Atlanta's John Marshall Law Journal Volume III Issue I by Atlanta's John Marshall Law School

JOHN MARSHALL LAW JOURNAL

Volume 3

2009

INTRODUCTORY ESSAYS A History of the Racial Disparities in Legal Education in South Africa Lesley Greenbaum .....

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Teaching Legal Writing to a Large Undergraduate Class: A Tanzanian Experience Tushar Kanti Saha

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ARTICLES Developmental Learning Theory and the American Law School Curriculum Steven D. Schwinn..

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Creating the Perfect Storm: How Partnering with the ACLU Integrates the Carnegie Report's Three Apprenticeships Kathleen M. Burch and Chara Fisher Jackson..............

Teaching Legal Writing at the University of the Witwatersrand Law Clinic Shaheda Mahomed and PhilippaKruger ..................

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Interactive Group Learning in the Legal Writing Classroom: An International Primer on Student Collaboration and Cooperation in Large Classrooms Roberta K. Thyfault and Kathryn Fehrman ................

Cite as John Marshall L.J.

135

PREFACE

The task of providing adequate legal education to prepare students for the practice of law presents challenges in the best of circumstances. When the trials of a new democracy, language barriers and the minimal resources available to developing countries are factored into the equation, the goal of effective legal education becomes even harder to attain. In an effort to enhance the quality of legal education in English-speaking countries in Africa, the Academics Promoting the Pedagogy of Effective Advocacy in Law ("APPEAL") has striven to promote clear communication by sharing ideas, expertise and resources related to teaching effective legal writing and oral advocacy with legal educators in Africa. APPEAL is an organization of academics, lawyers and judges, from both Africa and the United States, dedicated to promoting justice and the rule of law in the world community. The organization was formed in 2007 when Professors Mimi Samuel and Laurel Currie Oates, both from the Seattle University School of Law, organized a conference in Nairobi, Kenya, focusing on the teaching of legal writing. APPEAL grew out of the conference participants' desire to create a vehicle to continue their work together and develop effective teaching methods suited to the unique challenges of legal education in Africa. In the first two years of its existence, APPEAL has achieved three major accomplishments. First, it raised almost $20,000 to provide transportation and accommodation grants to seven African academics so that they could attend the Legal Writing Institute's biennial conference in Indianapolis, Indiana, in July 2008. Second, the organization collected over two tons of law books and, with the help of the Boeing Company and Kenya Airways, transported and distributed those books to institutions in Kenya, Tanzania, and Uganda. Finally, APPEAL organized the Conference on Promoting the Teaching of Legal Writing in Southern Africa, held in Pretoria, South Africa from July 1 to July 4, 2009. This conference focused on the development of curricula in legal writing for law faculties in Southern Africa, with particular emphasis on teaching large, undergraduate classes of students with a variety of language and educational backgrounds. This Special Edition of the John Marshall Law Journalcompiles the efforts of those who participated in and presented at this conference. The introductory essays provide a background of the challenges affecting legal education and a glimpse into a typical legal writing classroom in Southern Africa. The articles provide in depth discussions of the authors' suggested pedagogical methods for

imparting the legal writing skills necessary to prepare law students to practice law. This Special Edition is a first for the John Marshall Law Journal. The editors of the Journal have worked diligently to assemble this publication in a way that reflects the goals of the APPEAL organization. It is our hope that this publication will be a valuable tool to those academics who are tasked with elevating the quality of legal education in both Southern Africa and the United States. We are grateful to have had the opportunity to prepare this Special Edition in contribution to their efforts. Amelia A. Ragan Editor-in-Chief

A HISTORY OF THE RACIAL DISPARITIES IN LEGAL EDUCATION IN SOUTH AFRICA LESLEY GREENBAUM*

I. INTRODUCTION

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II. AN OVERVIEW OF LEGAL EDUCATION, THE LEGAL PROFESSION AND THE STRUCTURE OF THE COURTS IN SOUTH AFRICA ............................................................

III. HISTORICAL BACKGROUND OF THE LEGAL SYSTEM.. IV. THE DEVELOPMENT OF LEGAL EDUCATION V. TRANSITION TO A CONSTITUTIONAL DEMOCRACY

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VI. THE EFFECT OF THE LLB DEGREE ON THE REPRESENTIVITY ......................... OF THE RACES WITHIN THE LEGAL PROFESSION. ..............................

VII. LOOKING TOWARD THE FUTURE

13 16

I. INTRODUCTION

Although significant changes to legal education have been implemented in South Africa since the country's transition to a constitutional democracy in 1994, the remnants of previous inequalities continue to linger, replicating a cycle of disadvantage that is reflected in poor student graduation rates, high student attrition rates and the continuing domination of white males in the legal profession.' By tracing through the * Associate Professor, University of KwaZulu-Natal, Howard College Campus, Durban, South Africa. (BA, LLB, MEd) 1. See Ian Scott et al., Higher Education Monitor No. 6: A Case for Improving Teaching and Learning in South African Higher Education, 2007 COUNCIL

FOR

HIGHER

EDUC.

17,

available

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historical development of South African law and legal education, I will illustrate how access to the legal professions was carefully regulated by those in power to ensure that the pattern of white male domination persisted. This essay will begin with an overview of legal education, the legal profession and the court system in South Africa. Then, it will explain the historical background of South Africa's legal system followed by a discussion of the development of legal education in the country. Further, the essay will trace the effects that the transition to a constitutional democracy has had on legal education and, in particular, the effect that the change to an undergraduate Bachelor of Laws degree has had on legal education and the legal profession. Finally, this essay will conclude with an eye toward the future of legal education in South Africa.

II. AN OVERVIEW OF LEGAL

EDUCATION, THE LEGAL PROFESSION AND THE STRUCTURE OF THE COURTS IN SOUTH AFRICA

A brief overview of the current system of legal education, the divisions within the legal profession and the structure of the courts in South Africa is necessary to establish the context for the discussion that will form the main argument in this paper. The system of legal education that persists at present in South Africa consists of two distinct phases functioning in tandem to prepare candidates for admission to legal practice either as an attorney or as an advocate. The initial, or foundational, phase of legal education consists of obtaining a law degree, the Bachelor of Laws ("LLB"), conferred by a university. Many graduates who complete a law degree choose not to enter professional practice, opting for the business world, politics or government service.2 The second phase of legal education is http://www.che.ac.za/documents/dOO155/HEMonitor_6_ITLSOct2007.p

df; see also National Survey of the Attorney's Profession, 2008 L. Soc'Y S. AFR. 5, available at http://lssa.questweb.co.za/Uploads/files/National%20Survey%2OoP/2Othe%

20Attomeys%20Profession%202008.pdf [hereinafter NationalSurvey]. 2. SHANE GODFREY & ROB MIDGLEY, S. AFR. DEP'T OF LABOUR, LAW PROFESSIONALS: SCARCE AND CRITICAL SKILLS RESEARCH PROJECT 51 (2008) (statistics from 2007 suggest that approximately 40 to 50% of law

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provided by legal professionals to prepare graduates for their admission or bar examination, which is a prerequisite to being admitted to legal practice. Legal practitioners must elect to join one of two possible branches of the profession: attorneys or advocates. Members of the attorneys' profession generally provide day-to-day legal services to citizens litigating in the magistrate or lower courts.3 Advocates function as specialists, preparing opinions on more complex legal issues and arguing matters in the high courts (including the Constitutional court) where judges preside. The primary distinction between the two branches of the profession is related to the level of the courts in which practitioners have a right to appear. However, other distinctions do exist; for example, advocates may only be accessed by clients through a referral from an attorney, while attorneys may be accessed by clients and take instructions directly from a client "off the street." Advocates cannot enter into partnerships with other advocates, while attorneys may operate either as sole practitioners or associates in large partnerships or firms. The courts in South Africa are organized in a hierarchical structure which relates to the weight of authority that is attached to the judgments that emanate from each level of courts.' This is an important distinction because the application of the doctrine of precedent ensures that lower courts are bound by the decisions of higher courts, as all courts are bound to follow the decisions of previous courts of equal or higher ranking.5 Magistrates' courts are located on the lowest tier at a local level.6 Magistrates are appointed and employed by the Department of Justice.7 Two categories of magistrates' courts exist.8 On the first level are the district magistrates' courts school graduates do not enter the legal profession). 3. Right of Appearance in Courts Act 62 of 1995 § 4(1)(b) (permitting practicing attorneys who have three years of experience as a practitioner to apply for permission to appear in the high courts). 4. See S. AFR. CONST. 1996 § 166; see also PEGGY MAISEL & LESLEY GREENBAUM, INTRODUCTION TO LAW AND LEGAL SKILLS 66 (2001). 5. See S. AFR. CONST. 1996 §§ 166-70; see also George Devenish, The DoctrineofPrecedent in South Africa, 28 OBITER 1, 3 (2007). 6. See S. AFR. CONST. 1996 § 170. 7. Id. at § 9A (a). 8. South African Government Information,

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which are located in ever7 region throughout the country encompassing 366 districts. To be appointed as a presiding magistrate in a district court, a person must have obtained at least a three year law degree or an LLB degree. In addition, a person must have undergone some further training and mentorship at Justice College, which is the educational agency of the Department of Justice.' 0 The jurisdiction of district courts in civil matters is limited to claims of up to 100,000 rands ($1 equals approximately 8 rands) and criminal matters involving sentences not exceeding three years of imprisonment or a fine of 60,000 rands." The second level of magistrates' court is the regional magistrates' court, in which presiding magistrates must hold an LLB degree and have had at least seven years' legal experience.' 2 Regional magistrates' courts deal with only criminal matters and were, in the past, permitted to impose a sentence of imprisonment not exceeding fifteen years or a fine of not more than 300,000 rands.' 3 However, in response to the high crime rate and the increasing burden on the criminal justice system, recent statutory amendments have increased regional magistrate's penal sentencing jurisdiction to life imprisonment for certain offenses, in the absence of substantial and compelling reasons for not imposing this maximum punishment.' 4 There is a provincial division of the high court located in each of the ten major geographical regions of the country." The jurisdiction of high courts is unlimited in terms of sentences imposed by or the size of claims heard in these courts.16 Judges are appointed to the high courts by the president, acting on the recommendation of the Judicial Service http://www.info.gov.za/aboutgovt/justice/courts.htm#05magistrate (last visited Jul. 6, 2009). 9. Id. 10. Magistrates' Courts Act 32 of 1944 § 9(1)(a) (substitutedby Act 90 of 1993 § 17.). 11. Magistrates' Courts Act 32 of 1944 § 29. 12. Id. at § 9(b). 13. Id. at § 29. 14. The Criminal Law (Sentencing) Amendment Act 38 of 2007 § 5 1(1). 15. Renaming of High Courts Act 30 of 2008 § 1. 16. Supreme Court Act 59 of 1959 § 19.

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Commission, a statutory body created by the Constitution.' 7 Appeals from decisions of the provincial high courts proceed to the Supreme Court of Appeals in Bloemfontein, South Africa's judicial capital.' 8 The Constitutional Court, situated in Johannesburg, South Africa, is the highest court in the country as it has jurisdiction to review all matters of a constitutional nature, including disputes between organs of state, the constitutionality of any amendment to the Constitution, any parliamentary or provincial bill, any Act of Parliament, or the conduct of the President.19 The President of the Constitutional Court and ten justices, also appointed by the President of South Africa on the recommendation of the Judicial Service Commission, preside in this court.2 0 This outline of the current structural features of the South African legal system foreshadows the divisions, hierarchies and levels of differentiation that have dominated the landscape of legal education. Historical separateness, culminating in the explicit "apartheid" policy, has characterized much of the texture of the legal system and continues to play a determinant role in the field of legal education despite attempts by the past government to redress democratically-elected disadvantage. As Dhlamini stated in 1992: [O]ur legal education in South Africa was strongly influenced by the governmental policy of apartheid. This policy was not based on the idea of justice, and it had an effect on our approach to law, as well as on the relationship between law teacher and law student. As a result, our legal education was riddled with contradictions, anomalies and inconsistencies. There are various ways whereby our legal education either bolstered apartheid or was influenced by it. 21

17. S. AFR. CONST. 1996 ยง 178. 18. Id. at ยง 168. 19. Id. at ยง 167. 20. Id. at ยง 178. 21. Charles Dhlamini, The Law Teacher, The Law Student and Legal Education in South Africa, 109 SALJ 595, 598 (1992).

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III. HISTORICAL BACKGROUND OF THE LEGAL SYSTEM

The legal system in South Africa has its origins in RomanDutch Law, which was brought to South Africa from the Netherlands in 1652 with the arrival of Dutch colonizers. 22 The customary or indigenous law of the African inhabitants at the Cape colony was not recognized by the Dutch colonizers other than as a subsidiary and inferior system applied only between the inhabitants themselves. 23 Roman-Dutch Law ceased to be used as a living system of law in the Netherlands in 1806 when France took control and imposed the French Code. 24 However, in South Africa, Roman-Dutch law principles ("the common law") remained in place in some areas of the law, such as property law, contracts and wills, because these were strongly grounded in equitable principles and supported by an adequate availability of authoritative text sources both in Latin and Dutch.2 5 When the British assumed control over the colony in 1806, many aspects of English Law were adopted and shaped the existing South African procedural law and all branches of commercial law, such as insurance law, maritime law and company law. 26 English Law supplemented the deficiencies and gaps that had arisen in the law as it developed at the Cape and largely affected the administration of justice by establishing a Cape Supreme Court in 1832 and, thereafter, requiring advocates and judges to be trained in England.2 7 This hybrid system of law at the Cape was taken to the other provinces into which the colonizers extended their control and was adopted as the law of the Union of South Africa in 1909 when all four 22. Phillip Iya, The Legal System and Legal Education in Southern Africa: Past Influences and Current Challenges, 51 J. LEGAL EDUC. 356, 355-62 (2001). 23. Id. at 356. 24. PEGGY MAISEL & LESLEY GREENBAUM, FOUNDATIONS OF SOUTH AFRICAN LAW: CRITICAL ISSUES FOR LAW STUDENTS 59 (2002).

25. Id. at 60. 26. Id. at 59-60. 27. John Kaburise, The Structure of Legal Education in South Africa, 51 J. LEGAL EDUC. 363, 363-71 (2001).

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colonies, Cape, Natal, Orange Free State, and Transvaal, were united as one state.2 8 South African law developed through the application and extension of common law principles in the courts. These principles were also applied in statutes enacted by the Cape Parliament and other provinces, such as in the Transvaal and the Orange Free State, which were established as independent Boer Republics, and in Natal which became a British colony in 1843 .29 The law increasingly played an important role in formally establishing the dominance of the minority white population over the majority of the inhabitants of the country. Statutes such as the Natal Code of 1878, the Native Succession Act of 1884, and Law 4 of 1885 in the Transvaal Republic all served to reinforce the application of a separate body of customary law for Africans, depriving them of recourse to the courts and recognition as full citizens.30 A policy of depriving the indigenous occupants of their land and their right to participate in the society, through limited access to political and legal processes and through a lack of educational and employment opportunities, was reflected consistently in the developing body of rules enacted by the British administrators and Boer governments. 3 ' When the four colonies were joined as the Union of South Africa in 1909, racial segregation as defacto practice in almost every aspect of daily life was the accepted norm.3 2 This separation of races became clearly articulated as the apartheid policy of the Nationalist Party, who governed the country from 1948 until the transition to a constitutional democracy in 1994. During this period, through an accumulation of legislative enactments, the government created racial classifications ensuring that citizens of different race groups occupied separate residential areas, used separate public amenities, attended separate educational institutions where different curricula were studied and were subject to restricted employment opportunities.3 3 This separation of the races was enforced by 28. 29. 30. 31. 32. 33.

Id. at 363. MAISAL & GREENBAUM, supra note 24, at 62. Id. at 62. Id. at 86. Id. at 84-85. See generally Population Registration Act 30 of 1950; Group Areas

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harsh policing and tight administrative control, severely limiting the legal educational and professional opportunities available to those outside the white male population. IV. THE DEVELOPMENT OF LEGAL EDUCATION The first qualification offered in law was the Law Certificate, which was taught informally by practitioners and qualified lawyers and required to practice law at the Cape in 1858.34 Formal university teaching of law began at the University of Cape Town ("UCT") in 1859, and the LLB degree was introduced there in 1874.35 The UCT Law Faculty was established as an official department within the University in 1918.36 The University of Stellenbosch Law Faculty, teaching law in Afrikaans, was established in 1921. The Stellenbosch Law Faculty offered an LLB degree which focused on practicerelated subjects, such as Roman Law and Roman-Dutch Law, as many faculty members were practicing lawyers. Law faculties were established in other regions of the country, following one of two curricular models: the English "liberal arts approach," which encouraged students to obtain a varied educational background in other disciplines, or the "UNISA model," which concentrated only on law courses and did not include many

Act 41 of 1950; Bantu Education Act 47 of 1953; Reservation of Separate Amenities Act 49 of 1953; Extension of University Education Act 45 of 1959. 34. Act 4 of 1858 and Act 12 of 1858 were passed by the Cape Parliament to establish a Board of Public Examiners and to regulate the admission of candidates to practice. 35. DENIS COWEN & DANIEL VISSER, THE UNIVERSITY OF CAPE TowN LAW FACULTY, A HISTORY 1859-2004 22 (2004).

36. Id. at 15. 37. Rob Midgley, Address at the Meeting of the Law and Society Association and the Research Committee on the Sociology of Law of the International Sociological Association: South Africa: Legal Education in a Transitional Society (Jul. 28, 2007).

