Sonsteng, J O et al. --- "A legal education renaissance" [2009] LegEdDig 2; (2009) 17(1) Legal Education Digest 5

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A legal education renaissance

J O Sonsteng, D Ward, C Bruce & M Petersen

Legal Stud Research P Series, William College of Law, Paper No. 89, 2008, pp 94–118

It is time for a legal education renaissance. This proposed model provides a plan, goals, and a process to get legal education from its present state to where it should be. The model addresses the criticisms of the current system, uses available tools, keeps what works well while discarding what does not, is flexible enough to incorporate new and creative ideas, recognises the needs of a diverse adult learning population, is cost effective, and lives up to its promise to train lawyers for the practice of law.

The ability and enthusiasm of law school faculty to initiate and implement significant change is limited by many factors, including tenure, a desire for individual autonomy, academic freedom, the inevitable variety of opinions and interests concerning the school’s mission and use of resources, and the complex relationship among faculty, deans, and the governing board.

The primary responsibility for leadership lies with the deans, just as it did in Langdell’s time. The role of the law school dean has become more complex, but it is through the dean’s strong leadership and the collaborative support of other actors within the system that change can occur.

If law schools do not take a proactive position on legal education reform, then outside forces and the needs of the profession will eventually cause the system to change. While it is interesting to consider making systemic change in one bold move, it is not a realistic approach. Even in earlier times, change occurred slowly.

The 17 year plan provides an illustrative timeline for achieving a legal education renaissance. It anticipates considerable discussion and debate and involves all the legal education constituents.

Year One — Informal Discussion. In the first year, the leaders initiate a series of discussions to respond to the ‘buzz’ concerning reform and innovation and covering the following areas: curriculum, student life, teaching, faculty, management, staff, facility, and financial considerations. This is a year of informal discussion among the constituents of a law school: faculty, staff, alumni, students, administration, the board of directors, the ABA, AALS, educators, business leaders, education reformers, and the bench and bar.

Year Two — Formal Meetings. In the second year, leaders organise groups of constituents to begin formal discussions. The meetings focus on developing a consensus. At the end of this process, if the constituents decide that the institution should not initiate change, the process ends. If a consensus is reached that the school should move forward with reform, the leaders can appoint a design team with members from each constituency to develop a detailed educational model.

Years Three and Four — The Design Phase. In years three and four, the team considers what courses should be taught, how students should be taught, what practice experience opportunities should be provided, how educational experiences should be organised, how teaching and learning objectives should be defined and evaluated, how the reforms will be initiated, and the most effective use of resources.

The design team starts with no preconceptions so that it may develop an ideal plan without hindrance from existing practices, financial restraints, faculty resources, and other limitations. The plan includes curriculum, students, teaching, faculty, management, staff, the facility, and financial considerations. The plan serves as the basis for discussion and debate among the constituents during year five.

Year Five — The Debate. For the second time, leaders organise formal groups of constituents to discuss the model plan. At the end of year five, these groups prepare written reports to the design team critiquing the design team’s model and providing suggestions.

Year Six — Revisions and Adoption of Plan. In year six, the design team, in consultation with the administration, the board of directors and the constituents, prepares the final plan for the institution’s adoption at the end of year six.

Years Seven through 17 — Implementation and Revisions. The curriculum and new faculty structure are phased in over 10 years so that first-year classes begin in year seven under the new plan, and by year 17 the entire educational plan is fully operational. The plan will be continually revised, evaluated, and improved.

A new legal education model may be divided into three modules, assuming students will have the necessary pre-law school training: Module I: The Fundamentals, Module II: Substance and Fundamental Legal Practice Skills, and Module III: Transition from Student to Lawyer.

Each module builds on the skills learned in the previous module. Students must reach an established level of competency in each module before being permitted to advance.

Each of the three modules and all of the courses within a particular module have clearly-stated objectives; provide assessment, feedback, and reinforcement; provide a positive learning environment; incorporate active classrooms; address multiple learning styles; and include lesson cycles. The overreaching goal is that all graduates attain an established level of competency before being admitted to the practice of law.

Module I consists of one semester covering 14 weeks, with students taking 14 credits of Basic Concepts, Legal Research, and Writing. By the end of this basic training period the student should understand basic concepts and terminology; understand the legal system; learn to write clearly and succinctly; learn to read, understand, and apply judicial opinions, statutes, and regulations; master effective note taking in class; develop effective study techniques; learn how to understand and brief a case; understand legal research and the sources of law; know how to navigate and use a law library and technology in legal research; understand the demands of the legal profession; acquire basic legal reasoning skills; understand basic problem solving methods; understand basic ethical theory and theories of justice; understand basic problem solving methods; understand basic ethical theory and theories of justice; know how to solve legal problems and analyse client-based issues; comprehend the legislative process; know how to balance work and study with a healthy lifestyle; be motivated and energised to study law; have the opportunity to explore an area of interest in depth.

