Infusing Passion and Context into the Traditional Law Curriculum Through Experiential Learning

Journal of Legal Education

Volumn 51, Issue 1, 2001, Pages 51-73

  Maranville, Deborah ^a  

^a NONE

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EID: 0035603823     PISSN: 00222208     EISSN: None     Source Type: Journal    
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References (68)

1. I use the term passion here in the sense of "boundless enthusiasm" (definition 3a in American Heritage Dictionary) and "[a]ny kind of feeling by which the mind is powerfully affected or moved" (definition III.6 in the Oxford English Dictionary). Other meanings of the term -"suffering or affliction," "an outburst of anger or bad temper," or "amorous feeling" - may have cynical or humorous applications here but are not, of course, what I am seeking to convey. I use the term passion in part because legal education has traditionally accepted the long-standing dichotomy in Western thought between thinking and feeling, the rational and the emotional, and has privileged the rational to the exclusion of the emotional. In my view good lawyers need to recognize the inseparability of the two, developing a familiarity, facility, and comfort level with both. Similarly good teaching must address the whole person.
2. See Frank S. Bloch, The Andragogical Basis of Clinical Legal Education, 35 Vand. L. Rev. 321 (1982); but cf. Linda Morton et al., Not Quite Grown Up: The Difficulty of Applying an Adult Education Model to Legal Externs, 5 Clinical L. Rev. 469 (1999).
3. See Frank S. Bloch, The Andragogical Basis of Clinical Legal Education, 35 Vand. L. Rev. 321 (1982); but cf. Linda Morton et al., Not Quite Grown Up: The Difficulty of Applying an Adult Education Model to Legal Externs, 5 Clinical L. Rev. 469 (1999).
4. In my view competition can play a useful role in helping people achieve their highest level of performance, but typically competition is effective only for people who experience or can anticipate reaching a high enough level of achievement to compete effectively.
5. Meanwhile the more typical law student, intellectually oriented and tending toward introversion, fails to develop the people skills that will enhance her ability to communicate with clients, colleagues, opponents, and judges.
6. See, e.g., Roger Cramton, The Ordinary Religion of the Law School Classroom, 29 J. Legal Educ. 247 (1978).
7. In 1988, for example, 41 percent of women and 30 percent of men entered law school at the University of California, Berkeley, desiring to work in public interest or public sector jobs. After one semester the numbers dropped sharply. Suzanne Homer & Lois Schwartz, Admitted but Not Accepted: Outsiders Take an Inside Look at Law School, 5 Berkeley Women's L.J. 1 (1989). Cf. Robert V. Stover, Making It and Breaking It: The Fate of Public Interest Commitment During Law School 13 (Urbana, 1989) (in 1977, 28 to 37 percent of law students entering the University of Denver desired a public interest practice); Howard S. Erlanger & Douglas A. Klegon, Socialization Effects of Professional School: The Law School Experience and Student Orientations to Public Interest Concerns, 13 Law & Soc'y Rev. 28, 29 (1978) (in 1973, 38 percent of entering law students at the University of Wisconsin desired a "social reform" or "social reform, maybe traditional job"). These studies are somewhat dated. But despite the 1990s emphasis on wealth and making money, the growth of public interest law associations around the country over the last decade suggests that current numbers are still substantial.
8. In 1988, for example, 41 percent of women and 30 percent of men entered law school at the University of California, Berkeley, desiring to work in public interest or public sector jobs. After one semester the numbers dropped sharply. Suzanne Homer & Lois Schwartz, Admitted but Not Accepted: Outsiders Take an Inside Look at Law School, 5 Berkeley Women's L.J. 1 (1989). Cf. Robert V. Stover, Making It and Breaking It: The Fate of Public Interest Commitment During Law School 13 (Urbana, 1989) (in 1977, 28 to 37 percent of law students entering the University of Denver desired a public interest practice); Howard S. Erlanger & Douglas A. Klegon, Socialization Effects of Professional School: The Law School Experience and Student Orientations to Public Interest Concerns, 13 Law & Soc'y Rev. 28, 29 (1978) (in 1973, 38 percent of entering law students at the University of Wisconsin desired a "social reform" or "social reform, maybe traditional job"). These studies are somewhat dated. But despite the 1990s emphasis on wealth and making money, the growth of public interest law associations around the country over the last decade suggests that current numbers are still substantial.