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non-law subjects. 38 The UNISA model was the pattern mainly followed by Afrikaans and black universities. 39 In 1934, the South African Parliament enacted the Attorneys, Notaries and Conveyancers Admission Act 23 of 1934, to regulate the practical training of attorneys. 40 This statute required law graduates to complete two years of articles of clerkship, a type of apprenticeship where graduates would work in a law firm acquiring legal skills prior to being admitted to practice as an attorney. On the other hand, rules relating to the professional training of advocates were not statutory in origin and varied from province to province. Graduates wishing to be admitted as advocates have been required to complete a period of pupilage, which has now been fixed at one year's duration since 2004. Pupil advocates learn advocacy skills under the close tutelage of a practicing advocate before writing a bar examination that is administered by the General Council of the Bar, the advocates' professional association.4 1 By the 1970s, three law degrees were offered at South African universities. First, most law faculties offered the LLB degree, which, by then, was a two or three year post-graduate degree which followed a Bachelor of Arts, Bachelor of Commerce or other undergraduate degree and qualified graduates for practice in both the higher and lower courts. Second, some faculties offered a four year undergraduate degree, the Baccalaureus Procurationis ("B Proc"), which qualified graduates for practice as attorneys only. The B Proc degree replaced the Law Certificate which was a qualification for practice until 1979 and permitted persons who did not have 38. Idat 3. The University of South Africa ("UNISA") is a non-contact university which supplies written materials to students who study the materials alone wherever they might live. Examinations can be written in various centers throughout the world. 39. Id. 40. Attorneys, Notaries and Conveyances Admission Act 23 of 1934 (repealedby the Attorneys Act 53 of 1979 and amended by the Qualification of Legal Practitioners Amendment Act 78 of 1997). 41. GEN. COUNCIL OF THE BAR, UNIF. RULES OF PROF'L ETHICS R. 8 (amended 2004), availableat http://www.sabar.co.zalethics-rules.pdf. 42. The minimum entry requirements for the attorneys' profession were promulgated in the Attorneys' Act 53 of 1979 ยง 2. The minimum entry requirements for advocates were promulgated in the Admission of Advocates Act 74 of 1974 ยง 3.

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a university degree to access the attorneys' profession, even after the LLB degree had been introduced.4 3 Finally, a few faculties offered the three year Bachelor's degree, the Baccalaureus Juris, ("B Juris") which qualified graduates for practice as civil servants (prosecutors and magistrates) in the lower courts. Under the apartheid, separate education, including university education, was provided for students according to their racial designation, with separate institutions established for white, black, Indian and colored persons.4 4 The "historically black under-resourced and ("HBUs") were universities" inconveniently located in rural areas so that the quality of the education provided was not comparable to that offered at generally urban white institutions ("HWUs").4 5 Black students were permitted to attend white urban universities only if the obtained permission by the Minister of Education to do so. This separation perpetuated a sense of different quality degrees for different races and impacted graduates' abilities to obtain employment in top law firms. V. TRANSITION TO A CONSTITUTIONAL DEMOCRACY With the transition to democracy in 1994 came an urgent call to transform the legal profession and legal education. The need to address the under-representation of people of color in all areas of the legal profession and to establish a single, affordable academic qualification that would provide access to both branches of the profession was undeniable. After the new Department of Justice had convened several National Consultative Forums, involving all stakeholders in the legal system, a dramatic change to legal education was introduced.4 7 43. Midgley, supra note 37, at 4. 44. University Education Act 45 of 1959 (repealed). Persons of mixed racial origins were termed "colored" persons by the Population Registration Act 30 of 1959 to distinguish them from other "black" persons: the term "black" was and still is used in South Africa to include persons of African, Indian (Asian) and mixed racial origins. 45. Iya supra note 22, at 358. 46. Id. 47. The National Consultative Legal Forum on the Administration of Justice in South Africa was held November 11 through 13, 1994, in Cape

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The Qualification of Legal Practitioners Amendment Act of 1998 required all universities to introduce a four year undergraduate LLB degree, with agreement by the Law Deans on twenty-six "core courses" that would be incorporated into the curricula to be designed by each university. 48 A commitment to incorporate the teaching of legal skills and ethical values, and to heighten students' sensitivity to diversity, formed part of the proposal by the curriculum Task Team of Law Deans and professional representatives in 1996.49 This undergraduate LLB degree was registered by the South African Qualification Authority ("SAQA") and exit level outcomes for a law graduate were formally specified in 2002.50 The changed legal framework in South Africa, founded upon a Bill of Rights as part of a supreme Constitution that enshrines the values of dignity, equality and democracy, has infused law curricula with a pervasive human rights discourse that affects almost every law subject that is now taught. The effects of section 39(2) of the Constitution, which requires that in interpreting any legislation or in the development of the common law and customary law, courts must promote the spirit, purport and objectives of the Bill of Rights, have been to challenge the validit of many discriminatory principles and statutory provisions.' Similarly, section 39 of the Constitution requires that when courts are called on to interpret customary or indigenous African law, their rulin s should harmonize with the values set out in the Bill of Rights. 2 Most faculties have in the Town, South Africa. The Legal Forum on Legal Education was held April 21 through 22, 1995, also in Cape Town. The purpose of both conferences was to consult with stakeholders on the transformation of the legal system and legal education in the new democratic society. 48. Qualification of Legal Practitioners Amendment Act 78 of 1997 §§ 12. 49. David McQuoid-Mason, Developing the Law Curriculum to Meet the Needs of the 21st Century Legal Practitioner: A South African Perspective, 1 OBITER 101, 101-08 (2004); lya, supra note 22, at 359. 50. Samuel B.A. Isaacs, Bachelor ofLaws, NQF Level 7, at 16-20 (S. Afr. Qualifications Auth. Gov't Gazette No. 23845, Aug. 20, 2002), available at http://www.info.gov.za/view/DownloadFileAction?id=65308. 51. S. AFR. CONST. 1996 § 39(2). 52. Id. at § 39; see Hon. Yvonne Mokgoro, The Customary Law Question in the South African Constitution, 41 ST. LouIS L.J. 1279, 1281 (1997), available at

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last twenty years introduced specialist LLM programs that cover a variety of fields, as well as doctoral degrees, in the form of a PhD or an LLD. Although the post-1994 democratically elected government promised to redress the historical inequity of the HBUs, the reality is that their goals have not been met.54 HWUs continue to have better facilities and more resources, which attract more students and more state funding because state subsidies are Their superior linked to students enrollment numbers. 5 facilities make them more attractive to students and academic staff alike.5 6 Many of the historically disadvantaged institutions continue to be plagued by the structural and agential legacies of the past, such as poor management, funding crises and declining student enrollments.57 Although these universities were often the site of resistance to the apartheid regime and the focus of political opposition to the Nationalist government, since 1994, their appeal to black students and staff has diminished as they have not been able to develop strength in meeting the new imperatives of skills development, quality research production and creating improved facilities.5 8 The further statutory requirement for all practicing lawyers to have passed a university course in English, Afrikaans and Latin remained as an impediment to black candidates until it was removed in 1995.59 The cost and the length of time required to obtain an LLB degree to qualify as an advocate resulted in that branch of the profession being dominated by white males. Further, appointment as a judge could only be made from the ranks of experienced advocates. This served to reinforce the discriminatory effect that the differential qualifications had in terms of racial, gender and socio-economic bias. 60 http://www.vanuatu.usp.ac.fj/library/Online/Customary_1aw/Mokgoro.htm. 53. Midgley, supra note 37, at 4. 54. Nico CLOETE ET AL., TRANSFORMATION IN HIGHER EDUCATION: GLOBAL PRESSURE AND LOCAL REALITIES IN SOUTH AFRICA 398 (2002). 55. Id. 56. Id. at 397. 57. Id. at 396. 58. Id. at 399. 59. Admission of Advocates Amendment Act 55 of 1994 § 5; Admission of Legal Practitioners Act 33 of 1995 §§ 1-9. 60. GODFREY & MIDGLEY, supra note 2, at 21.

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The obstacles in gaining access to high quality tertiary education, together with the difficulty of obtaining articles of clerkship in urban white male-dominated law firms, as well as the unaffordable expense of the one year of pupilage ensured that black lawyers were effectively restricted to the lower levels of practice within the legal profession, even if they were successful in overcoming the many structural barriers within the differentiated education and legal systems. Black practitioners were geographically segregated by being restricted to practice in "townships" or black "homelands" according to the government yolicy of having separate trading areas for each racial group. It is estimated that in 1994, 85% of the legal profession in South Africa consisted of white lawyers. 62 At that time, there were only four black judges and two female judges appointed to the bench.63 Twenty law faculties offered academic qualifications in law. 64 Law curricula reflected the concerns of the economically dominant white population, with emphasis placed on commercial subjects.6 5 Scant regard was paid to issues such as customary law, poverty, social justice or a lack of access to the legal system that affected the majority of the population, who are black persons.6 6 Thus, the structure and regulatory framework of both legal education and the legal system contributed to and reinforced patterns of racial separation, socio-economic and political inequality that were endemic to the broader South African society. VI. THE EFFECT OF THE LLB DEGREE ON THE REPRESENTIVITY OF THE RACES WITHIN THE LEGAL PROFESSION

Ten years after introducing the undergraduate LLB degree, the pedagogical soundness of implementing this attenuated LLB 61. Black Lawyers Association, http://www.bla.org.za (last visited Jul. 6, 2009). 62. David McQuoid-Mason, Address at the International Conference on the Future of Legal Education: Transforming Legal Education for a Transformed Society: The Case of South Africa (Feb. 20-23, 2008). 63. Id. at 1. 64. Iya, supra note 22, at 358. 65. McQuoid-Mason, supra note 62, at 1. 66. Dhlamini, supra note 21, at 598.

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degree is being questioned by law academics and practitioners.6 7 The anticipated outcome of increasing black representation in both branches of the legal profession by offering the undergraduate LLB degree as a single, affordable qualification has not yet been met. A recent survey indicates that 80.2% of law firms are still owned by whites. 68 At universities, the composition of LLB graduates in 2008 reflected a gradually increasing number of black graduates: 1703 black (African) graduates, 1636 white graduates, 253 Indian graduates and 381 colored graduates. 6 9 However, as a reflection of the demographics of the total population of the country, these statistics indicate a continuing overrepresentation of white graduates. The participation rate of each racial group in higher education in terms of the potential number of students within a given age group is problematic. A recent study shows the following racial group participation rates: 16.3% of those students within the twenty to twenty-four age group are enrolled in the higher education sector; 59% of those students are white, 42% are Indian, 13% are colored, and 12% are black.70 A study of student drop-out rates in South African higher education, based on enrollments in 2000, determined that about 30% of students dropped out in their first year of university; a further 20% dropped out in their second and third years of study.7 1 Of the 50% who remained studying, less than half (22%) graduated within the minimum time period for the degree.7 By the end of 2004, that is, five years after entering 67. S. AFR. L. DEANS' Ass'N, REVIEW OF THE LLB DEGREE 3-4 (2005). 68. NationalSurvey, supra note 1, at 6. 69. L. Soc'Y S. AFR., LEGAL EDUCATION AND DEVELOPMENT STATISTICS 64 (2008). 70. S. AFR. MINISTERIAL COMM., REP. ON TRANSFORMATION AND SOCIAL COHESION AND THE ELIMINATION OF RACIAL DISCRIMINATION IN PUBLIC HIGHER EDUCATION INSTITUTIONS (2008), executive summary available at

http://www.mg.co.za/uploads/2009/04/30/executive-summary.pdf 71. Scott et al., supra note 1, at 13. 72. Moeketsi Letseka & Mignonne Breier, Student Poverty in Higher Education: The Impact of Higher Education Dropout on Poverty, in EDUCATION AND POVERTY REDUCTION COHERENCE 83-101

STRATEGIES: ISSUES

OF POLICY

(2008), available at http://www.hsrc.ac.za/research/output/outputDocuments/5514_LetsekaStud entpovertyinhighereducation.pdf.

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university, only 30% of the total first-time entering students had graduated; a further 8% graduated after an additional year. Fifty-six percent of the initial students had left their original institutions without graduating, and 14% were still in the system. 73 In this year cohort, 65% of African students dropped out and only 24% graduated, while 41% of white students dropped out and 48% graduated. 74 In terms of success rates, African students continue to under-perform in comparison to white students.75 Thus, in 2006, the success rate of African students was 65%, while that of white students was 77%.76 Of particular concern for legal education is the following data which documents the success rate of graduates in four year professional undergraduate degrees in 2004, according to discipline: Graduation within 5 years

Still Registered after 5 years

Business/Management

60%

Engineering

54%

19%

Languages

42%

13%

Law

31%

15%7

Fourteen percent of black law students graduated in the minimum period for the degree while 33% of white students completed their LLB degree in four years. What is apparent about law students is that 46% of law students are taking at least one year more than the stipulated minimum time period for the LLB degree, which has significant cost implications for students from poor backgrounds.7 ' Historical inequalities in students' educational backgrounds play an important role in their success

73. 74. 75. 76. 77. 78.

Scott et al., supra note 1, at 14. Id. at 12. Id. at 16. Id. at 17. Id. at 16. Scott et al., supra note 1, at 16.

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rates at university.7 9 In addition, black students usually are not mother-tongue speakers of English or Afrikaans which are the two languages of instruction in higher education.80 This factor, together with continuing poverty that aligns closely with race, and funding difficulties for black students at university, tends to reinforce a cycle of disadvantage which perpetuates the racial inequalities within the legal professions. 8 ' VII. LOOKING TOWARD THE FUTURE

Legal professionals complain endlessly about the quality of law graduates, particularly their lack of skills and most notably their deficient writing. 82 Legal academics are disillusioned with the poor quality of students entering university from a failing secondary school systems. 83 The Higher Education Monitor of 2007 specifically recommended that to address the disparities in the socio-economic and educational backgrounds of the diverse student intake "equity-related educational strategies" will become a key element in contributing to development. 84 Improving formal access to universities without enhancing epistemological access, which in this context implies "more than introducing students to a set of a-cultural, a-social skills and strategies to cope with academic learning and its products," will not be sufficient to improve the success and retention rate of students in higher education.85 Unless students are explicitly made aware of the conventions and rules of what counts as academic knowledge, including the use of appropriate academic language, the current inequities will no doubt persist.8 6 The 2008 Ministerial Report on Transformation quotes a black student at one university: "[1]anguage is a major stumbling block, especially at undergraduate level. Basic language skills 79. 80. 81. 82.

Id. at 23. S. AFR. MINISTERIAL COMM., supra note 70, at 17. Letseka & Breier, supra note 72, at 90. See generally De Rebus, The Poor Quality ofLaw Graduates, S. AFR. ATT'YS J. (2007). 83. S. AFR. L. DEANS' ASS'N, supra note 67, at 6. 84. Scott et al., supra note 1, at 50. 85. Chrissie Boughey, Epistemological Access to the University: An Alternative Perspective, 19 S. AFR. J. HIGHER EDUC. 639, 638-50 (2005). 86. Id. at 638.

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A History of the Racial Disparities

are of critical importance if students want to make an impact and not just pass."8 The Ministerial Commission concludes: The lack of epistemological transformation is further reflected in the role of language in higher education. The observation that "the language issue is at the heart of the education crisis in our society" may be an overstatement, as there are many other factors that contribute to the education crisis. But the language issue is undoubtedly one of the main obstacles to academic success for the majority of black students. While law faculties are attempting to address pressing teaching issues such as academic literacy, basic numeracy skills and oral advocacy skills, the funding of higher education and particularly of legal education has been reduced. 89 External drivers such as globalization, pressures to increase access and serious financial constraints in higher education make the task of providing high quality legal education even more difficult. 9 0 In the absence of any empirical evidence to substantiate whether progress is being made with interventions to address poor student pass rates and serious writing deficiencies, academics are caught between the contesting demands of the profession, who wish to have "practice-ready" lawyers emerge from universities, and the real pedagogical challenges faced in lecture rooms every day. As a response to this situation, the South African Law Deans' Association ("SALDA") has recently approached the Council for Higher Education ("CHE"), a statutory body responsible for quality assurance in higher education and training established to advise the Minister of Education on all higher education policy issues, to undertake empirical research to present a critical appraisal of legal education in South Africa.91 87. S. AFR. MINISTERIAL COMM., supra note 70, at 65. 88. Id. at 101. 89. National Higher Education Funding Formula (2004), http://www.pmg.org.za/minutes/20040823-higher-education-fundingformula-department-briefing. 90. Susan Scott, Knowledge Production and Transmission in a Changing Society: Challenges Facing Law Lecturers in a Distance Education Environment in South Africa, 20 S. AFR. J. HIGHER EDUC. 738, 731-43 (2006). 91. Council on Higher Education, http://www.che.ac.za/about/ (last

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The anticipation of legal educators is that we will gain insights, informed by the data gathered in the study, to re-shape legal education. It is timely that after 15 years of democracy, the APPEAL Conference was held in South Africa in 2009, at a juncture in this country's history of legal education when curriculum change, a re-visioning of legal writing pedagogy and a review of teaching and learning strategies in law faculties is long overdue.

visited Jul. 6, 2009).

TEACHING LEGAL WRITING TO A LARGE UNDERGRADUATE CLASS: A TANZANIAN EXPERIENCE TUSHAR KANTI SAHA*

I. INTRODUCTION

...................................................

II. LEGAL WRITING AND ITS SIGNIFICANCE IN LEGAL PRACTICE................. 20

A. PersuasiveWriting.. .................................... B. Legal Drafting.................................. III. MY ASSIGNMENT IN UNIVERSITY OF DAR ES SALAAM ...............

22 24 25

A. Designing the Curricula,CourseDescription,and Objectives ........................................... 26 B. Classroom Decorum ............................ 28 C. ContractDraftingExercise. ................... .......... 28 IV. MY LEARNING, UNLEARNING AND NEW LESSON..

....................

