A View from the Third Tier: One Professor’s Preliminary Thoughts about Teaching Law Students

By Theresa M. Beiner

 

I am in my eighteenth year [1] of teaching at a law school that currently sits in the third tier of the U.S. News and World Report law school rankings.[2]  Over the years, I have been amazed by the amount of focus in legal academia placed on the needs and experiences of law schools in the top tier and law students who graduate from these schools.  According to my calculations, the top twenty-five law schools in the United States educate 23,705—or roughly 16%— of the 145,239 law students attending American Bar Association-accredited law schools.[3]  Yet, so much discussion seems to be directed at what is going on at these schools.[4]  While that might be understandable given that many of these school’s graduates become influential lawyers and politicians,[5] the majority of the legal work completed in this country is performed by lawyers who graduated from law schools that are not among the top twenty-five.  Schools such as mine, a third-tier school, train lawyers who will have the opportunity to provide legal services to members underserved populations and at some of the highest levels of practice.[6]  Yet, there does not appear to be much discussion about what is happening at schools in the third tier.  If people did take a moment to focus on what we are doing, I think they would be very surprised to find out how innovative and thoughtful institutions like mine are.  I can only speak directly from my experience at the University of Arkansas at Little Rock William H. Bowen School of Law, but my colleagues at schools like the Bowen tell me similar stories.[7]  Let me begin what I intend to be a series of short articles regarding life in the third tier with a look at something that should be the focus of law students’ interest—teaching.

Critics have long complained about law school education and legal academia.  Members of the bench and bar have criticized legal education, in particular, for being both out of touch with practice[8] and neglectful in how it trains future practitioners.[9]  The popular media has taken up these criticisms in recent years in response to the high costs of legal education and dimming job prospects resulting from the current recession.[10]  I always find these criticisms interesting, while at the same time thinking, “These folks obviously haven’t visited my school.”

The idea that we were doing something different here—or at least different than top tier schools—occurred to me many years ago at the annual meeting of the Association of American Law Schools (“AALS”) shortly after the Fifth Circuit decision in Hopwood v. State of Texas.[11]  For those of who do not remember that case,[12] it was, for a brief time, the leading case striking down a law school affirmative action admission program.  It sent shockwaves through legal academia, and left law schools—at least schools who receive thousands of applications—scrambling to find a way to continue to admit a diverse student body.  Following the decision, AALS took up the topic at its annual meeting.  A series of speakers spoke about ways to achieve diversity in admissions while not running afoul of Hopwood.  One speaker explained that schools would have to begin to look at the “whole person,” meaning that they would have to look at the applicant’s file and actually read and review it.

I found myself chuckling.  What do schools in the top tier think those of us who do not get thousands of applications do?  Members of my school’s admissions committee had long been reading entire applications not only to diversify our classes, but also to try to find those few students who might not have the highest LSAT scores, but had the potential to excel in law school and become competent lawyers.  That was the beginning of what became frequent experiences at the national level: law school-related conferences that purported to be about legal academia throughout the United States, but instead seemed only to be aimed at schools in the top tier and their close relatives in the second.

Two additional occurrences pushed me to write this article about life at a law school like Bowen.  One involved a comment from an inspector from the ABA during our most recent reaccreditation review.  During a one-on-one discussion, he asked me how our school had managed to keep our bar passage rate up when a good chunk of our student body was pretty “middle-of-the-road” in terms of entering statistics.  I’m sure I looked at him quizzically.  It never occurred to me that the students I taught would not have a high bar passage rate.   Most years, with the occasional exception, my students have strong bar passage rates.  That some law schools like Bowen have difficulty with this was not something of which I was particularly aware.  As a general matter, my students, even those that did not come with the greatest credentials in terms of LSAT scores and undergraduate grade point averages, have worked hard and passed the bar.

The second incident occurred at a conference on the Carnegie Report.  For those not familiar with the study, the Carnegie Foundation prepared a report about the state of legal education in the United States.[13]   There have been other reports about legal education,[14] but this study highlighted the legal education system’s failure to provide practice-related experience and its failure to inculcate professional identity in law students.[15]

The conference included a panel of legal academics that discussed how their law schools were incorporating some of these values into their courses.  One of the panelist—the Dean of a top tier law school—provided as an example that Civil Procedure professors at his school were beginning to have students draft a complaint in their Civil Procedure courses.  I once again chuckled.  My Civil Procedure students have been drafting complaints in my class for approximately fifteen years.  It’s a capstone exercise that allows them to pull together a variety of different legal concepts that they have learned in class up to that point: personal jurisdiction, subject matter jurisdiction, venue, and pleading requirements.