9. In 1988, for example, 41 percent of women and 30 percent of men entered law school at the University of California, Berkeley, desiring to work in public interest or public sector jobs. After one semester the numbers dropped sharply. Suzanne Homer & Lois Schwartz, Admitted but Not Accepted: Outsiders Take an Inside Look at Law School, 5 Berkeley Women's L.J. 1 (1989). Cf. Robert V. Stover, Making It and Breaking It: The Fate of Public Interest Commitment During Law School 13 (Urbana, 1989) (in 1977, 28 to 37 percent of law students entering the University of Denver desired a public interest practice); Howard S. Erlanger & Douglas A. Klegon, Socialization Effects of Professional School: The Law School Experience and Student Orientations to Public Interest Concerns, 13 Law & Soc'y Rev. 28, 29 (1978) (in 1973, 38 percent of entering law students at the University of Wisconsin desired a "social reform" or "social reform, maybe traditional job"). These studies are somewhat dated. But despite the 1990s emphasis on wealth and making money, the growth of public interest law associations around the country over the last decade suggests that current numbers are still substantial.
10. Thanks to the New York University Law School clinicians who shared their perceptions of students' motivations and helped me expand my thinking on this topic in a work-in-progress presentation.
11. See, e.g., Learning to Serve: The Findings and Proposals of the AALS Commission on Pro Bono and Public Service Opportunities (Washington, 1999).
12. Steven Keeva, Transforming Practices: Finding Joy and Satisfaction in the Legal Life 4 (Chicago, 1999).
13. On Being a Happy, Healthy and Ethical Member of an Unhappy, Unhealthy and Unethical Profession, 52 Vand. L. Rev. 871, 941 (1999).
14. Kenneth G. Dau-Schmidt & Kaushik Mukhopadhaya, The Fruits of Our Labors: An Empirical Study of the Distribution of Income and Job Satisfaction Across the Legal Profession, 49 J. Legal Educ. 342 (1999). The authors nevertheless conclude that the tradeoff between money and job satisfaction makes large-firm practice a good deal and public interest practice a bad deal. Because I place a much different value on money than the authors do, I disagree with their conclusion.
15. The Healing Power of Doing Good: The Health and Spiritual Benefits of Helping Others (New York, 1992). See also John Wilson & Marc Musick, The Effects of Volunteering on the Volunteer, 62 Law & Contemp. Probs. 141 (1999).
16. The Healing Power of Doing Good: The Health and Spiritual Benefits of Helping Others (New York, 1992). See also John Wilson & Marc Musick, The Effects of Volunteering on the Volunteer, 62 Law & Contemp. Probs. 141 (1999).
17. Luks, supra note 12, at 83-87.
18. Id. at 52.
19. No necessary connection exists between clinical methodologies and public interest work, but most law school clinical programs, both in-house and externship-oriented ones, engage in public interest representation. Three primary factors have contributed to this public interest orientation: the role of the Ford Foundation-funded Council for Legal Education in Professional Responsibility in providing funding for clinics, fear of backlash from the private bar if clinics compete with private practitioners for clients, and the structure of most student practice rules. Materials for simulation programs have not been targeted at public interest work, on the other hand. Case files developed for the National Institute for Trial Advocacy mock trials, for instance, span a wide range of subject matter.
20. See, e.g. Gerald F. Hess, Listening to Our Students: Obstructing and Enhancing Learning in Law School, 31 U.S.F. L. Rev. 941 (1997); Paula Lustbader, Teach in Context, 48 J. Legal Educ. 402 (1998).
21. See, e.g. Gerald F. Hess, Listening to Our Students: Obstructing and Enhancing Learning in Law School, 31 U.S.F. L. Rev. 941 (1997); Paula Lustbader, Teach in Context, 48 J. Legal Educ. 402 (1998).
22. Both meaningful discussions about the policies underlying legal doctrine and sophisticated critique of legal institutions and lawyers require this type of context.
23. I wrote this sentence before encountering a similar phrase - "anchoring experiences," to describe a comparable process in mathematics education - in Howard Gardner, The Unschooled Mind 234 (New York, 1991). See also Wilbert J. McKeachie et al., Teaching and Learning in the College Classroom: A Review of the Research Literature, 2d ed., 26 (Ann Arbor, 1990) (describing Mayer's assimilation encoding theory as trying to "explain the function of advance organizers in terms of activation of anchoring knowledge in long-term memory").
24. I wrote this sentence before encountering a similar phrase - "anchoring experiences," to describe a comparable process in mathematics education - in Howard Gardner, The Unschooled Mind 234 (New York, 1991). See also Wilbert J. McKeachie et al., Teaching and Learning in the College Classroom: A Review of the Research Literature, 2d ed., 26 (Ann Arbor, 1990) (describing Mayer's assimilation encoding theory as trying to "explain the function of advance organizers in terms of activation of anchoring knowledge in long-term memory").