I. INTRODUCTION

Legal writing in a classroom setting presents many practical challenges because it involves the art, skill and technique of impacting young, impressionable minds. Designing a new course offering instruction in legal writing to a large undergraduate class with nearly 400 students in the time frame of one semester is a daunting task. Teaching in a way that * The author holds an LLB from the University of London. He was called to the Bar of England in 1979 and met Lord Denning for a privileged discussion while studying in Lincoln's Inn. On his return to India, he practiced at the High Court at Calcutta until 1986 and obtained an LLM and a PhD from the University of Calcutta. Since then, he has taught in five universities and institutes in India and four in Africa and has written six books, the newest of which is titled Constitution of Lesotho - A Text of ComparativeResearch Study.

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accommodates the sheer size of the classroom requires innovation and creativity. The audience entering the room competes for better and strategically important space. To reach out to the last person in the last bench is a near impossibility. There is often audio equipment in classroom, but frequent power outages have a way of turning a lecture into a darkroom exercise, pushing the lecture into modes of a comma, a semicolon and even a full stop. Even more challenging is the size of the class itself. As the size of the class grows larger, the possibility of drifting away from the mainframe of communicative channel becomes greater, and sometimes a cozy corner segregates into a sleepers' class, which is disconcerting. One cannot carry on simply by ignoring the snoring category of students. In the tropical climate sweeping a coastal town like Dar es Salaam, the sweltering weather is another challenge, especially when classrooms are not air-conditioned. With the wherewithal in one's disposal, one has to perform his or her best to meet the students' high expectations and satisfy their inquisitive minds eager to learn a little more day after day. This essay seeks to tell the story of an experience in teaching legal writing in a large undergraduate class at an African university. The purpose of this essay is to share this unique experience with peers so that they may benefit from the exercise as both a teaching and learning process for opportunistic use and accommodation. This essay begins with an introduction to the subject of legal writing and the importance of its application in the legal profession. Next, the essay describes the author's task and challenges in designing a syllabus suitable to the local conditions followed by a discussion of the real life teaching of legal writing in a large class in the University of Dar es Salaam ("UDSM"). Finally, this essay concludes with the invaluable lessons the writer has learned from this experience. II. LEGAL WRITING AND ITS SIGNIFICANCE IN LEGAL PRACTICE

Legal writing is as old as the idea of law itself. Writings of legal nature have been found in edicts inscribed in stones and other durable and non-durable media such as walls, columns, papyrus, earthen clay-pieces, parchment, leather, paper and even wax tablets. They have been found in different countries and in many different languages. Legal writings can be

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classified into two broad categories: professional legal writing and academic legal writing. Professional legal writing ranges from official correspondence of a legal nature to the practicing lawyer's drafting and legal submissions, to judgments or opinions from the bench. Academic legal writing includes scholarly articles for law journals, journalistic articles for newspapers or dissertations or theses for academic awards. Each branch has its own requirements and techniques, and they obviously vary according to forum or floor of discussion. Writing is an art, and the art of legal writing requires technical skill and knowledge. To master this art, one needs to be equipped intellectually and trained in the legal tradition. This tradition is undergoing constant change based upon the mores currently espoused by the legal profession and creative innovation that becomes accepted practice through continuous and reoccurring usage. Such technical training is key to successful legal writing. Personal style is more suitable for academic writing, which must be different for each generation. Writing in clear, easy and intelligible language has caught the imagination of the new generation of legal writers. There is a growing trend of drafting legal writings in plain language and eliminating legalese as far as practicable to make things easier and simpler.' The aim of plain legal English is to make legal writing immediately intelligible to lay persons. According to Gail Dystra: Plain language is language simplified to make it readily understandable by the average person. It is language stripped of unnecessary complexity, but not stripped of style. It is perhaps language at the lowest common denominator. It is reader-focused language. Clarified or simplified language on the other hand is "language that has been worked on to improve its understandability, but retains technical terms (terms of art), if necessary. It can rely on the assumption of commonly held knowledge of how the legal system or government operates in order to understand the language." 2 1. See WHAT

DAVID KELLY, PLAIN LANGUAGE ASSOCIATION INTERNATIONAL, is PLAIN LANGUAGE?,

http://www.plainlanguagenetwork.org/Legal/lawdefn.html (last visited on Jul. 7, 2009). 2. Pamela Dinsmore & Gail Dykstra, Readability and Legal Writing: A Preliminary List of CLIC's Legal Information Secretariat Holdings, 1985

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Plain language, when used in the legal context, can be understood at first reading by the client, lawyer and the judge with equal ease. This is possible by writing a document in a legally binding form, weaving the whole matter in a logically organized manner using an economy of concise, unambiguous words and standard grammar and punctuation. All the while, the writer must keep in mind the reader's level of literacy and state of mind. The tone and style of the document stay professional while the content flows easily and smoothly for all to follow. Understanding how to write using plain, intelligible language is merely one facet of the art of legal writing. Applying this style into a persuasive argument or legal document is the next step toward a mastery of legal writing. A. Persuasive Writing Arguments are won by persuasion. The lawyer must persuade his or her audience, in a cogent and coherent manner, of the rationality of a point in focus. Reasoning and analogy must be made in a convincing manner by arguing a point's reasonableness and correctness. Persuasive arguments appear in appellate briefs, in-trial advocacy and even negotiation letters written on a client's behalf. But whether written or oral, a persuasive argument must be centered on the issue and sharply focused with the spotlight of reasonableness. In 1774, in Donaldson v. Beckett3 , Lord Camden delivered an exemplary persuasive argument worth review by those attempting to learn the art of persuasive legal writing. In that case, the House of Lords succumbed to Lord Camden's eloquent argument that, upon publication, a book should become public property at common law. In other words, there should not be any claim for copyright. He argued: [I]f there be any thing in the world common to all mankind, science and learning are in their nature publicijuris,and they ought to be as free and general as air or water. They forget their Creator, as well as their fellow creatures, who wish to monopolize his noblest gifts and greatest benefits. Why did we enter into society at all, but to enlighten one another's CAN. LEGAL INFO. COUNCIL 1, 2-6.

3. Donaldson v. Beckett, 4 Burr 2408 (1774).

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minds, and improve our faculties, for the common welfare of the species? Those great men, those favored mortals, those sublime spirits, who share that ray of divinity which we call genius, are entrusted by Providence with the delegated power of imparting to their fellow-creatures that instruction which heaven meant for universal benefit; they must not be niggards to the world, or hoard up for themselves the common stock. Glory is the reward of science, and those who deserve it, scorn all meaner views: I speak not of scribblers for bread, who tease the press with their wretched productions; fourteen years is too long a privilege for their perishable trash. It was not for gain, that Bacon, Newton, Milton, Locke, instructed and delighted the world; it would be unworthy such men to traffic with a dirty bookseller for so much a sheet of a letter press. When the bookseller offered Milton five pound for his Paradise Lost, he did not reject it, and commit his poem to the flames, nor did he accept the miserable pittance as the reward of his labour; he knew that the real price of his work was immortality, and that posterity would pay it.4 If copyright were confirmed as perpetual, Camden said: "[a]ll our learning will be locked up in the hands of the Tonsons and the Lintons of the age, who will set what price upon it their avarice chuses [sic] to demand, till the public become as much their slaves, as their own hackney compilers are . . .. [E]very valuable author will be as much

monopolized by them as Shakespeare is at present."' In this powerful speech, Lord Camden demonstrates how an effective persuasive argument must be founded on reasonableness as he analogizes science and learning to air and water - an analogy carefully crafted to argue that knowledge should remain in public domain, free to the people. Lord Camden pleaded for the universality to share from each other's intellectual stock by focusing on and arguing for the common welfare of society, a point well within the bounds of rationality. 4. WILLIAM COBBETT, COBBETT'S PARLIAMENTARY HISTORY OF ENGLAND FROM THE NORMAN CONQUEST IN 1066 TO THE YEAR 1803 (1806available summary 1820), http://www.copyrighthistory.com/donaldson.html. 5. Id.

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Although this case is no longer good law, there is a lot to learn from the persuasive techniques employed by Lord Camden in this argument. Improving one's way in crafting and drafting a persuasive argument can go a long distance in achieving the goal of winning a case. B. Legal Drafting The drafting of legal documents is yet another type of legal writing. Legal drafting is the writing technique employed to create binding, legal text, such as statutes, rules and regulations. Legal drafting is also required for contracts, wills and trusts and public legal documents, such as notices and instructions. Unlike persuasive legal writing, legal drafting requires no legal authority citation and generally is written without a stylized voice. Guides are available to aid a lawyer in preparing these documents, but a unique application of the "form" to the facts of the situation often is required and more appropriate for your client's needs. Therefore, it is important for law students to hone their legal drafting skills rather than rely on ill-fitted guides. Poor drafting can lead to unnecessary litigation and otherwise injure the interests of a client. Legal professionals spend many hours of their workday performing legal research, writing legal correspondence, and preparing legal documents and notes. In the legal profession, specialized forms of written communication are required. Legal writing is obviously technical in nature, as it requires a masterly skill in a professional sphere mostly dominated by the legislators, lawyers and judges. Further, legal writing places heavy reliance on authority by requiring legal analysis with balanced judgment, an open mind, and decisive opinion about the merit of a case in hand. Writing is the medium through which a lawyer is required to express his analytical dissection of an issue seeking to persuade others on his clients' behalf. With such a large portion of legal practice focusing on legal research and writing, efficient researching skills and the ability to write clearly and concisely are keys to a successful career as a legal professional.

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III. MY ASSIGNMENT IN UNIVERSITY OF DAR ES SALAAM

It is with an understanding of how important legal writing can be to a successful legal career that I accepted a position as Professor of Legal Writing and Drafting at UDSM in February 2006. The law faculty of the UDSM boasts nearly 50 years of standing, once considered the best in East Africa thanks to the contributions of early pioneers. Lord Denning 6 , Master of the Rolls, whom Lord Chief Justice Bingham described as "the best known and best loved English Judge in our history," was instrumental in the creation of the faculty in a distant location in a fledgling center of higher education. The library was well stocked in the beginning, and its huge collection of old, archival materials deserves the nostalgic reminiscence of the past glory. However, the current stock of law books is in shameful condition. There are no new books in the law section of the library. The Departmental Library was physically inaccessible because of dumping on the floor. Not a single copy of any major text book on any law subject of well known authors can be found. A few bound, photocopied text books can be sighted in the protected shelves beyond the counter for reading without borrowing, but these books are out of bounds for students who are arrowed with the needle of suspicion. They are too precious to take any risk of losing, so they remain untouchable. Landing mid-semester, I took the assignment to back up the faculty of law for an initial period of two years, but that period was cut short by the twin blow I suffered from Malaria and Typhoid. I was tasked with the job of designing a new syllabus for the legal writing course that would be suited to the students who had no experience with the practical nature of a legal job. As budding lawyers, they would be called upon to perfect their skills through day to day practice, so my task was to provide the students with a basic, working knowledge of effective legal writing.

6. See EDMUND HEWARD, LORD DENNING: A BIOGRAPHY (2d ed. 1997) for an interesting, insightful view of this great, colorful, legendary judge who himself was a giant in writing in plain legal English as is evidenced by his series of five books: Discipline of Law (1979), Due Process of Law (1980), What's Next in the Law (1982), Landmarks in the Law (1984) and The Closing Chapter (1983).

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A. Designingthe Curricula,Course Description,and Objectives Although the art of legal writing and drafting has been practiced for as long as there have been laws and lawyers, it is only recently that the subject has been recognized as worthy of serious study. Traditional training methods, which have been handed down from generation to generation, have not served the profession well. Legal writing is often accused of suffering from a lack of clarity owing to its lengthy intricate construction and antiquated forms of expression.7 Clarity demands precision pointing to the dimension expressing the writing's power while concision requires a dimension reflecting the writing's informational efficiency in relation to the linguistic sign. People read legal writing not because they want to, but because they have to. Lawyers need to learn to write in good, clear English so that their clients understand. In any case, lawyers speak the language of law and think, translate and interpret the law in the language of the court. Therefore, legal jargon is not altogether avoidable, and lawyers need to master the art of written and oral advocacy to the level of perfection. Legal excellence has always been the product of rigorous training followed by hands-on practice in day to day experiences. A budding lawyer is not only to be equipped intellectually with sufficient legal knowledge but must also be groomed with the skill of writing and drafting by doing exercises in regular continuity. Nevertheless, the importance of the theoretical underpinnings to conceptualize the core legal issues and sharpen the analytical tools can hardly be over-emphasized. Accordingly, I took several months reading from the best practices and mining through internet sources on legal writing. I had a difficult time identifying, collecting and reading materials appropriate for this course considering the local conditions. However, I designed the legal writing course's content and curricula taking into account the ingenuity and exuberance of all available talents. I identified and suggested a number of text books, notably Robin Wellford Slocum's Legal

7. GEORGE H. SUBCOMMITTEE

HATHAWAY,

PLAIN LANGUAGE ON

PLAIN

http://www.michbar.org/generalinfo/plainenglish/columns/133.html visited Jul. 17, 2009).

ENGLISH LAWS,

(last

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A Tanzanian Experience

Reasoning, Writing, and Persuasive Argument (2006). Then, I made an eclectic list of topics and designed a syllabus, keeping in mind the limited resources and other constraints faced by a university in a developing country in Africa. The subject contents and curricula were designed and tailormade by taking into account the ingenuity and exuberance of the available talents and finding expression and satisfaction in the resources at hand. The current requirements for a young lawyer will skirt around writing legal opinion, drafting notices, plaints, complaints and correspondences. Since the need for other legal documents outside the arena of court rooms is great, one also needs to know how to draw up a contract entrenching the contractual terms, as well as drafting deeds and documents relating to leases and mortgages. Thus, I designed a course to impart the basic knowledge and skill in the form of lectures followed by exercises administered and supervised by the instructor under his close scrutiny. The course was meant to be a power-packed capsulation of a range of practical and useful tools for purveying lessons on writing and drafting. I had 39 lectures in mind and set on a voyage to cover different styles of drafting notices for different purposes, drawing up demand letters, writing opinions and judgments, drafting a simple contract and so on. I set the following course objectives: (1) to impart basic knowledge and develop skill in the art of legal writing; (2) to exercise the basic knowledge in practical terms by hands-on practice; (3) to provide linguistic skill in the art of pleading and advocacy; (4) to train in the skill of oral presentation and articulation of arguments; and (5) to generate confidence in drafting documents in various formats with individualistic style. The pedagogical principles and tools I chose to meet these objectives inter alia included: (1) learning-by-doing; (2) visiting and observing the skills in practice in real life practitioners' chambers; (3) hands-on, practical exercises and assignments; (4) exchange of ideas in polishing and refining legal writing drafts; (5) interaction with the experienced draftsmen; and (6) role play. With my curricula and course objectives set, I began my teaching assignment in the ensuing semester in 2006.

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B. Classroom Decorum The building housing the classrooms consisted of two very large halls with offices on each side. Microphones were available but would misbehave sometimes by cross-connection between two adjoining halls, making lectures inter-disciplinary. The number of students in the class was nearly 400. Students gathered on time, but waited outside for the classroom to be vacated by the preoccupants, and jostled for first entry to be front ranking among the listeners. Once seated in many rows, the 400 souls waited with curious minds receptive of a new kind of knowledge in legal writing. They knew the importance of the subject, which will not only be for the written examination but also for its use in the entire professional life and career of the lawyer in the making. My lectures were scheduled for slots from six to seven in the evening, three days a week. After a long walk from the office, when the lecture is ready for delivery, suddenly, there would be a power outage, leaving us totally powerless. One cannot continue, even at the top of one's voice, in total darkness when you cannot see each other. Once the power would return after a breather, you had already lost your train of thought. My methodology for coping with the problems of a large classroom was to create, in a sense, a public lecture series. Legal writing was not possible in such a big gathering, and it was indeed more of a legal talking class rather than legal writing class. It was impossible to give any individual attention or to monitor and observe how things are being transmitted to the young curious minds. Because of challenges like this, I ultimately skipped the idea of role play and opted for pictorials to clarify some of the essential features of contract drafting. Let me illustrate with the lesson on drafting a contract. C. ContractDraftingExercise To give students a fair idea about the general principles of contract, I introduced an innovative method of teaching using pictorials. As the Chinese proverb goes; a picture tells a story. My innovation was to state the law in a picture so that it was colorful, crisp, clear and magnetically attractive, peeking the interest of the curious minds.

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Contracts are invaluable tools that help both parties to understand the terms of the agreement and individual obligations. Hence, emphasis was given to the fact that clarity is the sine qua non of drafting a document of contractual nature. To permanently impress and imprint the concept of contract in the minds of the students, I depicted a contract in the form of a pair of scissors, as represented by the diagram below.

Offer Party 1

Meeting of the Minds/ Consensus Ad Idem

Intention

Consideration/

Party 2

Justa Causa

Acceptance

The scissors have two blades representing offer and acceptance. The blades are supported by consideration orjusta causa in the middle with a tightening screw. By pressing the two blades together to cut the piece of paper, representing the contract, the parties express their intent to contract, and when the two blades meet, they create a consensus ad idem or a meeting of the minds. This picture was further supplemented by the actual production and display of a pair of scissors and a piece of paper in the classroom. When the scissors were employed and the paper was cut, the class broke into roars of laughter. The classroom was lively, and the people of the sleeping order woke up to a wonderland. Through this simple pictorial, I was able to instruct my class on the process of contract drafting. By beginning with the handles of the scissors being pressed together, students learned the importance of making the intentions, requirements and expectations of the parties clear at the beginning of negotiations.