I’m not alone among my colleagues at Bowen in incorporating practice and value-related concepts into my courses.  Indeed, our curriculum itself emphasizes the two competencies that the Carnegie Report criticized law schools for neglecting.  For example, in addition to the first-year legal writing and research program, Bowen students are required to take a two-semester Lawyering Skills course during their second year.[16]  Every Bowen student progresses through a simulation that begins with client interviewing and counseling and eventually ends in a bench trial.  We also have clinics and a vibrant externship program, in which students are placed in public interest organizations or government offices under the supervision of a practicing attorney and a full-time faculty member.  Among the components of the externship program is student journaling, whereby students are encouraged to reflect about what they are experiencing in practice.  Indeed, my colleague who teaches the externship class wrote an article describing how the course is consistent with Carnegie values.[17]  Bowen also offers a variety of upper-level writing courses, including a course on drafting contracts.   Finally, for students who are inclined to hang their own shingle, the School offers a law practice management course.

It’s not only in the skills-related courses that students have opportunities to see what practice is like.  We have many faculty members who incorporate additional activities into doctrinal classes to help students understand the real world applications of their studies.  For example, along with drafting complaints in my Civil Procedure course, students develop what I call “approaches” to the various subjects I teach them.  These approaches require them to synthesize a variety of cases in one area—for example, personal jurisdiction—and develop a framework by which to analyze a problem in that topic.  These approaches must be completed in writing, and I critique them.  Another example is our Poverty Law class, in which my colleagues require students to draft a complaint, a motion and supporting brief, and a client advice letter related to the subjects covered in class.  Family Law is taught in a similar manner.  Many of my colleagues use problems and hypotheticals in class so that students can apply what they have learned to new situations.

That’s not to say that Bowen does everything right, but we are thoughtful about our teaching approaches and take our jobs as teachers seriously.  Currently, the school is in the process of mapping its curriculum to core competencies developed by the faculty last year.  We want to make sure we are teaching students what we want them to learn.  While our bar results suggest that we have done a good job in past,[18] there is always room to improve.  We continue to carefully consider the manner in which we approach teaching certain subjects.

I hope to produce law students who can pass the bar and conclude their educations with a real sense of what practice is about as a result of gaining practical skills along the way.  Another distinct advantage of Bowen is the price: $11,456/year in tuition for in-state students.[19]  Our students do not graduate from law school mired in debt.  Because of this, many are able to follow their interests, whether it’s becoming a public defender or prosecutor or working for a public interest law firm.  Perhaps this is why no one is talking about what goes on at third-tier state law schools like Bowen: a great legal education at a great price may prove pretty tough competition for the top twenty-five.


[1] Nadine Baum Distinguished Professor of Law, Associate Dean for Faculty Development, University of Arkansas at Little Rock, William H. Bowen School of Law.  Thanks go to Dean John DiPippa and Professor George Mader for their comments on earlier drafts of this essay.

[2] Our ranking in 2012 was 119. Best Grad Schools, Schools of Law:  The Top Law Schools, U.S. News & World Rep., 70, 73 (2012).

[3] See American Bar Association, First Year and Total J. D. Enrollment by Gender 1947 – 2008, available at http://www.americanbar.org/content/dam/aba/migrated/legaled/statistics/charts/stats_6.authcheckdam.pdf; Education: Best Law Schools (2011), U.S. News and World Rep., available at http://grad-schools.usnews.rankingsandreviews.com/best-graduate-schools/top-law-schools/law-rankings/page+2.

[4] See, e.g., Luke Charles Harris, Beyond the Best Black:  The Making of A Critical Race Theorist at Yale Law School, 43 Conn. L. Rev. 1379 (2011); Philip Lee, The Griswold 9 and Student Activism for Faculty Diversity at Harvard law School in the Early 1990s, 27 Harv. J. Racial & Ethnic Just. 49 (2011); Kevin K. Washburn, Elena Kagan and the Miracle at Harvard, 61 J. Legal Educ. 67 (2011).  These law schools and their faculties tend to dominate at many national conferences.  For example, at the most recent annual meeting of the Association of American Law Schools, all of the faculty members speaking during the first day’s plenary sessions were from the top twenty-five law schools, with the exception of one faculty member from Boston College, which is only ranked twenty-seventh due to a tie.  See AALS, Final Program, Academic Freedom and Academic Duty XIX (2012), available at http://www.aals.org/am2012/2012program.pdf. It should be noted, however, that this conference included many sessions focused on teaching.  Panels on teaching had a mix of faculty from variously tiered schools.  See id. at 8-12.

[5] One does not have to look farther than the White House and the Supreme Court of the United States.  See Barack Obama Quick Profile, Election TV, http://www.election.tv/Barrack_Obama (noting that President Obama studied at Harvard Law School); Biographies of Current Justices of the Supreme Court, Supreme Court of the United States, http://www.supremecourt.gov/about/biographies.aspx (Justices Roberts, Scalia, Kennedy, Breyer, and Kagan all attended Harvard Law School; Justices Thomas and Sotomayor attended Yale Law School; and Justice Ginsburg attended Columbia Law School).   Justice Alito also attended Yale Law School, but does not include it in his official biography on the Supreme Court’s website.  See Christian Burset, Alito ’72 Nominated for Supreme Court Seat, The Daily Princetonian, Oct. 31, 2005, http://www.dailyprincetonian.com/2005/10/28/13656/.

