions.

But as educators we need to look to other sources for diversity in perspectives and proactively include these sources in our syllabi.  And what we are really talking about, to again allude to some of the wisdom of Critical Race Theory, is bringing in stories from those who might not otherwise have a voice in the hallowed institutions of legal education, to cultivate awareness and empathy.  To make us better lawyers.

Serendipitously, my colleague Tom Romero dropped by my office yesterday and told me about just such an approach he was using in his first-year property class.  In addition to the traditional sources for studying the law of property, he requires students to read Robert Neuwirth’s “Shadow Cities” (http://www.amazon.com/Shadow-Cities-Billion-Squatters-Urban/dp/0415933196), which details the experience of squatters in different parts of the world.  A perspective that is outside the assumptions of traditional property law and outside the experience of—I would venture to guess—most if not all of us who end up as students of the law.

This is a wonderful example of a discrete yet effective way to bring outsider stories into the mainstream law school curriculum to enrich and broaden our understanding of what exactly it means to operate within the law.