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In drafting contracts, specific attention must be drawn to items like price, quality, quantity, place and time of delivery, and methods of payment. Students also learned that it is necessary to take care in providing for a remedy and jurisdictional sphere of litigation within the contract in case of a breach by either party. The convenience of contract templates to ensure the intentions and obligations of the parties are properly recorded was also demonstrated. Through the sheer simplicity of this exercise, students were encouraged to avoid complicated verbiage. One of the biggest impediments to clarity and simplicity in legal drafting is the use of legalese. Linguists consider legalese as a distinctive dialect.8 Clearly, legalese has not evolved in step with modern English. Whereas the English language is constantly evolving with daily usage, legal language has remained largely cocooned in a conservative shell and somewhat static. The attack against legalese has been mounted on the charges of outdated grammar and construction sentence structure.' Legalese is viewed as wordy, turgid and impersonal. Legalese is an archaic vocabulary based on jargon and excessive use of technical terms not intelligible to the lay person. Legalese suffer from a dependency on French and Latin. It is common practice for the parties to use legalese when drafting contracts. However, this may make the obligations and terms of the contract unclear. Therefore, the necessity of keeping legal drafts simple and easy to understand was constantly emphasized in my class. A contract should be drafted so that each party knows exactly what is expected of him. Thus, if there are any words that could be misconstrued, or any terms that are ambiguous, defining them with clarity within the contract is a task to be done carefully. When drafting a contract, clarifying the terms and duties should be the ultimate goal of the drafter.

FROM "REVENUE 8. See generally WILLIAM LUTZ, DOUBLESPEAK: ENHANCEMENT" TO "TERMINAL LIVING": How GOVERNMENT, BUSINESS, ADVERTISERS, AND OTHERS USE LANGUAGE TO DECEIVE YOU (1989).

9. See Norman R. Helwig, The Plain English Movement-An Attack on Legalese, 8 Colo. L. Rev. 2372, 2372-81 (1979); see also Robert D. Hughes, Some Plain Talk About Plain ... Language 33 REV. 206, 206-11 (1978).

N.Y. CRIM. BAR. Ass'N

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I have used similar pictures for all the subjects that I teach, be it Constitutional Law, Intellectual Property Law or any other subject. Whatever the subject and whatever the picture, the purpose is to encourage efficient drafting through an understanding of the fundamental legal issues of the subject. With contract drafting, regurgitating a model contract was one teaching tool option, but that option was not practical for a large classroom exercise. Essentially, the tool has to be improvised and hand-made to give students a fair idea of how to accomplish efficient drafting. These types of pictorial exercises cannot be perfect or all inclusive with respect to complicated legal issues, but, as with this simple contract exercise, pictorials can be used to convey the fundamentals necessary for effective legal drafting. IV. MY LEARNING, UNLEARNING AND NEw LESSON In reflecting on my experiences teaching a large undergraduate classroom in a university with limited resources, I have learned that the wiser choice is not to be so ambitious with the course, thinking that one has to touch the sky. Limiting the course to a palm tree height should be enough; after all, class room writing is not the end of the story. In other words, the syllabus on legal writing need not be so bulky as to embrace too many areas. A legal writing course should provide some essential tools that students can use and sharpen in the course of their career development. In a developing world, no one is in a hurry, so going at a break neck speed kills the spirit before the letters are learned. I have found that it is a good thing to unlearn the conventional approach to a certain degree but not in its entirety. Introduction and injection of newer ideas in small doses makes things more interesting and exciting, thus encouraging innovation and excellence.

DEVELOPMENTAL LEARNING THEORY AND THE AMERICAN LAW SCHOOL CURRICULUM STEVEN

I. INTRODUCTION

D. SCHWINN*

..................................................

II. MORAL AND INTELLECTUAL DEVELOPMENT

........................

III. THE FIRST-YEAR CURRICULUM AND OUR STUDENTS ................

IV. ACTUAL LEGAL WORK IN THE FIRST YEAR

.........................

A. First-YearLegal Theory and Practice ...................... 45 B. First-Year ConstitutionalLaw and Appellate Advocacy................ 46 C. First-Semester Case Work .................... .......... 48 V. CONCLUSION

...................................................

I. INTRODUCTION

Incoming students enter American law schools by and large with little knowledge of the law or how to "think like a lawyer." Our typical American first-year curriculum is therefore quite sensibly tailored to deliver them the law and to develop their legal thinking in as efficient and effective a way possible. Thus, the typical curriculum is characterized by heavily edited appellate court opinions, scrubbed of unnecessary and meddling facts, to allow students to focus more narrowly on the law. It also includes large classes conducted through the Socratic * Associate Professor of Law, The John Marshall Law School in Chicago. I would like to thank the editorial staff of the John Marshall Law Journal from Atlanta's John Marshall Law School for their outstanding editorial work on this piece. All errors, of course, are my own. I presented an earlier version of this article at the International Future of Legal Education Conference in February 2008 at the Georgia State University College of Law.

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Method, an intense dialogue between a student and professor that allows the professor to push the student to a deeper level of understanding. The first year concludes with a final exam based on a hypothetical fact scenario that allows students to demonstrate their new-found knowledge and analytical skills by applying concrete law and principles to static, predetermined facts in a carefully controlled exercise. In short, the typical first-year curriculum is precisely tailored to help those with little knowledge of the law quickly learn the law. While the central premise-that our incoming students by and large have little knowledge of the law-is true, it is also true that our students increasingly come to us with mature intellectual and moral reasoning capabilities in other areas of their lives. For example, more and more students come to law school with professional experience, graduate degrees, significant life experiences, and families and other responsibilities in which they have honed more advanced reasoning skills. Even students who come to law school right out of college have relatively mature reasoning capabilities. In other words, even if our first-year students have not yet learned how to reason about the law, they have learned how to reason about other complex subjects, including those requiring a moral aptitude. Even if they have not yet learned that the law is full of ambiguities and indeterminacies, they have dealt with ambiguities and indeterminacies in other areas of their lives. And even if they have not yet seen how law is made-with lawyers as active agents in the law, not passive recipients of the law-they certainly have seen how knowledge in other subjects is so often created, not merely given. Our incoming students might apply these more mature reasoning capabilities to the law, but we do not let them. By focusing first on our students' lack of knowledge of the law, the typical first-year curriculum neglects their more mature reasoning capabilities in areas outside the law. This neglect comes with an opportunity cost-the cost of failing to build upon what our students bring to law school. But worse, it also yields tangible harm by regressing our students' intellectual and moral development before helping them re-progress later in law school. This essay begins with a review of some of the intellectual and moral developmental theories as they relate to legal pedagogy. The essay then examines the typical first-year

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curriculum and attempts to place it in the context of those theories. I argue here that the typical first-year curriculum moves students backward before it moves them forward in the intellectual and moral development progression-that it regresses them before it progresses them and that this is not just a waste of time but also positively destructive. Finally, I offer an alternative or complementary approach to the typical firstyear curriculum-actual legal work in the first year-that is designed to progress, not regress, students as intellectual and moral thinkers. II. MORAL AND INTELLECTUAL DEVELOPMENT

Perhaps the best known developmental theorists are Jean Piaget and Lawrence Kohlberg.' Both use a "stages of growth" model to describe the intellectual and moral development of individuals: just as our physical bodies develop in stages, so too our intellectual capabilities and moral reasoning develop in stages.2

Piaget traced cognitive growth from concrete thinking to abstract thinking in four stages. 3 He claimed that the two

1. Piaget's and Kohlberg's (and other developmental theorists') work has been described in a variety of secondary sources, many of which I rely upon in my brief overview here. See, e.g., Paul T. Wangerin, Objective, Multiplistic, and Relative Truth in Developmental Psychology and Legal Education, 62 TUL. L. REV. 1237 (1988); Walter H. Bennett, Making Moral Lawyers: A Modest Proposal, 36 CATH. U. L. REv. 45 (1986); Steven Hartwell, Promoting Moral Development Through Experiential Teaching, 1 CLINICAL L. REV. 505 (1995); Susan Daicoff, (Oxymoron?) Ethical Decisionmaking by Attorneys: An Empirical Study, 48 FLA. L. REv. 197 (1996); Joseph M. Williams, On the Maturing of Legal Writers: Two Models of Growth and Development, 1 J. LEGAL WRITING INST. 1 (1991). Different authors describe and categorize the stages in each theory in slightly different ways. I describe them here at only their most rough and abstract level. 2. Neither Piaget nor Kohlberg is uncontroversial. Particularly, Kohlberg's methodology has been subject to scrutiny because his studies included only boys, not girls. See generally Hartwell, supra note 1, at 51222 (summarizing the strains of criticism of Kohlberg's theory and methodology). 3. Williams, supra note 1, at 3-4; see also Wangerin, supra note 1, at 1243-44, 1274-81.

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earliest stages, the sensory-motor and pre-operational stages, occur early in life and move quickly.' The sensor-motor phase is characterized by "think[ing] in a sensorimotor fashion, that is ... thinking is directly linked to immediate sensory experience."' The pre-operational stage "principally involves increasing ability to use and to form symbols," including, most importantly, lanpuage. 6 The later two stages run longer and are more complex. Thus, the third stage, concrete-operational, runs from about age six to middle adolescence, and the fourth stage, operational, takes hold thereafter.8 Professor Williams summarizes these stages in this way: [T]he difference between concrete and formal operational thinking turns on the ability to manipulate abstractions derived from concrete experience. Most of Piaget's research involved scientific concepts, but he argued that the general principles held for all kinds of thinking: Can the person juggle multiple hypothetical variables and then combine and recombine them to predict different outcomes? Can the person project probabilities? Can the person reason from the intersection of logical sets and from empty sets? 9 The broader point is that Piaget described intellectual growth in universal, predictable stages. "All children, Piaget concluded, go through each of these stages. More importantly, they all go through them in the same sequence."' 0 Like Piaget, Kohlberg described intellectual growth in stages, but Kohlberg focused specifically on the development of moral reasoning." Kohlberg argued that we develop in roughly three stages. Kohlberg's first stage, the pre-conventional stage, reflects a crude moral reasoning that focuses only on the immediate, short-term consequences of one's behavior.' PreWilliams, supra note 1, at 3-4. 5. Wangerin, supra note 1, at 1243. 6. Id. 4.

7. Id.

8. Id. 9. Id. 10. Wangerin, supra note 1, at 1244. 11. Williams, supra note 1, at 5-6; see also Wangerin, supra note 1, at 1274-81. 12. Williams, supra note 1, at 5-6. 13. Id.

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conventional moral reasoning, then, is concerned only with immediate punishments and rewards.14 The second stage, the conventional stage, reflects broader concern for one's family, one's community and even one's nation." The broader values in these groups are the driving forces behind one's moral decision-making.' 6 The final stage, post-conventional, reflects more abstract values that transcend any particular community.1 7 Moral values in this final stage move toward the universal.' In the spirit of Piaget and Kohlberg-and roughly correlating to their stages-William Perry has identified nine stages of development, which for our broader purpose, we can collapse into three.1 9 Perry's system is particularly attractive to college curriculum planners because it focuses on the growth of college students. It is useful here because it also closely describes the development of first-year law students. Perry's first stage, dualism, is characterized by a student's desire to learn definitive, objective and concrete right and wrong answers from an authority. 20 Dualism helps explain, for example, why so many first-year students rely on commercial outlines (because they provide concrete, definitive statements of the law). It also helps explain why many of them unduly focus on niceties and form over substance and analysis in their writing (because form often has an objectively correct approach, where analysis is often indeterminate). And it helps explain why they often become so frustrated with the professors' mantra "it depends" (because it represents indeterminacy). In short, the dualist aims to get his or her arms around a subject so as to rest comfortably in the belief that he or she "knows" it. But in fact, Id. Id. Id. Williams, supra note 1, at 5-6. Id. 19. Perry described his nine-stage scheme in 14.

15. 16. 17. 18.

WILLIAM G. PERRY, FORMS OF INTELLECTUAL AND ETHICAL DEVELOPMENT IN THE COLLEGE YEARS

(1970). This very brief description collapses Perry's much richer system for the purpose of brevity and in order to highlight the features of Perry's system that are most relevant for my purposes here. This three-stage summary of Perry's nine-stage scheme follows Paul Wangerin's summary. Wangerin, supra note 1, at 1244-51; see also Williams, supra note 1, at 4-6. 20. Wangerin, supra note 1, at 1246-47.

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the dualist knows only form, formulae and formalism. By focusing primarily on the determinate, the dualist misses the bigger picture. The second stage, relativism or multiplicity, follows after the student learns that knowledge is not determinate, that there is not always a concrete right and wrong answer and that opinions on a question often differ even (or especially) among experts.21 At its highest stage, relativism is characterized by an acceptance of all views and complete deference to none: [The relativist] assumes that an answer can be called "right" only in the light of its context, and that contexts or "frames of reference" differ. He assumes that several interpretations of a poem, explanations of a historical development, or even theories of a class of events in physics may be legitimate "depending on how you look at it.". .. [H]e ... supposes that the [teacher] may be about to present three legitimate theories which can be examined for their internal coherence, their scope their fit with various data, their predictive power, etc.2 Relativism helps explain why students near the end of the first semester often relish opportunities to argue any side (or even both sides) of any debate, no matter how inconsequential. It may also help explain why some students who enroll in law school with firm moral commitments later become alienated: some of these students may feel that in their new-found relativism, they have lost their purpose in studying the law, while others who have successfully resisted relativism may find themselves sad and alone among relativists. Perry's final stage, reflective thinking or commitment, is characterized by an understanding that views are diverse and often diverge, but it is also characterized by a considered commitment to a particular view. 23 We sometimes see reflective thinking and commitment in thoughtful and balanced student papers in upper-level seminars or in good student law review notes, where students consider various positions and

21. Id. at 1248-50. 22. Id. at 1250 (PERRY, supra note 19, at 2 (describing sub-stages of

relativism)). 23. Id. at 1259-73 (describing sub-stages of commitment); see also Williams, supra note 1, at 4.

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then commit, for principled reasons, to one. We also often see commitment in well supervised student clinical work, where students elect a particular clinic because of their reflective commitments to the work of the clinic and where their own clinical work and further reflection often reinforce their initial commitment. Finally, we sometimes see commitment in students' post-graduate choices, when students are able to make reflective and principled decisions about their careers. III. THE FIRST-YEAR CURRICULUM AND OUR STUDENTS The traditional first-year curriculum is precisely tailored to take our incoming students from Perry's dualistic stage to a relativistic stage, tracking the first two steps in this sequence exactly.2 4 Against the backdrop of our students' stages of development, the first-year curriculum seems specifically designed to meet our students exactly where they are and to push them gently along in their development. We start by training students as dualists. For example, our early and exclusive focus on sanitized appellate opinions-where facts are fixed and determined law applies rotely and deductivelyreaches our dualists by suggesting that learning and practicing the law are merely exercises in syllogistic reasoning. Similarly, traditional essay exams reach our dualists by suggesting that there are objectively right and wrong ways of understanding and analyzing the law. (Multiple choice exams suggest this even more strongly.) Finally, in order to study first-year courses, we make available any number of study aides, most of which are designed to deliver the clear, objective law to our students in the most efficient manner possible. These defining features of the traditional first-year curriculum are classically dualistic: they teach our students that the law is about right and wrong in an objective, determinate world. Moreover, the traditional Socratic Method teaches our students that the law is outside of themselves-that it is created by others and given to them. The Socratic form thus suggests to students that the instructor, the casebook, the commercial materials-the experts, and not the students themselves-hold the keys to understanding the law. In the language of critical

24. See chart infra p. 41.

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and progressive educator Paulo Freire, students are merely passive and empty "containers" or "'receptacles' to be 'filled' by the teacher"-the expert law professor.2 5 The law itself is fixed and pre-existing in relation to our incoming students: while it was created, to be sure, by someone, it cannot be changed by our students. These features of the traditional Socratic Method buttress the dualistic nature of the early first semester by reinforcing the idea of a given, fixed and external law that is knowable in an objective way. First-year legal writing courses reinforce these other features of the curriculum in nurturing our students' dualism. The central feature of these courses is nearly always a well vetted simulation-a problem that the professor designed to meet particular educational objectives. However, in designing the problem, the professor by necessity traces every possible path between the facts and the law, defining every argument and mode of analysis to ensure that the problem meets the objectives without a hitch. We even have a term for such a well vetted problem: it "works." In these classes, where the subject itself is legal analysis and communication, a simulation-or a problem for which the professor by necessity already defined the modes of legal analysis-meets our dualists' needs by showing them that the subject is objective and determined and outside of themselves. But even as we nurture our students' dualism, we also nudge them along. As our students progress through the first semester, we teach them as relativists. We teach them legal argumentation and advocacy, and we show them how to manipulate arguments to favor either side of a dispute. In doctrinal courses, we teach them modes of legal and policy arguments, the corresponding counter-arguments and critiques of both. Through the Socratic Method, we often teach them that there is no single right answer for the professor (the students' primary authority on the law) and that each of the multiple potential answers is equally valid.2 6 In moot court competitions and legal writing courses, we often arbitrarily assign students a party and instruct them to argue zealously, without respect to

25. PAULO FREIRE, PEDAGOGY OF THE OPPRESSED 52-53 (Continuum 1995). 26. Thanks to student editor Greg Frayser for this insight.