[6] For example, Arkansas’ Attorney General, Dustin McDaniel, recently argued before the  Supreme Court of the United States.  Max Seigle, 2007 Little Rock Murder Case Going Before U.S. Supreme Court, Today’s THV (Feb. 22, 2012), http://www.todaysthv.com/news/article/196497/2/Attorney-General-Dustin-McDaniel-to-argue-case-before-US-Supreme-Court.  Attorney General McDaniel is a graduate of the UALR William H. Bowen School of Law.  See Arkansas Attorney General McDaniel Testifies at Judge Sotomayor’s Confirmation Hearings, Postpolitics (July 6, 2009), http://www.washingtonpost.com/wp-dyn/content/article/2009/07/16/AR2009071602601.html.

[7] See, e.g., Steve Easton, Law School News, 34 JUN Wyo. Law. 58 (June 2011) (discussing many things the University of Wyoming Law School does to bring realistic aspects of practice into the classroom). The University of Wyoming was ranked 127 in the U.S. News rankings.  See U.S. News and World Rep., supra note 2.  It is also noteworthy that all the law school centers that focus on legal teaching are at lower-tiered schools.  The Institute for Law Teaching and Learning is jointly run by Gonzaga University School of Law and Washburn University School of Law.  See The Institute for Law Teaching and Learning, http://lawteaching.org/.  Washburn and Gonzaga are ranked at 129 and 113, respectively. U.S. News and World Rep., supra note 2. Albany Law School runs the Center for Excellence in Law Teaching. Albany Law School, Center for Excellence in Law Teaching, http://www.albanylaw.edu/sub.php?navigation_id=1709.  Albany is ranked 113.  U.S. News & World Rep., supra note 2.  Finally, Elon Law School hosts the Center for Engaged Learning in the Law, Elon University School of Law, Center for Engaged Learning in the Law, http://www.elon.edu/e-web/law/cell/?m=1.  Elon is grouped with the schools ranked below 145.  U.S. News & World Rep., supra note 2, at 74.

[8] See, e.g., Harry T. Edwards, The Growing Disjunction Between Legal Education and the Legal Profession, 91 Mich. L. Rev. 34 (1992); Alex M. Johnson, Jr., Think Like a Lawyer, Work Like a Machine:  The Dissonance Between Law School and Law Practice, 64 S. Cal. L. Rev. 1231, 1252–60 (1991).

[9] See generally William M. Sullivan, et al., Educating Lawyers:  Preparation for the Profession of Law (2007); see also Katy Montgomery & Neda Khatamee, What Law Firms Want in New Recruits, 24 N.Y. L.J. 11 (2009) (noting a partner who explained that “current economic conditions . . . make it more imperative that new associates hit the ground running . . . .”).

[10] See Katy Hopkins, Law School Tuition Climbs Despite Legal Recession, U.S. News & World Rep. (Sept. 9, 2010), http://articles.bestlawfirms.usnews.com/articles/law/2010/09/09/rising-demand-rising-tuition.html. Paul Krugman believes the country is actually in a depression. Paul Krugman, End This Depression Now! (2012).

[11] 78 F.3d 932 (5th Cir. 1996), abrogated by Grutter v. Bollinger, 539 U.S. 306 (2003).

[12]  The issue of affirmative action in law school admissions was settled by the Supreme Court of the United States in the University of Michigan Law School case.  Grutter v. Bollinger, 539 U.S. 306 (2003).  The Court has recently granted certiorari in a case that will likely revisit this issue. Fisher v. University of Texas at Austin, 631 F.3d 213 (5th Cir. 2011), cert. granted, University of Texas at Austin v. Fisher, 132 S. Ct. 1536, (2012).

[13] Sullivan, supra note 9.

[14] See generally Roger C. Cramton & Barry B. Boyer, A Proposed Program of Studies in Legal Education (1973); Legal Education and Professional Development–An Educational Continuum, Report of The Task Force on Law Schools and the Profession: Narrowing the Gap (ABA 1992); Roy Stuckey et al., Best Practices for Legal Education: A Vision and a Road Map (Clinical Leg. Educ. Assn. 2007).

[15] Sullivan, supra note 9, at 194.

[16] There has always been an upper-level skills requirement of some sort at Bowen.

[17] See Kelly S. Terry, Externships:  A Signature Pedagogy for the Apprenticeship of Professional Identity and Purpose, 59 J. Legal Educ. 240 (2009).

[18] See Tonya Smith, Bar Passage Results Announced, UALR William H. Bowen School of Law (Sept. 13, 2011), http://ualr.edu/law/2011/09/13/bar-passage-results-announced/ (announcing first time taker passage rate of 83.4%).

[19] U.S. News & World Report, supra note 2; Cost of Attendance, UALR William H. Bowen School of Law http://ualr.edu/law/tuition-and-fees/costs-of-attendance/.  Indeed, Malcolm Gladwell recently set up a ranking system for law schools that incorporated the price of tuition.  Under Mr. Gladwell’s calculations, Bowen was in the top fifty. Malcolm Gladwell’s Law School Rankings, TaxProf Blog (Feb. 17, 2011), http://taxprof.typepad.com/taxprof_blog/2011/02/malcom-gladwell.html.

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