The focus of Module I is fundamental knowledge and skill building rather than in-depth study of substantive materials.

Module II consists of three semesters covering forty-two weeks, with students taking 42 credits of Substantive Courses and Fundamental Legal Practice Skills. It focuses on required substantive courses and fundamental legal practice skills. It also provides an opportunity for in-depth exploration of complex legal areas along with ethical, social, and political issues. Students build on their understanding of the fundamentals from Module I and learn to problem solve by applying theory to real and simulated legal problems. Substantive courses include, but are not limited to Contacts, Civil Procedure, Torts, Property, Constitutional Law, and Criminal Law.

Fundamental legal practice skills include, but are not limited to: the ability to diagnose and plan for legal problems; the ability in legal analysis and legal reasoning; drafting legal documents; knowledge of substantive law; library legal research; computer legal research; fact gathering; oral communication; written communication; counselling; instilling others’ confidence in the attorney; negotiation; knowledge of procedural law; understanding and conducting litigation; organisation and management of legal work; the ability to obtain and keep clients; and sensitivity to professional and ethical concerns.

Module III consists of two semesters covering 28 weeks, with students taking 28 credits of Transition Courses. It continues the learning cycle process of reinforcement, feedback, analysis, and self-evaluation that students have mastered through Modules I and II.

Transition courses build on previous learning, require students to be responsible for their learning, and encourage reflection on legal ethics, professionalism, and what they learned. The subject matter, organisation, content and, methods of transition courses reflect real-world framing, and integration of doctrine, skills, theory and different areas of law. They can cover legal and related non-legal disciplines (eg. medicine, psychology, engineering, etc), domestic and international law, advanced legal research, law practice management skills, advanced writing, teamwork, leadership, and discovery. Transition courses are rigorous and require students to produce manifestations of their learning, including written briefs, contracts, papers, or a videotaped trial or negotiation.

Unlike less advanced courses of study, transition courses require a student to commit substantial time to a course and may be offered for a greater number of credits. Students learn to handle complex matters that are crucial for the transition to practice. Students learn to synthesise the fundamental knowledge gained in Module I with the substantive law mastered in Module II.

Legal education renaissance requires a new education protocol including various teaching methods, education tools, and resources directed toward student success and development. Every aspect of the curriculum clearly articulates learning objectives with activities designed to measure success of instruction and student learning. Learning objectives, measurable activities, and frequent assessment and feedback provide opportunities to practice, identify areas for improvement, and reinforce learning.

Most students are not able to learn in a large-group format, but until recently, that format was the best method to provide uniform coverage. However, modified lecture formats can inspire and assist in developing a sense of community. Discussions and Socratic dialogue can be used in small group settings with experienced teachers.

The new learning and teaching protocol recognises that well designed and implemented distance learning experiences are effective for most students. New distance learning tools create valuable learning opportunities outside face-to-face classroom sessions.

Course designers, as members of the law school’s design team, must determine learning objectives and the manner in which the school will evaluate academic competence. If the institution’s mission is to train students to be able to practice law competently upon leaving law school, the learning objectives will be different than if the mission is to train students to think like law professors or take bluebook exams.

Learning objectives may be achieved in a variety of ways. For example, students may be required to do the following: (1) Write a memorandum that provides an analysis based on the facts and legal research. The memorandum demonstrates the student’s level of understanding of the theory of a case, the elements necessary for a party to prevail, an understanding of the weaknesses and strengths of the party’s case, and an understanding of appropriate remedies; (2) Provide short answers to a series of questions or complete a multiple choice assessment; (3) Meet individually with a faculty member or field questions through an individual Socratic dialogue in a defense of a thesis or paper; (4) Demonstrate ability to spot issues in a case, communicate basic legal principles and theories, or articulate the legal framework of a case; (5) Write sophisticated answers in a time-based examination, or answer complex multiple choice or short answer questions.

Multiple assessment formats allow students to develop and understand where they need to improve. More frequent assessment provides professors an opportunity to adjust their curriculum and teaching techniques according to particular student needs.

Reflective learning is an essential component of any successful teaching protocol. Writing reflections will help bring clarity to this process. The reflective evaluations give students a platform for communicating what they learned and how it might be applied to their careers. Students use different formats and styles which best represent their thoughts about the course and their experience.

In the new teaching and learning system every course incorporates three-step cycles of learning that include: an initial learning step that takes place before the in-class experience; a face-to-face session with faculty and other students; and learning that continues beyond the face-to-face sessions.