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their moral commitments about the case. We sometimes even require them to change sides mid-course and urge them to abandon their moral commitments in favor of arguing zealously on behalf of their clients. In short, we nurture our relativists by teaching them to argue anything, to be "hired guns." The following chart summarizes this cognitive development of students in traditional first-year law courses: Moral and Cognitive Development in Law School: Stage of Development

Student Characteristics

What We Do in Law School

- Desire

for"Black-

Letter" Law Dualist

- Focus on Authority - Focus on Details, Format,

& Citation Timid - Enthusiasm for Arguing Either

Side of a Case: Relativist

"Hired Gun" - Enthusiasm for

Zealous Advocacy - Thoughtful,

Mature Reflective

- Act as "Agents"

Able to Deal with Indeterminacy

- Focus on

Determinate Law and Facts - Focus on Authority - Focus on Details

Intimidate

- Focus on

Hypotheticals - Teach Students to Argue Both

Sides

- Seminars and

Clinics - Introduce

Indeterminacies in Law, Policy and Practice

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Our traditional first-year curriculum works: our students' movement from dualism to relativism in the first semester is palpable. We see this in our students' language, in their questions and in their analysis. Early on, they seek "rules" and "holdings;" they often ask about the "black-letter law." As a second-semester student recently asked me in the hopelessly indeterminate first few weeks of my Constitutional Law class, "What are we supposed to be getting out of this? I mean: what are we supposed to be memorizing?" Later, we hear our students experiment with different arguments, taking opposing positions, poking holes in others' arguments and relishing the role of devil's advocate-often not out of any driving moral or even legal principle, but for its own sake. Thus, our transformation is complete: we have succeeded in moving our students from dualism to relativism. There is only one problem: our students started in law school further along the curve. Our students increasingly come to us with a vast array of significant life experiences. All have a college degree. More and more have completed graduate or professional school. Many have worked full-time and traveled before enrolling. Some even had fully successful careers before coming to law school. Many have families, own homes and have taken on significant financial responsibilities (like law school loans). Our entering students may be novices in the law, but they are by and large more mature thinkers in other areas of their lives. Using the developmental terms, they are more often advanced relativists and reflective thinkers than they are dualists. And they are capable of applying their more mature traits to their study of the law.2 7

27. The few available empirical studies seem to bear these conclusions out. Researchers seem to agree that law students "rely on formal rules and societal conventions more than other groups and may have exhibited a more homogeneous stage of moral development within the group than other groups." Moreover, law students do not seem to develop-and some claim that law students actually decline-from this conventional stage (in Kohlberg's system). Daicoff, supra note 1, at 207-08 (summarizing some of the conclusions based on empirical studies of law students' moral development, and concluding that they have resulted in "conflicting findings"); see also Hartwell, supra note 1, at 522-31 (describing Professor

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The traditional first-semester curriculum, with its emphasis on the move from dualism to relativism, thus regresses our students before it re-progresses them, or in other words, it breaks them down before it builds them back up. This is not merely duplicative and a waste of time; it is affirmatively harmful. By regressing our students and teaching them to be dualists, we alienate them from the law itself. By teaching them that the law is objective and determinate and that facts are fixed, we disempower them. We show them that they are passive recipients of the law and facts, not active agents in creating and developing the law and facts. In regressing our students, we also fail to paint an accurate picture of the practice of law and ill prepare them to be good attorneys. As practicing attorneys well know, the law is often indeterminate. It contains gaps and holes, and attorneys, clients, judges and others play an active role every day in constructing the law. They play an even more active role in construing the facts. But we teach our dualists that these concepts are fixed and that their job is merely to apply the law robotically to the facts and produce a conclusion. This regresses our students intellectually, presents an inaccurate picture of the practice of law and alienates students from the real business of attorneys: actively making their cases and thus making the law. Nudging our students on to a relativistic stage does nothing to temper these harms; instead, it amplifies them. Relativism leads to further alienation. We alienate a good number of those students who came to law school for principled reasons and with reflective moral commitments. These students either lose their reflective commitments (and thus forget why they came to law school in the first place) or find themselves alone among dualists and disenchanted with the experience. Relativism also reinforces the static view of law and facts that we give our dualistic students. Perhaps worst of all, this process of regression and reprogramming misses a significant opportunity to capitalize on our students' reflective capabilities in other areas of their lives and thus significantly enhance their education. Incoming

Hartwell's conclusion that students improved on the Kohlberg-based Defining Issues Test (the "DIT") after participating in "experientially taught professional responsibility courses").

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students know how to resolve competing interests, solve complicated problems and arrive at thoughtful, balanced and considered conclusions in important areas of their lives. We can and should build on these reflective capabilities (rather than crushing them) by showing our incoming students how to apply them in the law. If we can do this, our students can produce better quality work, more useful work and work that better reflects actual practice as early as their first semester (not the third year, or beyond). Moreover, if we can do this, we can begin to treat our adult, professional students with the dignity and respect that they deserve. The best way to achieve these complicated goals is to introduce actual legal work into the first-year curriculum. IV. ACTUAL LEGAL WORK IN THE FIRST YEAR Actual legal work in the first year based on a live case or problem may help avoid this regression and allow us to build upon students' intellectual and moral reasoning capabilities. Actual legal work, unlike the typical case studies in the first year, involves the necessarily indeterminate facts of a live client or actual problem. It involves evolving law (by its nature, because nearly any case or problem helps evolve the law). In addition, it involves faculty and other authorities that, while more experienced than the students in the law, are no more experts in the actual case or problem than the students themselves. Actual legal work in the first year thus re-situates students in relation to the law and to the faculty. Students become partners in their own education and in the case, not mere empty receptacles for information. It thus empowers students, rather than alienates them. Moreover, actual legal work in the first year demands that students draw upon their reflective capabilities. Students are faced with complicated and often indeterminate law drawn from a variety of sources. They must deal with difficult and inconsistent facts, and they must reflect upon and balance competing considerations to help their clients commit to a position, strategy or course of action. Actual legal work uniquely requires students to use their reflective capabilities; it naturally capitalizes upon them. The following is a discussion of three different ways I have tried to achieve these goals.

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A. First-YearLegal Theory and Practice My most comprehensive experience with actual legal work in the first year was based upon a second-semester course I taught (and co-taught) at the University of Maryland School of Law involving state constitutional issues, torts and civil procedure. 28 This six-credit course encompassed the required elective and the required legal research and writing courses. The classes were small, limited to 18 students. Students indicated a preference for the class in enrollment, and students were accepted based on a lottery. Each student worked on two problems: an actual police brutality claim and a separate law reform project. On the police brutality cases, students worked in three and four-person teams, engaging in anything from informal fact investigation to trial, depending on the case. Their work on various aspects of the cases showed them first-hand that law and facts are often indeterminate; client stories are rarely straightforward and nearly always complemented, supplemented or contradicted by others' stories, and the law rarely applies in a clear, straightforward way. The cases' inherent and broader legal and political contexts often complicated their work, adding factors beyond the mere facts and law that students had to consider in designing a case strategy. Finally, the students' collaborative work and their close work with supervising faculty and attorneys showed them how law is often constructed, not given, thus reinforcing the indeterminacy of the law. The featuresand the immediacy and importance of actual legal worksimply cannot be replicated in the study of edited appellate decisions or even in classroom simulations. On the law reform project, we worked collaboratively as a class in developing strategies and sharing research, but students submitted their own individual written work. Two of the three years the classes worked on the procedural and legal aspects of a state constitutional civil right to counsel (or "Civil Gideon"),

28. I am deeply indebted to my co-teacher, mentor, and inspiration for this work, Professor Michael Millemann of the University of Maryland School of Law. Our work on yet a different model, not described in this article, is detailed in Michael A. Millemann and Steven D. Schwinn, Teaching Legal Research and Writing with Actual Legal Work: Extending Clinical Education into the First Year, 12 CLINICAL L. REv. 441 (2006).

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and one year the class worked on state official immunities in the context of state constitutional tort claims. These issues were all in their nascent stages, and the students themselves worked up the legal theories. The law in these areas was indeterminate by definition, so the students were developing new legal theories and test cases in these areas. Thus the cases reinforced the indeterminate nature of law and required students to endeavor to make the law, not merely to apply it rotely. The faculty and cooperating counsel were truly partners, not authorities, as we were developing theories of our own even as we supervised our students' work. As a result, we valued students' participation and drew regularly on their ideas. Class discussions were an exercise in group reflective thinking: we shared ideas, balanced interests and committed to an approach. We, the faculty, dictated nothing but the barest outlines of the process-and only to ensure that we satisfied the basic learning objectives and lessons of the underlying course. Students in these courses consistently commented on the value of actual legal work in the first year-and the differences between this class and their other first-year courses. Students reported a heightened level of engagement in class, a sense of partnership with the faculty and cooperating attorneys and an empowering sense that they were making a difference in the law and in their cases. They also reported that they felt respected, or "treated like an adult," in contrast to many of their other firstyear courses, where they often felt intimidated, confused, alienated or helpless. 29 Although they did not speak in terms of developmental learning theory, much of their feedback suggested that they felt as though the courses offered them an opportunity to grow, not regress, as both people and as students of the law. B. First-Year ConstitutionalLaw andAppellate Advocacy My second experiment involved a two-course package in the summer session between the first and second years that combined Constitutional Law II-the individual rights

29. Students reported these effects even on the law reform projects, where students never even met a traditional client. The immediacy and the practicality of the work seems to have counter-balanced the missing client in these projects.

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component of Constitutional Law-with the required appellate advocacy course at the University of Maryland School of Law. My students were required to enroll in these courses concurrently in order to explore theory (through the Constitutional Law course) along with practice (in the Appellate Advocacy course). Like the courses described above, this course was relatively small-only 24 students enrolled-and students voluntarily enrolled in these concurrent courses (but without first knowing the case on which we would work). I divided students into four teams of between six to eight students each and assigned each group a legal issue involved in the same-sex marriage case then before the Maryland Court of Appeals. I asked students to write an appellate brief on their assigned issue; I would later consolidate their work and help to incorporate it into an amicus brief that the faculty at the University of Maryland submitted for the case. But, I allowed students to develop arguments for either the plaintiffs or the state for two reasons. First, some students expressed a moral discomfort with same-sex marriage, and arguing for the state would avoid forcing them to argue as "hired guns." Second, I anticipated that state-side arguments would serve our project every bit as well as generating plaintiffside arguments. The legal issues here, too, were by definition indeterminate: the case and, derivatively, our work on it, existed only because the state constitutional issues were unsettled. The case thus highlighted the indeterminate nature of the law, not the settled nature of the law. The students worked side-by-side with me as we developed theories and arguments together in the case, thus reinforcing their roles as agents of law reform, not passive receptacles of the law. Importantly, we devoted much class time to moral and policy discussions about same-sex marriage, placing the case in larger moral and political contexts and allowing students to explore and reflect upon broader considerations of morals and politics in crafting their approaches. Many of these discussions were predictably contentious, just as discussions among the attorneys in the case were predictably contentious. But our conscious efforts and our focus on the larger project-the case, and our pedagogical goals in using the experiential model-helped avoid marginalization of dissenting voices.

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Students universally reported effects very much like those described above in sub-part A. Notably, even those students who wrote briefs for the state-knowing that their work would ultimately be used to support arguments for same-sex marriage-reported the same high level of engagement as other students in the class. One student who wrote for the state was unusually engaged throughout the semester: I suspect he saw the case as a challenge to his moral commitment against samesex marriage. After a semester of thought and reflection on his moral commitment, and constitutional research on the issue, he told me that his moral commitment against same-sex marriage had not changed. (In some ways, his moral commitment strengthened, because the case pushed him to respond to counter-arguments.) But he nevertheless said he had a hard time making any constitutional case against same-sex marriage. As with the law reform projects described above in sub-part A, the immediacy and importance of the case seemed to outweigh the lack of an actual client in motivating the students to engage and perform. Again, while students did not speak in terms of developmental learning theory, their comments on the course suggested that they appreciated it precisely because they progressed, not regressed, as intellectual and moral thinkers. C. First-SemesterCase Work In my third effort to build upon students' reflective capabilities, I experimented with actual legal work in my firstsemester legal writing course at The John Marshall Law School in Chicago. This was a three-credit course with 23 pre-assigned students in the Fall Semester 2007. Our legal work was in support of a pro bono client of mine, a displaced worker who lost her appeal of a denial of trade adjustment assistance at the U.S. Court of International Trade. I asked my first-semester students to write a series of memos advising me and our client on the merits of an appeal to the Federal Circuit. This case had none of the factual or legal indeterminacies of the classes described above. My students never met our client, they never engaged in any fact investigation (because the record was set) and they were not seeking to reform the law in any major way. Moreover, neither the factual nor legal issues raised the kind of broad ethical questions or deep policy issues as the cases described above. In many ways, this case was exactly like

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a simulated problem that a professor might use in any firstsemester legal writing course; the biggest difference was that it was real. Nevertheless, students moved forward developmentally in significant ways. Most importantly, students saw themselves as active agents in the development of a case, not passive recipients of lessons from a case long-ago decided or actors in a simulation that I had previously worked out. Students were actually developing the case, not merely retracing steps that I had already taken. Moreover, their work as a class was quite good and turned out to have a major impact in the direction of the case. Perhaps most surprisingly, given the facially dry nature of the case, as a class we engaged in serious moral discussions about the case by the end of the semester. Like the other courses described above, I worked alongside the students in developing our case. I tried to offer guidance, but not directives, and my students very quickly became nearly as expert in the case as me. (And they knew it.) As in the courses described in sub-parts A and B, the immediacy of this case directly impacted the students' engagement with it. Given that the immediacy was the only feature of this experiment that differed from a traditional, hypothetical simulation in a first-semester writing course, this course suggests that even actual legal work alone-without indeterminacies, without broad legal and political implications and without obvious moral issues-can yield important results. V. CONCLUSION

The typical first-year curriculum seems designed to meet our incoming students where they are with regard to their development and knowledge of the law. It thus seeks to teach them the law using the most efficient and effective means. However, in doing so, it ignores the mature reasoning capabilities that our incoming students bring to law school, even if not in the law. Ignoring these capabilities results not only in lost opportunities; it also results in regression: we regress our students along the developmental continuum before we reprogress them. Actual legal work in the first year is a better way to capitalize on students' capabilities and nudge them forward as developing attorneys.

CREATING THE PERFECT STORM: How PARTNERING WITH THE ACLU INTEGRATES THE CARNEGIE REPORT'S THREE APPRENTICESHIPS KATHLEEN M. BURCH* AND CHARA FISHER JACKSON**

I. INTRODUCTION...................................................

II. CRITICISM OF LEGAL EDUCATION IN THE UNITED STATES AND RECOMMENDATIONS FOR REFORM

...............

.....................

A. The Goals ofProfessionalEducation......................

1. The Six Tasks ofProfessionalEducation ............. ..... 57 2. The Three Apprenticeships of ProfessionalEducation...............61 3. Integrating the Six Tasks and the Three Apprenticeships...........63 B. The Challenges ofLegal Education:Meeting the Goals of ProfessionalEducation by Incorporatingthe Three ............................................ Apprenticeships 1. The Socratic Method ............................ 2. The Missing Components............

.................

64 66 68

* Associate Professor, Atlanta's John Marshall Law School. BA, 1986, Rosary College; JD, 1989, Georgetown University Law Center. Portions of this article were presented at the July 2009 conference hosted by Academics Promoting the Effective Advocacy in Law and the University of Pretoria Law Faculty. I thank the staff of the American Civil Liberties Union of Georgia without whose partnership neither the Civil Liberties Seminar nor this article would have been possible. I also thank all of the students who have participated in the Civil Liberties Seminar and who have provided recommendations for the improvement of the Seminar. Much thanks must also be given to the library staff of Atlanta's John Marshall Law School and my daughter, Kiara, for her insightful editorial comments. ** Legal Director, American Civil Liberties Union of Georgia. BA, 1994, Oglethorpe University; JD, 1997, College of William and Mary School of Law.

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C. The Recommendationsfor Improvement in Legal Education.........72 III. THE CIVIL LIBERTIES SEMINAR: AN EXPERIMENT WITH EXPERIENTIAL .........................................................

LEARNING

A. In Search of a Client: Partneringwith a Non-Government Organization ................................. 1. 2. 3. 4.

......... 76

76 Why a Live Client Experience? ......................... Constraintson Identifying the Client.....................77 Non-Governmental Organizations ............. .......... 79 The ACLU of Georgia:A Perfect Partner ........ ......... 80 .........

1. Identifying and Meeting General CurricularGoals ...................

B. Designing the Course - A CollaborativeEffort ......

a. The Goals of the Civil Liberties Seminar .......... ................... 83 b. Public Service and Professionalism-Tasks 5 and 6 ......................... 86 c. Identifying the Assignments - Tasks 2 and 3...... ..................... 89 i. Civil Liberties I - The Fall Semester ............. ii. Civil Liberties H - The Spring Semester........ d. FundamentalKnowledge and Skill - Task 1

.....

2. Assessing Student Performance IV.

........ 89 ............ 92 ...................... 96

...................

BENEFITS TO THE ACLU OF GEORGIA ............................. ...................................................

