What is the optimum mix (if there is to be a mix at all) in legal education as among theory, doctrine, and "skills"? And as to the "skills," who is going to teach them? And as to transactional skills, historically the least amenable to either simulation or clinic pedagogy, add "how" to the question of "who." Oh, and by the way, what do law professors have against getting practitioners actively involved in both the "who" and the "how"?
Those are the subjects of a provocative article, Barriers to Entry: Putting it Together School by School (to be published in the Journal of Experiential Education) by Jay Finkelstein, a corporate and securities partner at DLA Piper in the D.C. area.
Implementing experiential learning options, especially through simulation courses, is a major current topic in legal education as law schools address the new mandates of ABA Standard 303. Efforts to expand transactional law classes are also continuing to provide more practical skills training to law students.
This article reflects upon the effort, and the journey, that has resulted in this successful quest to have an experiential, extended simulation, transactional law class incorporated into the curriculum at multiple law schools and to have a positive impact on legal education. It also reflects upon the challenges and obstacles, as well as the advantages, faced by those outside the academy who are willing and able to participate in the efforts to make a legal education more relevant to the current practice of law.
The class, International Business Negotiations, following multiple years of being offered at American University, Washington College of Law, has been added to the curriculum at seven of the top 14 US law schools as well as 10 additional US law schools and 11 international law schools (data as of May 2017). In most cases, the class is taught collaboratively between two law schools with each law school class representing one side to the transaction and being brought together for live negotiations throughout the semester or quarter using either face to face meetings or video conferencing.
As we strive to improve legal education and particularly to focus on “practice oriented” law classes, we need more involvement by those who are most conversant with the skills of practice – the practitioners. To do so, we need the doors to the academy to be open to communication and receptive to innovative concepts. We need to suppress protectionist systems that have distanced the academy and practitioner. The journey described herein has been unique and deliberate, and it is not one that many other practitioners would follow. For legal education to evolve, however, it will be necessary to build further collaboration and to dismantle the barriers between legal education and law practice. There needs to be more dialogue and fewer barriers to entry.
Law schools need to demystify the process of access to the academy and work to develop practitioner collaboration that can support efforts to expand practical skills legal education. Academic deans can begin the dialogue by reaching out to local bar associations to let it be known that experienced practitioners who have proposals for innovative classes or who are willing to work with faculty to develop innovative methods for teaching practical skills will be welcomed. Classes that showcase effective teaching of doctrine and practice skills should be encouraged, and faculty should be incentivized to work with practitioners to test new models of instruction. Successful efforts should be acknowledged, publicized, and replicated, even between law schools. Faculty will certainly need to make changes and become comfortable with new means to integrate doctrinal instruction and practical skills, but the result will be worth the investment: law school graduates will be better prepared to begin their legal careers; they will not be experienced practitioners, but they will be “practice aware.” Working together, the academy and practitioners can begin to break down the barriers in order to construct a new collaborative foundation to improve the academic preparation for the profession.
I dropped Jay a note back in May when his piece popped up on my Google Scholar ego alert. As I teach a small transactional simulation class, I was intrigued by his very successful concept of having teams from different law school negotiate with other. Having judged/watched a number of “deal” or “negotiation” “competitions," it always seemed to me the biggest challenge is to create (a) skin in the game, and (b) the impetus to make a deal rather than swap extreme positions back and forth. Simulated litigation (trial or appellate) works because the incentive to win is there, and the students as in real life are talking to a third party. Transactional simulations have the problem of playing poker with no money.
My simulation tries to address both concerns. As to skin in the game, the winning team gets a somewhat more than symbolic prize (gift certificates to a local bar/restaurant). As to the impetus to make a deal, I set up a scoring system inspired by the prisoners’ dilemma. As to each item in the term sheet, the negotiating teams get a reasonable number of points for splitting the baby, many points for “vanquishing” (i.e. getting a great deal), but a significant multiple of negative points for failing to make a deal on that term. In post mortems over the years, we’ve talked about how the game might create incentives to walk away (as in real life). That is to say, if Team A is so trenchant as not to be willing to give on anything, Team B in that pairing knows it can’t win the game. So Team B needs to say to Team A, “if we go down, you are going down with us.”
But simulation isn't not really the thrust of the paper, and perhaps law professors ought to read it as a constructive plea. My visceral reaction was that the article was saying: you law profs don’t know anything about practicing, and you’ve created a guild to keep us practitioners out. Honestly, that’s too simple. The problem is complex and systemic for all sorts of reasons. As to practice, the usual problem with law professors is not that they haven’t practiced, but that their practice was two or three years at a big firm where they got the worm’s eye view of what a litigator or a deal lawyer does. As to academia, the solutions to what Jay perceives as the problem have to deal with the fact that law schools have evolved into segments of the larger university, where ideally there is a element of contemplative, not necessarily instrumental or practical, life of the mind. Most people who choose to become tenure track professors (in law) have this end as a significant, if not predominant, motivation. The best critiques of legal education address this. I’m not sure this does. But it is the contribution of a thoughtful and committed practitioner-teacher.