25. Research findings supporting active learning are discussed in Mary Deane Sorcinelli, Research Findings on the Seven Principles, in Applying the Seven Principles for Good Practice in Undergraduate Education, eds. Arthur W. Chickering & Zelda F. Gamson (San Francisco, 1991) [hereinafter Applying the Seven Principles] and Gerald F. Hess, Principle 3: Good Practice Encourages Active Learning, 49 J. Legal Educ. 401 (1999) (one of a series of articles concerning Seven Principles for Good Practice in Legal Education).
26. Research findings supporting active learning are discussed in Mary Deane Sorcinelli, Research Findings on the Seven Principles, in Applying the Seven Principles for Good Practice in Undergraduate Education, eds. Arthur W. Chickering & Zelda F. Gamson (San Francisco, 1991) [hereinafter Applying the Seven Principles] and Gerald F. Hess, Principle 3: Good Practice Encourages Active Learning, 49 J. Legal Educ. 401 (1999) (one of a series of articles concerning Seven Principles for Good Practice in Legal Education).
27. Experiential Learning: Experience as the Source of Learning and Development (Englewood Cliffs, 1984).
28. Marilla D. Svincki & Nancy M. Dixon, The Kolb Model Modified for Classroom Activities, in Teaching and Learning in the College Classroom, eds. Kenneth Feldman & Michael B. Paulsen 577, 579 (Needham Heights, 1998).
29. Teach the Whole Class, eds. Gerald F. Hess et al., Institute for Law School Teaching, Gonzaga University (1997). This quotation is on tape 7 (Seattle University) at 6:30.
30. My thanks to an anonymous reviewer for suggesting that this question demands a response.
31. My argument has a distinguished pedigree. See Jerome Frank, A Plea for Lawyer-Schools, 56 Yale L.J. 1303, 1344 n.104 (1947); Stephen Wizner & Dennis Curtis, "Here's What We Do": Some Notes About Clinical Legal Education, 29 Clev. St. L. Rev. 673, 678 (1980).
32. My argument has a distinguished pedigree. See Jerome Frank, A Plea for Lawyer-Schools, 56 Yale L.J. 1303, 1344 n.104 (1947); Stephen Wizner & Dennis Curtis, "Here's What We Do": Some Notes About Clinical Legal Education, 29 Clev. St. L. Rev. 673, 678 (1980).
33. Readers familiar with Jerome Bruner's "spiral curriculum" from the educational theory literature will note that my proposal is consistent with that concept, although Bruner's focus was on the K-12 curriculum and the desirability of introducing basic concepts and foundational knowledge at an early stage. See Jerome Bruner, The Process of Education 52-54 (Cambridge, Mass., 1960, 1977).
34. My colleague Jacqueline McMurtrie, for instance, requires her first-year Criminal Law students to go on one of three jail tours that she arranges and to write a journal entry about the experience.
35. The University of Maryland School of Law has been a leader in developing clinical experiences suitable for first-year students. One approach they have used is to assign students to projects in which they gather information about the actual workings of the judicial system. See, e.g. Barbara Bezdek, Silence in the Court: Participation and Subordination of Poor Tenants' Voices in Legal Process, 20 Hofstra L. Rev. 533 (1992).
36. This exercise is cited favorably by a student in the wonderful videotape, Teach to the Whole Class, supra note 22. Unfortunately, I am unable to give proper credit to the creative teacher who came up with the idea.
37. Any number of other combinations of exercises can be readily imagined, including more ambitious first-year experiences. In many law schools students participate in volunteer activities that play an important role in sustaining them. My point is not to suggest that these specific exercises are the best ones for everyone, but merely to illustrate the range of possibilities.
38. Attached? No, not literally, but taught in the same semester or quarter and requiring enrollment in the substantive course as a corequisite.
39. See, e.g., Symposium on Simulations, 45 J. Legal Educ. 469 (1995) (including introductory article by Jay Feinman and articles by Robert G. Vaughn describing use of simulations in first-year Civil Procedure class, Lynne L. Dallas on limited-time simulations in business law classes, Karl S. Okamoto on corporate practice, and Lloyd Snyder on pretrial practice course); Derrick Bell, A Pre-Memorial Message on Law School Teaching, 23 N.Y.U. Rev. L. & Soc. Change 205 (1997) (discussing constitutional law course structured around student research and argument of detailed hypothetical cases); Kate E. Bloch, A Rape Law Pedagogy, 7 Yale J.L. & Feminism 307 (1995) (discussing use of simulated legislative hearing to discuss rape in first-year Criminal Law course); Kenney Hegland, Fun and Games in the First Year: Contracts by Roleplay, 31 J. Legal Educ. 534 (1981).