V. CONCLUSION

98 99 102

INTRODUCTION

Imagine a law school course that not only prepares its students for the practice of law,' but empowers ordinary citizens

1. A.B.A., STANDARDS

AND RULES OF PROCEDURE FOR APPROVAL OF

LAW SCHOOLS 301(a) (2008-2009), available at http://abanet.org/ (last visited on Jun. 16, 2009) ("A law school shall maintain an educational program that prepares its students for admission to the bar, and effective and responsible participation in the legal profession.") [hereinafter A.B.A., STANDARDS]; ROY STUCKEY ET AL., CLINICAL LEGAL EDUCATION, BEST PRACTICES FOR LEGAL EDUCATION: A VISION AND A ROAD MAP 39 (2007)

[hereinafter BEST PRACTICES] ("At its core,...

legal education is a

professional education, and part of the mission of every law school is to prepare its students to enter the legal profession. It is why law schools

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to defend their civil liberties. Imagine law school faculty using education theory to develop that course.2 Imagine a law school course that teaches students how to meet a community's legal needs through a coordinated use of both litigation strategy and legislative initiatives. You have imagined the Civil Liberties Seminars offered at Atlanta's John Marshall Law School. The perception that law schools fail to graduate students who can competently practice law, which leads to the conclusion that legal education needs to be improved, is highlighted by two recent reports: EducatingLawyers: Preparationfor the Practice of Law from The Carnegie Foundation for the Advancement of Teaching3 and Best Practicesfor Legal Education:A Vision and A Road Map, a project of the Clinical Legal Education Association.' In response to these reports, Atlanta's John Marshall Law School has partnered with the American Civil Liberties Union of Georgia ("ACLU") to develop the Civil Liberties Seminars. The Seminars were developed to respond to the noted criticisms and provide students with the foundation necessary to practice law competently.

exist.");

GREGORY S. MUNRO, INSTITUTE FOR LAW SCHOOL TEACHING, OUTCOMES ASSESSMENT FOR LAW SCHOOLS 88 (2000) [hereinafter OUTCOMES ASSESSMENT]. The ABA Standard 301 was a response to the

legal profession's demand that law schools become responsible for preparing students for the practice of law. Id. at 28-29. 2. Law faculty increasingly are using education theory to develop new courses and improve law school curriculum. See, e.g., Laurel Currie Oates, Did Harvard Get It Right?, 59 MERCER. L. REv. 675 (2008); Michael Hunter Schwartz, Teaching Law Students to be Self-Regulated Learners, 2003 MICH. ST. L. REv. 447; Alice M. Thomas, Laying the Foundationfor Better Student Learning in the Twenty-First Century: Incorporating an Integrated Theory of Legal Education into DoctrinalPedagogy, 6 WIDENER L. SYMP. J. 49 (2000); Gary L. Blasi, What Lawyers Know: Lawyering Expertise, Cognitive Science, and the Functions of Theory, 45 J. LEGAL EDUC. 313 (1995); Gregory S. Munro, Integrating Theory and Practicein a Competency-Based Curriculum: Academic Planning at the University of Montana, 52 MONT. L. REV. 345 (1991); Carrie Menkel-Meadow, The Legacy of Clinical Education: Theories About Lawyering, 29 CLEV. ST. L. REv. 555 (1980). 3. WILLIAM M. SULLIVAN ET AL., CARNEGIE FOUNDATION FOR THE ADVANCEMENT OF TEACHING, EDUCATING LAWYERS PREPARATION FOR THE PROFESSION OF LAW (2007) [hereinafter CARNEGIE REPORT].

4. BEST PRACTICES, supra note 1.

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This article focuses on the experiences of the authors in developing the Civil Liberties Seminars.5 Although no one or two courses can provide a law student with all of the knowledge, skill, and professional judgment needed to competently represent clients upon graduation and admission to the bar, 6 the partnership between Atlanta's John Marshall Law School and the ACLU of Georgia is an effort to provide John Marshall students with the opportunity to experience the law as it affects real people in their ordinary lives, to learn the law in context, to act in the role of a lawyer, and to understand the power, privilege, and responsibilities which come with a license to practice law. The partnership between Atlanta's JMLS and the ACLU of Georgia was a conscious decision made with the recognition that the development of the Civil Liberties Seminars would further the mission of the Law School7 and benefit the ACLU. The Law School's partnership with a non-governmental organization that pursues its core mission8 through community organizing, impact litigation, and legislative advocacy made 5. ATLANTA'S JOHN MARSHALL LAW SCHOOL, CIVIL LIBERTIES I & II,

http://www.johnmarshall.edu/academics/jd.php#2 (last visited Jul. 7, 2009). 6. BEST PRACTICES, supra note 1, at 78 ("One course cannot equip students with the professional skills needed to practice law effectively and responsibly."). 7. ATLANTA'S JOHN MARSHALL LAW SCHOOL, MISSION STATEMENT,

available at http://www.johnmarshall.edu/about/mission.php (last visited Jul. 21, 2009) ("The mission of John Marshall Law School is to prepare highly competent and professional lawyers who possess a strong social conscience, continually demonstrate high ethical standards, and are committed to the improvement of the legal system and society.") [hereinafter MISSION STATEMENT]; ATLANTA'S JOHN MARSHALL LAW SCHOOL, CIVIL LIBERTIES I SEMINAR COURSE DESCRIPTION,

http://www.johnmarshall.edu/academics/coursedetails.php?c=44 (last visited Jul. 21, 2009); ATLANTA'S JOHN MARSHALL LAW SCHOOL, CIVIL LIBERTIES II

SEMINAR

COURSE

DESCRIPTION,

http://www.johnmarshall.edu/academics/coursedetails.php?c=87 (last visited Jul. 21, 2009). 8. The mission of the ACLU of Georgia is to advance the cause of civil liberties in Georgia, with emphasis on the rights of free speech, free press, free assembly, freedom of religion, due process of law and to take all legitimate action in furtherance of such purpose without political partisanship. ACLU of Georgia, http://www.acluga.org/about.html (last visited Jul. 21, 2009).

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possible learning opportunities not otherwise available in the Law School's traditional curriculum. The partnership provided the ACLU with manpower they would not otherwise have manpower to locate and interface with clients, manpower to assist in developing doctrinal expertise, and manpower to develop public education materials. In developing the Civil Liberties Seminar, the authors consciously designed the course to address many of the criticisms set forth in both the Carnegie Report and Best

Practicesand to meet the needs of the ACLU of Georgia. This article will begin by summarizing the criticism of legal education in the Carnegie Report and Best Practicesand setting

forth their recommendations for improving legal education. The article will then describe the process used to develop the Civil Liberties seminar, followed by a discussion of how the seminar meets the recommendations for improving legal education. The article will conclude with a discussion of the benefits received by the ACLU of Georgia. It is the authors' hope that the Civil Liberties Seminars can be used as models for other law schools to partner with their local ACLU affiliates or with other non-governmental organizations to create similar learning opportunities for their students. II. CRITICISM OF LEGAL EDUCATION IN THE UNITED STATES AND RECOMMENDATIONS FOR REFORM Criticism of legal education in the United States, particularly of the Socratic Method, 9 is not new."o What is new is the publication of two reports in close temporal proximity which

come to the similar conclusion that legal education needs to be improved by teaching students in context and providing students

9. See Peggy Cooper Davis & Elizabeth Ehrenfest Steinglass, A Dialogue About Socratic Teaching, 23 N.Y.U. REv. L. & Soc. CHANGE 249 (1997). 10. See, e.g., ROBERT MACCRATE, A.B.A. SECTION OF LEGAL EDUC. & ADMISSION TO THE BAR, REPORT OF THE TASK FORCE ON LAW SCHOOLS AND NARROWING THE GAP, LEGAL EDUCATION AND THE PROFESSION: PROFESSIONAL DEVELOPMENT - AN EDUCATIONAL CONTINUUM (1992); H.

Russell Cort & Jack L. Sammons, The Search for "Good Lawyering ": A

Concept and Model of Lawyering Competencies, 29 CLEV. ST. L. REV. 397, (1980).

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While it is with opportunities for formative assessment." material,1 2 two reports shared of the that the authors obvious there are no co-authors. One report, Best Practices, was published by those inside the academy of law schools.13 The other report, the Carnegie Report, was published by a group of experts in education, most of whom are not members of the academy of law schools or the legal profession.14 Because the authors of the two reports come to the same conclusion, despite being from different disciplines, and because that conclusion echoes the sentiments of the practicing bar, the criticisms and recommendations in these reports cannot easily be dismissed. So, what should professional education and, in particular, legal education accomplish? Is legal education accomplishing And, what are the recommendations for these goals? improvement? These are the questions which both the Carnegie Report and Best Practicesattempt to answer. A. The Goals ofProfessionalEducation Both the Carnegie Report and Best Practices recognize that law schools, like other professional schools, are needed.' 5 Over the past century, as more and more states required a law degree from an accredited law school in order to be eligible to sit for the bar examination, and thus gain entry into the legal profession, law schools became the one common experience

11. Compare BEST PRACTICES, supra note 1, at 27, with CARNEGIE REPORT, supra note 3, at 185-202.

12. The Carnegie Report and Best Practices reference each other. See BEST PRACTICES, supra note 1, at 275-81, and CARNEGIE REPORT, supra

note 3. 13. Best Practices was authored by Roy T. Stuckey, Margaret Barry, Robert D. Dinerstein, Jon C. Dubin, Russell Engler, Gail Hammer, Randy Hertz, Peter Joy, Carolyn Kaas, Vanessa Merton, Greg Munro, Sandy Ogilvy, Suellyn Scarnecchia and Michael Hunter Schwartz, all individuals holding positions at U.S. law schools. BEST PRACTICES, supra note 1, at x.

14. The Carnegie Report was authored by William M. Sullivan, Anne Colby, Judith Welch Wegner, Lloyd Bond and Lee S. Shulman. Only Judith Welch Wegner is a member of the legal academy. CARNEGIE REPORT, supra

note 3, at ix-x. 15. BEST PRACTICES, supra note 1, at 265-87; CARNEGIE REPORT, supra

note 3, at 185-202.

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"that virtually all legal professionals share."' 6 The first year of law school provides the foundation of legal knowledge and begins the formation of the students' professional identity as a lawyer. The goal of law schools, as with any other professional school, is to impart the "specialized knowledge" needed to successfully practice in the profession and to instill "professional identity" which cannot be accomplished without the foundation of the first year of law school." The purpose of professional education is to educate and train the novice to be an expert. As stated in the Carnegie Report, "[p]rofessional schools are not only where expert knowledge and judgment are communicated from advanced practitioner to beginner; they are also the place where the profession puts its defining values and exemplars on display, where future practitioners can begin both to assume and critically examine their future identities." 18 Professional schools train the novice "to think, perform and to conduct themselves (that is, to act morally and ethically) like professionals."' 9 The goal is for the novice to acquire knowledge and understanding "so they can act competently, and they must act competently in order to serve responsibly."2 0 1. The Six Tasks ofProfessionalEducation Education research has shown that effective professional education, that is professional education which prepares the novice to competently participate in the profession upon graduation, involves six tasks. 2 1 Those six tasks are: 1. Developing in students the fundamental knowledge and skills, especially an academic knowledge base and research 2. Providing students with the capacity to engage in complex practice

16. CARNEGIE REPORT, supra note 3, at 2. 17. BEST PRACTICES, supra note 1, at 8 ("Law schools should help

students acquire the attributes of effective, responsible lawyers. . CARNEGIE REPORT, supra note 3, at 3. 18. CARNEGIE REPORT, supra note 3, at 3.

19. Id. at 22. 20. Id. at 23. 21. See CARNEGIE REPORT, supra note 3, at 203-11.

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3. Enabling students to learn to make judgments under conditions of uncertainty 4. Teaching students how to learn from experience 5. Introducing students to the disciplines of creating and participating in a responsible and effective professional community 6. Forming students able and willing to join an enterprise of public service. 22 Although not explicitly stated in the Carnegie Report, the six tasks taught in effective professional education are, for the most part, identified in the order in which the tasks must be learned, performed, and mastered by the student.23 In order for a student to be able to engage in "complex practice" (Task 2), the student must have the tools to understand the issues raised, how the issues raised relate one to the other, and how to resolve those issues - all of which are part of the "fundamental knowledge and skill" of the profession (Task 1). Likewise, before a student can "learn to make judgments under conditions of uncertainty" (Task 3), the student must be able to make judgments under conditions of certainty, which requires the mastery of the "fundamental knowledge and skill" of the profession (Task 1) and the "capacity to engage in complex practice" in a controlled environment (Task 2). In order for a student to be able to "learn from experience" (Task 4), the student must have experience gained from "engaging in complex practice" (Task 2) and/or "learning to make judgments under conditions of uncertainty" (Task 3), both of which require mastery of the "fundamental knowledge and skill" of the profession (Task 1). 24 A student can be introduced to "the disciplines of creating and participating in a responsible and effective professional community" (Task 5) while the student is in the process of Id. at 22. Id. at 59 ("Because new leaming must always be grafted onto existing understanding, the pedagogy must somehow make connections between what the leamer knows and believes and the kinds of thinking needed for 22. 23.

professional success."); BEST PRACTICES, supra note 1, at 8-9 (Law schools

should organize their curriculums to develop knowledge, skills, and values progressively . . ."). 24. See BEST PRACTICES, supra note 1, at 74 ("Before a novice lawyer can

embark on solving any legal problem, she has to have a knowledge base to organize her experience, to communicate her ideas to others, to rely on for handling difficult situations, and to develop creative solutions.").

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mastering Tasks 1 through 4, but without some basic competence in Tasks 1 through 4, a student will not have the core knowledge or skills to recognize, model, or participate in a "responsible and effective professional community." In the alternative, the attributes of a "responsible and effective professional community" and the ability to recognize those attributes must be deemed a part of the "fundamental knowledge and skill" of the profession, thus making Task 5 a subset of Task 1. "Forming students able and willing to join an enterprise of public service" is dependent upon how well the professional school prepares its students in Tasks 1 through 5 and whether the professional school, through its faculty and other programs, provides role models (professionals involved in the enterprise of public service) and opportunities for students to join the enterprise of public service while they are students. 25 In understanding how professional schools teach the six tasks to develop experts from novices, one must understand the attributes of an expert. Psychological and educational research has identified two primary features of expert performance. 26 First, compared to novices, experts possess not only knowledge but highly structured knowledge. That is, they understand concepts basic to their domains,2 7 and they have mastered well-rehearsed procedures, or "schemas," for thinking and acting. These schemas enable experts to bring their knowledge to bear on situations with remarkable speed and accuracy. Second, expert knowledge is conditioned, or related to contexts. Experts can perceive aspects of situations in ways that are relevant to deploying their knowledge in ways beginners cannot .... These two traits characterize measures of expertise regardless of domain, although the content of the knowledge and specific features of experts' skilled 25. BEST PRACTICES, supra note 1, at 28 (faculty are role models). 26. Id. at 60 ("The mark of professional expertise is the ability to both act and think well in uncertain situations."); CARNEGIE REPORT, supra note 3, at 25; see also HOWARD GARDNER, FRAMES OF MIND: THE THEORY OF

MULTIPLE INTELLIGENCES (Basic Books 1983). 27. GARDNER, supra note 26, at xvi (A "domain" is "a discipline, craft or other pursuit in which one can become enculturated and then be assessed in terms of levels of competence one has attained. A domain is likely to be referred to as a skill or skill set.").

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perception and ability to act are highly specific to particular domains of activity. In the language of learning theorists, these features of expertise are what underlie the ability of experts to solve problems in their domains. 28 Thus, to move from novice to expert, students need to learn the underlying knowledge of the profession, the schema or manner in which the knowledge fits into a cohesive whole, and how to use the schema to solve problems with speed and accuracy.2 9 Education research suggests that people learn best "when an expert is able to model performance in such a way that the learner can imitate the performance while the expert provides feedback to guide the learner in making the activity his or her own." 30 This ability to model the performance of the expert, and not just mimic actions, presumes that the student has a base of knowledge and an understanding of why and how the knowledge relates to the performance the student is being asked to model. For a student to efficiently and effectively learn this base of knowledge and understanding requires the expert to teach the subject matter in a manner "that is already structured for performance, according to the explicit norms of the professional community." 3 ' In other words, the expert must teach the student, not only the substantive material, but the

28. CARNEGIE REPORT, supra note 3, at 25.

29. See id. at 101-02 ("[T]he expert first abstracts from a complex, often messy environment a set of factors that are most important. (This is just the skill the beginner does not have.) These are the aspects of the situation that the expert attends to and manipulates in order to render certain outcomes. Models and schema that represent the objects of the expert's perception, together with the procedures by which the expert works on these objects, are Once the elements of what might be called "theories of practice." articulated . . ., these general schemas can be probed and tested for their reliability, much like more formal scientific hypotheses. In the realm of teaching expert practice, theories are really statements of technique in the classic sense of well-tested procedures for achieving specific outcomes in certain kinds of situations. Thus novices begin to learn the rudiments of litigation practice, for example, by attending to core elements of procedural and conceptual models exemplified in expert practice. Teachers make this possible by allowing novices to work with and imitate multiple examples, using the conceptual models as scaffolds through which to understand feedback, in order to guide their assimilation of more skillful performance."). 30. Id. at 26. 3 1. Id.

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schema for thinking and acting within the profession. The expert must then model for the student how the expert retrieves the substantive material and uses the schema for solving the problem. Much of the learning in professional schools "is by observation and imitation because much of what experts know is tacit." 32 Nevertheless, to the extent that the expert can exercise their own meta-cognitive skillS33 to deconstruct their own problem-solving processes to derive their schema, the expert can then teach the student the schema, and the student can then observe the expert's performance, identifying how the By expert utilized the schema to solve the problem. 34 deconstructing her own problem-solving processes and teaching the student the process, i.e. how to apply the schema to problem solve, the expert is assisting the student to become aware of their own learning process, which assists the student to develop her own meta-cognitive skills. Once the student knows how to apply the schema and has developed her own meta-cognitive skills, the student can then transfer the knowledge and skill 35 learned to a new unrelated problem to solve. 36 2. The Three Apprenticeships ofProfessionalEducation The authors of the Carnegie Report recognize that "[t]he common problem of professional education is how to teach the complex ensemble of analytic thinking, skillful practice, and wise judgment on which each profession rests." 3 'To address this problem, the authors recommend an apprenticeship model,

32. Id. 33. See id. at 72 ("Meta-cognition" is the ability to recognize what one is doing while one is doing the task or while one is learning how to do the intellectual task.) 34. CARNEGIE REPORT, supra note 3, at 59 ("The challenge of any pedagogy is to make the invisible visible, both in the mind of the teacher and the mind of the learner."). 35. Id. at 62 ("The point of much teaching in law schools is to foster students' ability to transfer their learning so that they can apply what they have learned in one context or another, different one."). 36. See id. at 145-46, 161 (a goal of professional education is to develop meta-cognitive skills). 37. Id. at 27.