The cycle occurs each time a new lesson or skill is introduced. Step one, Faculty Supervised Study (FSS-I), is pre-classroom work. The Intensive Residential Practicum (IRP) is the second step and involves face-to-face classroom interaction. The third step is the post-classroom work, Faculty Supervised Study II (FSS-II).

When designing FSS-I for a course, the education design team must ask the following questions: What are the learning objectives? What information will the students have coming into the course? What preparations are required? What are the sources of the information to be taught? What type of interaction will occur between the faculty and the student during this training block? What is the length of each Faculty Supervised Study?

Students obtain their information from a variety of sources including books, casebooks, hornbooks, black letter law training materials, webcasts, and prepared teaching materials delivered on-line or by CDs and DVDs. Students can receive the same information in FSS-I that was previously provided through class lectures in the traditional law school format.

In each course, FSS-I will occur as many times as necessary to cover the substantive knowledge and skill sets. Because in-class lectures are no longer the only teaching and learning option, the face-to-face or IRP can be used to serve a higher purpose and enhance learning. Students can be expected to come to the IRP with an understanding of the necessary knowledge and skills.

Before moving on to an IRP, students must demonstrate a minimum standard of learning. Students may demonstrate the basic competencies and meet the minimum standards of learning through a variety of assessment and feedback formats including short papers, essays, multiple choice questions, and oral examinations. The system recognises the success of early achievers by allowing only a ‘pass’ result for repeat testers. This system maintains a degree of fairness for students by rewarding and encouraging those who demonstrate competence during the first assessment opportunity.

The IRP is the core component of the new teaching system. Because the students have demonstrated a required level of competence, the face-to-face sessions operate on a high level. The IRP addresses skill sets and learning objectives in an intense, immersion-style format. Students are challenged to analyse a hypothetical legal problem entitled ‘Practicum Exercise’ and use legal doctrine and legal theory to resolve it.

Ideally, the IRP should meet for at least three hours to provide sufficient time for intensive and thorough discussion and debate, and to eliminate wasted time currently experienced during the beginning and end of shorter class periods. The professor may give short lectures on certain aspects of the material to add sophisticated insight and help focus student learning. Students break into small groups for collaborative learning and work through hypothetical Practicum Exercises. Within each group there is a student leader who leads the group through the problems, a recorder who takes notes of group answers, and a reporter who reports the answers to the larger class on behalf of the small group. Students rotate among the positions so that all students have an opportunity to develop a variety of leadership and communication skills.

The tutorials may be presented live, by streaming video over the Internet, and through other technology. Expert tutorials are interactive, allowing students to submit questions using available technology.

IRPs can be used in any substantive area such as torts, contracts, and civil procedure, as well as for skills training in areas such as trials, depositions, arbitrations, negotiations, mediations, and oral arguments. IRPs may be of any length, depending on the learning objectives determined by the teacher.

The FSS-II is the study and assessment phase to which students move after completing the IRP. The students must combine the knowledge and skills they learned in the IRP, with the theory they learned in the FSS-I.

In advance of the FSS-II, at the end of an IRP session, students may be assigned a practicum-style problem on which they must write a memo, prepare answers to questions, or discuss solutions with a teacher.

A teaching and learning system that delivers an education that enables students to competently practice law requires a substantial increase in the time currently devoted to teaching.

Instead of changing the rules, at least three ways exist to provide additional faculty resources within the rules: for 1000 students with forty tenure-track faculty, hire approximately one hundred additional adjunct faculty, each teaching about ten hours a week. This supervised adjunct teaching faculty conduct all FSS sessions and IRPs, and advise students. Phase out half of the tenure-track faculty over time, replacing them with a long-term contract teaching faculty. The amount of time dedicated to teaching is tripled. Although the number of people writing and conducting scholarly research may be fewer and the number of publications reduced, the significant benefit to student learning outweighs the reduction in academic scholarship.

In a combined teaching system, the tenure-track faculty are divided into two departments, Research and Writing and Education and Teaching. The Research and Writing Department consists of traditional tenure-track faculty who engage in scholarly research publication, conduct advanced seminars, lecture as needed, and participate in the preparation of advanced teaching materials. The Education and Teaching Department consists of a small group of tenure-track faculty who are responsible for oversight and quality control, and serve as directors of the education modules. They also act as a design team developing curriculum, courses, and assessment and feedback systems. The contract teachers focus on teaching, Faculty Supervised Study, the IRPs, student contact, research and writing related to teaching, and on assisting the design team.

This proposal for a legal education renaissance is not a panacea. It is a plan designed to stimulate discussion. A new model can fit within existing rules and institutional frameworks. Use the best of the traditional, borrow from others, combine methods, innovate, experiment, and create a flexible responsive system that meets the needs of students, the profession, and clients. Make nothing so permanent as to smother creativity and innovation.