40. See, e.g., Symposium on Simulations, 45 J. Legal Educ. 469 (1995) (including introductory article by Jay Feinman and articles by Robert G. Vaughn describing use of simulations in first- year Civil Procedure class, Lynne L. Dallas on limited-time simulations in business law classes, Karl S. Okamoto on corporate practice, and Lloyd Snyder on pretrial practice course); Derrick Bell, A Pre-Memorial Message on Law School Teaching, 23 N.Y.U. Rev. L. & Soc. Change 205 (1997) (discussing constitutional law course structured around student research and argument of detailed hypothetical cases); Kate E. Bloch, A Rape Law Pedagogy, 7 Yale J.L. & Feminism 307 (1995) (discussing use of simulated legislative hearing to discuss rape in first-year Criminal Law course); Kenney Hegland, Fun and Games in the First Year: Contracts by Roleplay, 31 J. Legal Educ. 534 (1981).
41. See, e.g., Symposium on Simulations, 45 J. Legal Educ. 469 (1995) (including introductory article by Jay Feinman and articles by Robert G. Vaughn describing use of simulations in first- year Civil Procedure class, Lynne L. Dallas on limited-time simulations in business law classes, Karl S. Okamoto on corporate practice, and Lloyd Snyder on pretrial practice course); Derrick Bell, A Pre-Memorial Message on Law School Teaching, 23 N.Y.U. Rev. L. & Soc. Change 205 (1997) (discussing constitutional law course structured around student research and argument of detailed hypothetical cases); Kate E. Bloch, A Rape Law Pedagogy, 7 Yale J.L. & Feminism 307 (1995) (discussing use of simulated legislative hearing to discuss rape in first-year Criminal Law course); Kenney Hegland, Fun and Games in the First Year: Contracts by Roleplay, 31 J. Legal Educ. 534 (1981).
42. See, e.g., Symposium on Simulations, 45 J. Legal Educ. 469 (1995) (including introductory article by Jay Feinman and articles by Robert G. Vaughn describing use of simulations in first- year Civil Procedure class, Lynne L. Dallas on limited-time simulations in business law classes, Karl S. Okamoto on corporate practice, and Lloyd Snyder on pretrial practice course); Derrick Bell, A Pre-Memorial Message on Law School Teaching, 23 N.Y.U. Rev. L. & Soc. Change 205 (1997) (discussing constitutional law course structured around student research and argument of detailed hypothetical cases); Kate E. Bloch, A Rape Law Pedagogy, 7 Yale J.L. & Feminism 307 (1995) (discussing use of simulated legislative hearing to discuss rape in first-year Criminal Law course); Kenney Hegland, Fun and Games in the First Year: Contracts by Roleplay, 31 J. Legal Educ. 534 (1981).
43. See, e.g., the Seattle University Skills Development Series, which to date includes volumes of simulation materials and detailed teacher's manuals for Administrative Law, Commercial Paper, Criminal Procedure, and Evidence. (Author's disclosure: I created the volume on Administrative Law.)
44. Andi Curcio, Courtroom Visits as a Way to Learn Evidence, in Law Tchr., Fall 2000, at 7.
45. Learning Contract reproduced in Institute for Law School Teaching, Fresh Looks at Teaching and Learning Law (Spokane, 1999).
46. See National Information Center for Service Learning, 〈http://www.nicsl.coled.umn.edu〉 (select databases: literature for online database of articles and abstracts); Jeffrey A. Cantor, Experiential Learning in Higher Education: Linking Classroom and Community, Report 7, ASHE-ERIC Higher Education Reports (Washington, 1995); Janet Eyler et al., A Practitioner's Guide to Reflection in Service-Learning: Student Voices & Reflections. (Nashville, 1996).
47. See National Information Center for Service Learning, 〈http://www.nicsl.coled.umn.edu〉 (select databases: literature for online database of articles and abstracts); Jeffrey A. Cantor, Experiential Learning in Higher Education: Linking Classroom and Community, Report 7, ASHE-ERIC Higher Education Reports (Washington, 1995); Janet Eyler et al., A Practitioner's Guide to Reflection in Service-Learning: Student Voices & Reflections. (Nashville, 1996).