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identifying Three Apprenticeships: Cognitive, Practice, and Ethical-Social.3 8 The first apprenticeship is the Cognitive Apprenticeship. The Cognitive Apprenticeship "focuses the student on the knowledge and way of thinking of the profession."3 9 In the Cognitive Apprenticeship, students learn "the academic knowledge base of the domain, including the habits of mind that the faculty judge most important to the profession." 40 For law students, the Cognitive Apprenticeship includes the mastery of the legal rules taught in the first year required doctrinal courses. The second apprenticeship is the Practice Apprenticeship. The Practice Apprenticeship requires students to perform in a practice setting, engaging in those acts which a practitioner would encounter when representing a client.4 1 For law students, the Practice Apprenticeship is usually introduced through the legal writing program where students are required to produce the types of documents that practicing lawyers create. The third apprenticeship is the Ethical-Social Apprenticeship. The Ethical-Social Apprenticeship "introduces students to the purposes and attitudes that are guided by the values for which the professional community is responsible." 42 The EthicalSocial Apprenticeship "opens students to the critical public 38. The authors of Best Practicespropose that law schools "articulate ... educational goals in terms of desired outcomes, that is what the school's students should know, understand, and be able to do, and the attributes they should have when they graduate." BEST PRACTICES, supra note 1, at 42. "Educational theorists most frequently describe outcomes as having three Statements of intended components: knowledge, skills, and values. educational (student) outcomes are descriptions of what academic departments intend for students to know (cognitive), think (attitudinal), or do (behavioral) when they have completed their degree programs." Id. at 43 (internal citations omitted). The Best Practices outcome model mirrors the Carnegie Report's apprenticeship model. Compare BEST PRACTICES, supra note 1, at 43, with CARNEGIE REPORT, supra note 3, at 38. Under the

outcome model, what faculty intend students to know is the Cognitive Apprenticeship, what faculty intend students to be able to do is the Practice Apprenticeship, and what faculty intend students to be able to think is the Ethical-Social Apprenticeship. BEST PRACTICES, supra note 1, at 43. 39. CARNEGIE REPORT, supra note 3, at 28.

40. Id. 4 1. Id. 42. Id.

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dimension of the professional life, [and] shares aspects of liberal education in attempting to provide a wide, ethically sensitive perspective on the technical knowledge and skill that the practice of law requires. The essential goal, however, is to teach the skills and inclination, along with the ethical standards, social roles, and responsibilities that mark the professional."4 3 Law students are introduced to the Ethical-Social Apprenticeship as 4part of the required Professional Responsibility course. Legal education is criticized because, to the extent that students are introduced to each of the Apprenticeships, the Apprenticeships are taught in isolation. If professional education is to attain its goal to produce competent and professional experts, professional education must "introduce students to the full range of professional demands" and "initiate [students] into all three apprenticeships." 4 5 Legal education must not just introduce all three Apprenticeships into the law school curriculum, but must integrate all three Apprenticeships into the curriculum in a way which creates opportunities for students to model how practicing lawyers work. 3.

Integratingthe Six Tasks and the Three Apprenticeships

The authors of the Carnegie Report recognize that the challenge of professional education is to develop education programs which graduate students who have acquired a basic competence, in both substantive knowledge and skill, and who have developed sufficient understanding of the need and skill to be able to be lifelong learners. 46 The combination of basic competence and the ability to be a self-learner provides the new graduate with the skill to competently represent clients 4 3. Id. 44. A.B.A., STANDARDS, supra note 1, at 302(a)(5) ("A law school shall require that each student receive substantial instruction in. . .the history, goals, structure, values, rules and responsibilities of the legal profession and its members."). 45. Id. 46. Id. at 45 ("The challenge is to align the practices of teaching and learning with the professional school so that they introduce students to the full range of the domain of professional practice while also forming habits of mind and character that support the students' lifelong growth into mature knowledge and skill.").

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competently and to problem-solve in content areas not studied in the classroom. To accomplish the goal of producing new graduates who have mastered this combination requires professional education programs to teach the six tasks identified above within the framework of the Three Apprenticeships. It is not necessary for each task to be taught within each apprenticeship. Some tasks are more conducive to being addressed within one apprenticeship rather than another. Moreover, a truly integrated professional education curriculum will develop courses which address more than one apprenticeship within the construct of the course.4 7 Atlanta's John Marshall Law School's Civil Liberties Seminars are just such courses. B. The Challenges ofLegal Education:Meeting the Goals of ProfessionalEducation by Incorporating the Three Apprenticeships Law schools, unlike other professional schools, have additional hurdles which must be overcome in order to accomplish the goal of imparting the specialized knowledge and instilling professional identity. Unlike medical school and other graduate professional schools, students enter law school from a variety of undergraduate or work experiences. 4 8 There is no prescribed undergraduate major or course of study for law school. Law schools do not require that students have a minimal core of knowledge before beginning their legal education. The Law School Admission Test does not test a core of basic knowledge. In fact, law schools do not want all of their students to come from a similar background; law schools want diversity in their student bodies.4 9 Because the law is pervasive, 47. Id. at 68-69 (provides an example of how a professor linked the Cognitive Apprenticeship with the Practice Apprenticeship by linking the legal concepts learned through case method to current events). 48. While both the Carnegie Report and Best Practices give passing acknowledgement to this fact, neither address how law school education should create the uniformity of knowledge which is present in both U.S. medical schools and in legal education in the United Kingdom, where law is an undergraduate degree. 49. Grutter v. Bollinger, 539 U.S. 306, 332 (2003) ("law schools represent the training ground for a large number of our Nation's leaders" and as supported by amici, diversity and cross-cultural understanding in the

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because the law regulates so many substantive areas, because the law must be informed by real world consequences to real people from diverse walks of life, law schools must continue to strive to maintain diversity in its student body, diversity in undergraduate studies and prior work experience, as well as diversity in race, gender, religion, and socio-economic background. Because law schools begin with a student body which is not uniform in substantive knowledge or skills, law schools must provide students with a unifying experience which provides a basic level of knowledge and skill upon which more complex knowledge and skill can be built. This base of knowledge is the first year curriculum, which, although not required by the American Bar Association,o is basically uniform across all law schools in the United States."' The first year law school experience is such that by the time most law students have completed their first year they "have developed a clear ability to reason and argue in ways distinctive to the American legal profession." 52 While both the Carnegie Report and Best Practices acknowledge that the first year curriculum provides this unifying experience and floor of basic competency,5 3 both criticize the teaching methodology of the first year and the failure of law school curriculum or teaching methodologies to address all three of the Apprenticeships. 5 4 workplace can best be achieved when there is diversity in higher education). 50. The American Bar Association ("ABA") is the accrediting agency for U.S. law schools. See the ABA website at http://abanet.org. 51. CARNEGIE REPORT, supra note 3, at 3; see also OUTCOMES ASSESSMENT, supra note 1, at 27 (reporting criticism of the uniform methodology used in law schools across the U.S.). 52. CARNEGIE REPORT, supra note 3, at 2. 53. Id.; BEST PRACTICES, supra note 1, at 18; but see OUTCOMES

ASSESSMENT, supra note 1, at 42 (criticizing law schools for their failure to teach students to think like lawyers). 54. Both the Carnegie Report and Best Practices are critiquing legal education in general. Both acknowledge that some law schools as well as individual professors are working toward incorporating the Three Apprenticeships into legal education. We, too, acknowledge that these are generalized statements which do not pertain to all law faculty or law schools. But see OUTCOMES ASSESSMENT, supra note 1, at 153-69 (discussing why

reform must be an institutional effort and not just the work of a small number of faculty).

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1. The SocraticMethod" The Socratic Method is the "legal academy's standardized form of the Cognitive Apprenticeship," 5 6 which focuses not only on the knowledge, but the fundamental skills, of the profession. The authors of the Carnegie Report recognize the skills component of the Socratic Method when they state that "with its heavy predominance in the first year, this pedagogy emphasizes a view of the legal profession as constituted not so much by a kind of knowledge as by a particular way [of] thinking, a distinctive stance toward the world." 57 The purpose of the Socratic Method is to teach students to "think like a lawyer."58 The Carnegie Report defines to "think like a lawyer" as "the ability to translate messy situations into the clarity and precision of legal procedure and doctrine and then to take strategic action through legal argument in order to advance a client's cause before a court or in negotiation."5 9 While the 55. Both the CarnegieReport and Best Practicesuse the Socratic Method synonymously with case method. The problem with this terminology is that the Socratic Method is interpreted differently and implemented and executed differently by different teachers. Regardless of exactly how a teacher interprets or executes the Socratic Method within their classroom, the teacher is asking questions and having a conversation with the student; it is not a lecture. The Socratic Method focuses on the method of instruction. A teacher can use the Socratic Method with any subject matter presented in any form. The case method focuses on how the substantive material is presented to the student. In law schools, the case method refers to the fact that students learn the law from court opinions. The Socratic Method focuses on what questions we ask. The case method focuses on what material is used to form the basis of the questions. Thus, in the mind of this author, the two are not synonymous. 56. CARNEGIE REPORT, supranote 3, at 23. 57. Id. at 51.

58. Id.

59. Id. at 54. While this definition of to "think like a lawyer" recognizes the end result of the ability to "think like a lawyer", it fails to recognize or identify the component skills necessary to reach the end result. In order to "think like a lawyer," one must be able to, at a minimum, identify the process used by the court to apply the law to the facts of a given case and replicate that process; to understand the public policy concerns of the court; to understand the interplay between the court and the elected branches of government; to understand the directions given by the court or the legislature and use those directions, not only in a litigation context, but also to draft contracts and other documents; to ascertain the needs and goals of the client

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ability to "think like a lawyer" does not encompass all of the skills needed to practice law, it is the foundation upon which most of the skills necessary to practice law competently are built.60 Although it is recognized that the Socratic Method does a good job of accomplishing its goal of teaching first year law students to "think like a lawyer,"61 the pedagogy is criticized for being "acontextual . .. for emphasizing the formal, procedural aspects of legal reasoning as the central focus, making other aspects of cases peripheral or ancillary." 62 The criticism of the Socratic Method is that the ordinary people who are the actors in the underlying dispute are defined in impersonal terms (parties, plaintiff, defendant, appellant), in reference to positions taken or legal arguments to be made, and as static facts; not as persons in terms of humanity or as actors whose ongoing

and to determine how those needs and goals can be met within the bounds of the law with the least amount of risk to the client. See also BEST PRACTICES, supra note 1, at 71 ("'Thinking like a lawyer' involves: recurrent use of questions that are gradually internalized; structured forms of reasoning that become routine; new concepts of 'knowing' that integrate uncertainty at their root; exposure to a limited universe of law and the legal system; development of 'legal literacy' involving careful reading, mastery of vocabulary, and conventions for textural interpretation; treating professional roles as a given, rather than exploring their depth; and exposure to professional norms to foster adaptation without confronting student views.") (internal citations omitted); ELIZABETH MERTZ, THE LANGUAGE OF LAW SCHOOL: LEARNING TO THINK LIKE A LAWYER 3-4 (Oxford Univ. Press 2007) ("[O]ne thinks like a lawyer because one speaks, writes, and reads like a lawyer. Some would associate thinking like a lawyer with superior analytic skills in a neutral sense; I would instead characterize the acquisition of lawyerly 'thinking' as an initiation into a particular linguistic and textual tradition found in our society."). 60. See Myron Moskovitz, Beyond the Case Method: It's Time to Teach with Problems, 42 J. LEGAL EDUC. 241, 245 (1992) ("Problem-solving is the single intellectual skill on which all law practice is based."). 61. CARNEGIE REPORT, supra note 3, at 74 ("The case-dialogue method is a potent form of learning-by-doing. As such, it necessarily shapes the minds and dispositions of those who apprentice through it. The strength of the method lies, in part, in how well it results in learning legal analysis, and in part in its significant flexibility in application."); but see OUTCOMES ASSESSMENT, supra note 1, at 23 (criticizing law schools ability to teach students to think like a lawyer). 62. CARNEGIE REPORT, supra note 3, at 52.

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actions cause the facts of the case to continually evolve. 63 One might question, however, whether this a-contextualization is a necessary result of the use of the Socratic Method or whether it is indicative of the value judgments made by the teacher utilizing the pedagogical tool. 2. The Missing Components Law students are not taught the law "in context." 64 Few law students are exposed to clients. 65 The failure to incorporate clients into legal education leaves few opportunities for students to experience the ethical dilemmas raised when client behavior is not static, but in constant motion. 66 This motion can affect the facts at issue. Understanding how client behavior during the legal dispute can affect the relevant facts for purposes of legal analysis is essential for effective and competent client counseling. Students have difficulty understanding how client behavior during the pendency of a legal dispute can affect the legal issues and thus, the outcome. In addition, the failure to incorporate clients reduces the opportunities to discuss the "equities" of the law or public policy issues as they might arise in practice. 67 These two deficiencies are seen as a direct result of teaching students from a collection of appellate cases using the Socratic Method.6 8 In the law school classroom, students are taught doctrine, the law, and the skill of how to "think like a lawyer." The environment the student is learning in or being tested in (the classroom) is not the environment (the practice of law) in which the student will be required to use the knowledge and skill acquired. "When the setting for learning is quite different from 63. Id. at 54. 64. BEST PRACTICES, supra note 1, at 9 ("Law schools should use

teaching methods that most effectively and efficiently achieve desired educational objectives, employ context-based instruction throughout the program of instruction . . ."). 65. CARNEGIE REPORT, supra note 3, at 56. 66. Id. at 57. 67. Id. 68. Id. ("In order to gain facility in legal reasoning, case-dialogue teaching often forces students to separate their sense of justice and fairness from their understanding of the requirements of legal procedure and doctrine.").

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the settings of application and use, the challenge is great . . . , for learners must first master new skills and understanding in one setting and then figure out how to bring them into use in an entirely different one."6 9 Because the learning environment does not replicate the practice environment, at the time of graduation, law students have not yet mastered the knowledge or skills needed to practice law competently.7 0 By teaching students in an environment different from the environment experienced in the practice of law, legal education separates the Three Apprenticeships - the Cognitive, from the Practice, from the Ethical-Social. 7 1 The separation of the Three Apprenticeships occurs on multiple levels. Different faculty teach the different types of courses - doctrinal tenure-track faculty teach courses focused on substantive law (the Cognitive Apprenticeship), skills faculty teach courses focused on developing skills such as legal writing, mediation and trial advocacy (the Practice Apprenticeship), and clinical faculty teach courses with client contact, requiring students to make ethical decisions and act in a professional manner (the EthicalSocial Apprenticeship). The different types of courses usually use different types of pedagogy - doctrinal courses are usually taught using the Socratic Method, skills courses are usually taught using simulations and other active learning techniques, and clinical courses are taught using modeling and other formative assessments.7 3 Moreover, law schools communicate to students the relative importance of each of the apprenticeships by the manner in which the institution treats the faculty teaching in each apprenticeship; the manner in which the

69. Id. at 59. 70. BEST PRACTICES, supra note 1, at 7. 71. CARNEGIE REPORT, supra note 3, at 81. 72. BEST PRACTICES, supra note 1, at 124

("Active learning requires students to share responsibility for acquiring knowledge, skills, and values .... Active learning recognizes that, during classroom time, students should be engaged in behavior and activities other than listening. Active learning requires students to undertake higher order thinking, forcing them to engage in analysis, synthesis, and evaluation.") (internal citations omitted). 73. Formative assessment is "an instrument of learning." OUTCOMES ASSESSMENT, supra note 1, at 16. A formative assessment tool "is designed to facilitate the student's learning and to provide extensive [and timely] feedback." Id. at 72.

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faculty treat each other, administration, and staff; and the manner in which it grades courses in each of the apprenticeships.7 4 The issues raised by the failure to teach "in context" are exacerbated by the manner in which law schools assess student learning. The Carnegie Report and Best Practicesboth criticize the law school assessment method.75 These criticisms are leveled at both the grading curve commonly imposed by law schools and the use of one final exam for the basis of the student's grade. Because grading curves best measure the performance of the student in relation to peers, a grading curve is not an accurate assessment of whether the student has mastered the knowledge and skills taught during the course.7 6 Grading curves merely provide a sorting and ranking function, not an assessment of knowledge.7 7 Both the Carnegie Report and Best Practices recommend a movement toward the use of criterion-referenced assessments, assessments that use objective criteria to test the mastery of identified knowledge or skills that were taught in the classroom. 78 Moreover, because ranking is based on one final exam, law schools are not providing students with formative assessment, which, according to research in other areas of education, is necessary for effective learning. 79

74. CARNEGIE REPORT, supra note 3, at 140 ("Students are learning not only from the courses they take but also from the moral culture or atmosphere of their classrooms and the law school campus more broadly.... In law school, students learn both from what is said and what is left unsaid."); BEST PRACTICES, supra note 1, at 28 (faculty should serve "as role

models

. . . striving

infuse

in every student

a commitment

professionalism."). 75. BEST PRACTICES, supra note 1, at 235-63; CARNEGIE REPORT, supra note 3, at 162-84; see also OUTCOMES ASSESSMENT, supra note 1, at 33-39. 76. BEST PRACTICES, supra note 1, at 235 ("The main purpose of assessments in educational institutions is to . . . find out whether students are

learning what we want them to learn."). 77. CARNEGIE REPORT, supra note 3, at 168. 78. BEST PRACTICES, supra note 1, at 244 ("The use of clear criteria helps

students understand what is expected of them as well as why they receive the grades they receive .... The criteria should be explained to students long before the students undergo an assessment. This enhances learning and encourages students to become reflective, empowered, self-regulated learners."). 79. CARNEGIE REPORT, supra note 3, at 171-73.