48. See National Information Center for Service Learning, 〈http://www.nicsl.coled.umn.edu〉 (select databases: literature for online database of articles and abstracts); Jeffrey A. Cantor, Experiential Learning in Higher Education: Linking Classroom and Community, Report 7, ASHE-ERIC Higher Education Reports (Washington, 1995); Janet Eyler et al., A Practitioner's Guide to Reflection in Service-Learning: Student Voices & Reflections. (Nashville, 1996).
49. For guidance see Feinman, supra note 31.
50. The term lab course was coined by John Mitchell of the Seattle University School of Law. It has also been adopted by Gonzaga Law School; see Kay Lundwall, Skills Labs: Where Professors, Practitioners Meet, Law Tchr., Fall 1999, at 2.
51. See, e.g., John B. Mitchell et al., And Then Suddenly Seattle University Was on Its Way to a Parallel, Integrative Curriculum, 2 Clinical L. Rev. 1 (1995).
52. One such teacher is Karen Czapanskiy, University of Maryland. Another is Scott Taylor, University of New Mexico, who suggested to me in an e-mail that "students are much more motivated when their work has the potential to affect the outcome of something" and that "simulations . . . work best when they are practice for something that is real, such as a practice oral argument in a pending case or a practice interview in preparation for the interview of a real client. Practice moot court rounds are within this tradition because we pick winners and losers in the actual competition."
53. Cf. James E. Moliterno, Legal Education, Experiential Education, and Professional Responsibility, 38 Wm. & Mary L. Rev. 71, 109 (1996) (discussing benefits of William and Mary's Legal Skills Program; students engage in extended simulations in which they represent the clients from a logical beginning point, such as an initial interview, through a logical end point, such as a successful negotiation or the conclusion of an appellate process.
54. In recent years, for instance, I have been supervising an Unemployment Law Clinic in which students represent clients in unemployment compensation hearings. This clinic works well on many levels. The students get extensive experience in client interviewing and counseling and fact investigation. The cases rarely settle, so students almost always get the opportunity to examine witnesses in a contested hearing. The cases move quickly, so students typically see them through from start to finish. But because the cases are taken on referral from a nonprofit agency specializing exclusively in such cases, they come prepackaged with limited opportunity for doctrinal crossover.
55. See, e.g., the Seattle University Skills Development Series, supra note 32.
56. Student Involvement in Improving Law Teaching and Learning, 67 UMKC L. Rev. 343 (1998); Hess, supra note 16.
57. Student Involvement in Improving Law Teaching and Learning, 67 UMKC L. Rev. 343 (1998); Hess, supra note 16.
58. See Thomas A. Angelo & K. Patricia Cross, Classroom Assessment Techniques: A Handbook for College Teachers (San Francisco, 1993).
59. Mary P. Driscoll, Psychology of Learning for Instruction (Boston, 1994); Gordon H. Bower & Ernest R. Hilgard, Theories of Learning, 5th ed. (Englewood Cliffs, 1981).
60. Mary P. Driscoll, Psychology of Learning for Instruction (Boston, 1994); Gordon H. Bower & Ernest R. Hilgard, Theories of Learning, 5th ed. (Englewood Cliffs, 1981).
61. A search for "feedback" on the ERIC database on education research on November 13, 2000, generated 9,974 entries for the time period 1992-2000.
62. See Applying the Seven Principles, supra note 19.
63. 49 J. Legal Educ. 418 (1999).
64. Michael J. Dunkin with Jennifer Barnes, Research on Teaching in Higher Education, in Handbook of Research on Teaching, 3d ed., ed. Merlin C. Wittrock, 754, 758 (New York, 1985).
65. Wilbert J. McKeachie et al., Teaching and Learning in the College Classroom: A Review of the Research Literature, reprinted in Teaching and Learning in the College Classroom, eds. Kenneth Feldman & Michael B. Paulsen, 81, 113-14 (Needham Heights, 1998).
66. Kathleen T. Brinko, Optimal Conditions for Effective Feedback 5 (1990) (ERIC Reports). See also Daniel B. Willingham, Effective Feedback on Written Assignments, 17 Tchr. Psych. 10 (1990).
67. Kathleen T. Brinko, Optimal Conditions for Effective Feedback 5 (1990) (ERIC Reports). See also Daniel B. Willingham, Effective Feedback on Written Assignments, 17 Tchr. Psych. 10 (1990).
68. See Anne Enquist, Critiquing and Evaluating Law Students' Writing: Advice from Thirty-five Experts, 22 Seattle U. L. Rev. 1119, 1130 (1999).