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Formative assessment includes opportunities to practice the knowledge and skills necessary to become an expert, followed by feedback on how well the student has mastered those skills.8 0 In fact, students learn best when given multiple opportunities of formative assessment, prior to the summative assessment8 ' - the final exam. The formative assessment 82 opportunities need not be individually graded or included in the final grade, but the opportunity, followed by the feedback, is essential for effective learning and mastery of the skills needed for practice of the profession. 83 Because formative assessment opportunities provide students with the ability to practice using the expert schema to problem solve and because context-based learning combines the Three Apprenticeships, formative assessment opportunities provided within context-based learning is the most appropriate model for professional education, including legal education. The current structure of law school curriculum, which teaches students doctrine separated from skills has created a situation where law students are not being taught how the knowledge and skills in the Three Apprenticeships are complementary and all needed for the practice of law. Because of the emphasis on learning the law as illustrated by the number of doctrinal courses in the required curriculum and by the nature of the bar exam, law students are receiving the message that law schools and the legal profession value the Cognitive Apprenticeship over the Practice and Ethical-Social Apprenticeships.

80. BEST PRACTICES, supra note 1, at 175 ("Feedback about their performances should help students understand what conduct is inappropriate (and requires avoidance) and what conduct is acceptable (and deserves repeating) . . . . To be useful to the student, feedback should be relevant and

focus on learning dilemmas."). 81. Summative assessment "measures achievement, its after-the-fact character forecloses the possibility of giving meaningful feedback to the student about progress in learning."

CARNEGIE REPORT, supra note 3, at

164. 82. Formative assessment "provides feedback in order to support opportunities to improve learning as the course proceeds." CARNEGIE REPORT, supra note 3, at 164. 83. OUTCOMES ASSESSMENT, supra note 1, at 73 (Law students should be

provided with formative assessment opportunities prior to the final exam.).

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C. The Recommendationsfor Improvement in Legal Education Law schools must develop a curriculum which integrates the Three Apprenticeships. 84 An integrated curriculum is not the addition of individual courses which each focus on only one of the Three Apprenticeships.85 Each course should teach "the analytical and the moral, the procedural and the substantive in dialogue throughout the process of learning the law."8 6 This can be done by teaching "in context," using active learning techniques. 87 Context is important because it helps students "understand what they are learning, provides anchor points so they can recall what they learn, and shows them how to transfer what they learn in the classroom to lawyers' tasks in practice."88 The inclusion of skills modules in doctrinal courses and the increased use of clinical opportunities are two ways to integrate the Three Apprenticeships in the current structure of legal education.8 9 More focus needs to be given to developing professional judgment. Professional judgment is the expert's ability to "bring their knowledge to bear on situations with remarkable speed and accuracy" by "perceive[ing] aspects of situations in a way that are relevant to deploying their knowledge." 90 Professional judgment can only be exercised within the context of a particular situation. Because the individual exercising professional judgment must understand the situation presented and know how to apply the schema to problem solve, professional judgment is best taught within the context of the situation in which the problem arises. Professional judgment takes time and experience to develop. 9' As such, professional judgment is best taught using formative assessment, in situations where the expert demonstrates the behavior in context

84. CARNEGIE REPORT, supra note 3, at 58, 85. CARNEGIE REPORT, supra note 3, ASSESSMENT, supra note 1, at 171.

81.

at 58; see also

OUTCOMES

86. CARNEGIE REPORT, supra note 3, at 142.

87. Id. at 57, 115. 88. BEST PRACTICES, supra note 1, at 141. 89. CARNEGIE REPORT, supra note 3, at 88, 142. 90. Id. at 25. 91. BEST PRACTICES, supra note 1, at 60; CARNEGIE REPORT, supra note

3, at 135.

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and the student can practice modeling the behavior under different scenarios until the schema is mastered.9 2 Professional judgment is a hallmark of competency. Competency, however, "is context dependent in that it is a statement of relationship between an ability (in the person), a task (in the world), and the legal framework and the specific contexts in which those tasks occur."9 3 "Competence requires the integrative application of knowledge, skills and values." 94 Competence, thus, indicates a mastery of the Three Apprenticeships - Cognitive, Practice, and Ethical-Social. Not only is the best way to teach competency through context-based learning, the only way to measure competency is through context-based learning and formative

assessment. 95 When students learn to be problem solvers by solving problems in context, 96 students have the opportunity to develop professional judgment, i.e. the ability to discern and respond appropriately to the ethical and social issues raised by the problem being solved.9 7 When students learn in context, they are better able to transfer the professional judgment developed in law school to the practice of law and thus, better able to practice law competently at the time of graduation. According to the authors of Best Practices, the best process to use to reform legal education such that all Three Apprenticeships are integrated is to "articulate clear educational objectives for the program of instruction and . .. to describe

those objectives in terms of desired outcomes." 98 "Descriptions of desired outcomes of legal education should include statements of what graduates should know, what they should be able to do, and how they should be able to do it." 99 The focus should be on preparing students "for the jobs they are likely to have and the contexts they are likely to encounter as new

92. CARNEGIE REPORT, supra note 3, at 165, 172. 93. BEST PRACTICES, supra note 1, at 60.

94. Id. 95. 96. 97. 98. 99.

OUTCOMES ASSESSMENT, supra note 1, at 12-17. CARNEGIE REPORT, supra note 3, at 95. Id. at 115. BEST PRACTICES, supra note 1, at 8. Id.

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lawyers."100 This requires a shift from using the Socratic Method, which "is teacher centered, gives little consideration to clients, and treats feelings as irrelevant," to experiential teaching, which "is student centered, takes clients seriously, and values feelings as much as thinking." 1 ' III. THE CIVIL LIBERTIES SEMINAR: AN EXPERIMENT WITH EXPERIENTIAL LEARNING

The concept for the Civil Liberties Seminar was born from the desire to create a low cost experiential learning' 02 opportunity for students that would provide more guided learning than would participation in the Law School's Externship Program 0 3 and which would further the mission of the Law School "to prepare highly competent and professional lawyers who possess a strong social conscience, continually demonstrate high ethical standards, and are committed to the improvement of the legal system and society." 04 The Civil Liberties Seminar was designed within the constraints of the

100. Id. at 27. 101. Id. at 35.

102. Id. at 165 ("Experiential courses ... [i]n law schools ... involve using students' experiences in the roles of lawyers or their observations of practicing lawyers and judges to guide their learning. Experiential education integrates theory and practice by combining academic inquiry with actual experience ... [and] consists of a designed, managed, and guided experience."). 103. The Law School maintains a robust Externship Program with approximately 19% of the student body participating in the Program during each semester. But, as recognized in Best Practices, the quality of the experiential learning opportunities in an externship program is dependent upon both the quality of the interaction with and the time availability of the supervising attorney. BEST PRACTICES, supra note 1, at 201-02. Neither of

these variables is within the control of the faculty member directing the externship program or the law school itself. When the experiential learning opportunity is brought in house, faculty can exert more quality control. Id. at 192. 104. MISSION STATEMENT, supra note 7.

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Law School's existing curriculum,'s no funding, and the ABA Standards for the Accreditation of Law Schools.'O6 The objective' 07 in developing the Civil Liberties Seminar was to provide students with the opportunity to work on real cases, with real clients. In providing legal services to real clients, students would be required to utilize the knowledge learned in doctrinal courses and the skills learned in skills courses.10 8 Students would be required to act in an ethical and

105. Atlanta's John Marshall Law School is a school of opportunity, providing a legal education for those who historically have not had an opportunity for legal education. As such, the required curriculum is highly structured and consists of sixty-two hours of required courses, thirty of which are first year courses (six hours each of Civil Procedure, Contracts, Legal Research, Writing, and Analysis, Real Property, and Torts). Thirtytwo of those hours are upper level required courses (Business Organizations, Constitutional Law I and II, Criminal Law, Criminal Procedure, Evidence, Professional Responsibility, Remedies, Sales and Secured Transactions, and two upper level writing/skills courses). Recognizing that a majority of the Law School's graduates practice in Georgia and upon graduation practice in government offices or in solo and small firms, the required curriculum was designed to teach students those basic subjects which they were most likely to encounter in practice and which are tested on the Georgia Bar Exam. Electives were likewise designed to expose students to those subject areas they were most likely to encounter in practice. Prior to the approval of the Civil Liberties Seminar, most experiential learning took place in the Externship Program and within the skills curriculum. ATLANTA'S JOHN MARSHALL

LAW

SCHOOL,

STUDENT

PROGRAM,

http://

www.johnmarshall.edu/academics/jd.php#l (last visited on Jul. 8, 2009). 106. See supra note 50. The ABA is the accrediting agency for law schools, and thus, the Law School's curriculum must meet ABA Standards. 107. The basic principles for curriculum design were used to develop the Civil Liberties Seminar. Those principles are: Stage 1: Identifying educational objectives that the school or course should seek to attain. Stage 2: Selecting learning experiences that are likely to be useful in attaining those objectives. Stage 3: Organizing the selected learning experiences for effective instruction. Stage 4: Designing methods for evaluating the effectiveness of the selected learning experiences. BEST PRACTICES, supra note 1, at 3 (citing Ralph Tyler, Basic Principles of Curriculum and Instruction (1949)). 108. BEST PRACTICES, supra note 1, at 190.

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The overarching objective in professional manner.' 0 9 developing the Civil Liberties Seminar was to integrate the Three Apprenticeships - Cognitive, Practice, and EthicalSocial. The problem was, without an established clinic and without funding to establish a clinical program, from where would the clients come? A. In Search of a Client: Partneringwith a Non-Government Organization The search for a client presented several opportunities. The Law School could partner with a private attorney who was working on a pro bono case. The Law School could partner with a government agency, such as a prosecutor's office or public defender's office, or the Law School could partner with a civil legal aid organization. Each of these possibilities would provide students with the opportunity to learn how the law These applies to an individual by representing clients. possibilities would provide the same types of opportunities as a traditional Law School externship program. None of these possibilities would necessarily provide the student with the opportunity to learn how to work to change the law. In order to provide students with the opportunity to learn not only how the law affects people in real world situations, but to understand that litigation is not the only response to laws which cause inequitable results, it was determined that the Law School should partner with a non-governmental organization that provided legal services to the underprivileged and which also actively monitored legislation. This subsection will identify the pedagogical reasons for introducing a live-client experience, will identify the constraints of choosing a client, and will explain why the ACLU of Georgia was deemed the perfect partner for Atlanta's John Marshall Law School's Civil Liberties Seminars. 1. Why a Live Client Experience? Experiential learning works best when students believe that the work they have been assigned has purpose. The use of simulations, particularly when students are informed as to why 109. Id.

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and how participation in a particular simulation is important and will have relevance to the practice of law upon graduation, can provide a better learning opportunity than a lecture or use of the Socratic Method. Because students do not emotionally connect to a lecture, student learning is not as effective as when students are engaged by a simulation. When students are given the responsibility to represent a person, someone they can see and talk to, students are more engaged, better prepared, and learn more.1 10 To create an engaging learning environment, supervised by a full-time faculty member, of a type which was not yet available at the Law School, a real client was needed. The client's needs would, of course, identify the substantive or doctrinal component of the course. It was important then for the type of client and that client's legal needs to fit within the Law School's mission and the goals that the Law School had identified in order to achieve its mission. Such a fit between client and Law School mission would start the integration between the Cognitive Apprenticeship and the Ethical-Social Apprenticeship. The client then had to be from or serving a "historically underserved community.""' In addition, a perfect client from a mission viewpoint would be one whose legal needs provided opportunities to "[p]repare students to anticipate and adapt to future developments in the law."ll 2 2. Constraintson Identifying the Client While the primary focus of developing the Civil Liberties Seminars was to create learning opportunities for students, the authors recognized that developing an experiential learning opportunity with a real client required the authors to not only act as educators, but also required the authors "to think like lawyers."' 13 When students asked why the Seminars were 110. Id. ("the learning is deeper and more meaningful when a student is participating as a lawyer, rather than as an observer or assistant or in a make believe situation."). 111. MIssION STATEMENT, supra note 7 ("[e]ncourage students to engage in pro bono activities and to provide legal services to historically underserved communities upon their admission to the Bar"). 112. Id. ("[p]repare students to anticipate and adapt to future developments in the law"). 113. The Law School is an independent law school and thus, has no in-

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designed in a particular way, there needed to be a rational answer. Even the design of the course was a modeling opportunity for students, as each decision made in the development of the courses was made to enhance student learning or made in response to a legal concern and in an effort to minimize risk to the Law School and the ACLU. While designing the Seminars, several constraints were identified. First, not all faculty at the Law School, who might in the future teach the Seminars, were licensed to practice law in the State.1 4 Second, the Law School does not carry a malpractice insurance policy for faculty or students, and there was no money in the budget to purchase one. 115 Third, the doctrinal component of the courses should be one with which the faculty member teaching the courses was familiar." 6 To address these constraints, it was determined that the Seminars should be a partnership with an attorney licensed to practice law in Georgia, who carried their own malpractice insurance, which would cover the work of the students. This determination, in turn, required that the attorney with whom the Law School would partner was one who understood the mission of the Law School, the pedagogical goals of the course, and who was willing to work with the faculty in a collaborative model. It also meant that the pedagogical goals of the course would need to complement the work of the attorney. In other words, the attorney needed to derive some benefit from the work that would be expended in collaborating on the course and assisting in supervising the students.

house general counsel. 114. The author and faculty member currently teaching the Seminar is admitted to practice in the State of Illinois, in the State of Yap in the Federated States of Micronesia and before the Supreme Court of the United States, the Supreme Court of the Federated States of Micronesia, United States Court of Appeals for the Seventh Circuit, and United States District Court for the Northern District of Illinois; but is not admitted to practice in the State of Georgia. 115. BEST PRACTICES, supra note 1, at 194, 203 (Law schools should carry malpractice insurance.). 116. MODEL RULES OF PROF'L CONDUCT R. 1.1 (limiting an attorney's representation to those issues with which the attorney has knowledge or familiarity).

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3. Non-Governmental Organizations The process of identifying a client whose legal needs complemented the mission of the Law School lead to the concept of partnering with a non-governmental organization (NGO). A NGO, which engages in legislative advocacy, rather than a private firm or individual, was more likely to require legal services which would serve "historically underserved communities." 1 l 7 A local NGO already providing legal services would likely have on staff an attorney licensed to practice law in the State. If the local NGO was already providing legal services, then the NGO should already carry its own malpractice insurance policy, and if the NGO had an internship program, the malpractice insurance would likely already cover the work of students, whether on-site or off. Students would learn not only how the law is enforced, but how the law is created. With the knowledge of how the law is created and the experience of a lobbyist, students would have the skills and understanding to know how to affect "future developments in the law." Moreover, the benefits would not all accrue to the Law School and its students. Many NGOs which provide legal services to "historically underserved communities"11 8 are underfunded and even those not significantly underfunded could use more manpower in their legal services department. The Law School would provide the manpower - students supervised by a full-time faculty member with expertise in the substantive area of law. On the educational side, a NGO that already provided legal services and which already had an internship program would likely have a staff attorney with experience in supervising law students and would already be aware of ABA requirements and the pedagogical concerns of the Law School. Less time would be needed to educate the staff of the NGO, and more time could be spent on designing and then implementing the curriculum for the course.

117. MissIoN STATEMENT, supra note 7 ("[e]ncourage students to engage in pro bono activities and to provide legal services to historically underserved communities upon their admission to the Bar"). 118. Id.

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Partnering with the right NGO would also mean that the Law School would be able to provide its students with opportunities to affect the "future developments in the law."I 1 9 4. The ACLU of Georgia: A Perfect Partner The perfect NGO would be one which (1) provided legal services to "historically underserved communities" 2 0 ; (2) had an attorney on staff licensed to practice in the State; (3) carried malpractice insurance which would cover the work of students; (4) was willing to work collaboratively with Law School faculty and administration; (5) provided services in an area of faculty expertise; and (6) whose mission included the provision of legal services which were likely to affect the "future developments in

the law."'21 The ACLU of Georgia was identified as the perfect partner. In addition to meeting all of the Law School's criteria for partnership, the ACLU of Georgia's mission has allowed the ACLU and the Law School to create the kinds of learning opportunities identified in both the Carnegie Report and Best Practicesas being best at integrating the Three Apprenticeships. It is the execution of the ACLU's mission through its legal department which has allowed the Law School to create these opportunities. The primary function of the ACLU's legal department is litigation. While hundreds of cases with legal merit present themselves each month, litigation activities are limited to impact cases.122 Successful impact litigation brings about needed changes in laws and policies, but more than litigation is needed for those changes to have an impact upon communities and individuals. Through public education and community 119. Id. ("[p]repare students to anticipate and adapt to future developments in the law"). 120. Id. ("[ejncourage students to engage in pro bono activities and to provide legal services to historically underserved communities upon their admission to the Bar"). 121. Id. ("[p]repare students to anticipate and adapt to future developments in the law"). 122. The ACLU defines impact cases as those cases which extend rights to segments of the population that have traditionally been denied their rights, affirm rights that may be in question, or stop a governmental deprivation of rights.

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organizing, the ACLU is able to translate legal decisions into practical applications that inform and empower communities to know their rights, protect their freedoms, and take action in defense of civil liberties. The ACLU of Georgia relies upon input from those same communities to develop a legislative agenda. Communities bring problems and concerns to the ACLU of Georgia. With guidance for and from the community on the solutions needed, issues are evaluated to determine the most cost-effective and efficient way to reach the solution. When addressing violations of civil liberties that arise from applications of state statutes and the Georgia Constitution, legislative advocacy is often a more effective means to achieve systemic change. ACLU members and supporters advocate for the ACLU's legislative agenda as constituents and work diligently to influence the actions of Georgia lawmakers. Constituent advocacy is important because elected officials have an obligation to listen to constituents and represent them. Constituents are also able to hold lawmakers accountable for action or inaction by voting them into or out of office. Inclusion of an item on the legislative agenda brings the implicit understanding that, if the issue cannot be resolved through legislative action, litigation is a possibility.12 3 In administration of the legal program, the ACLU of Georgia acts through three separate, but interrelated mechanisms community organizing with a public education component, impact litigation, and a legislative agenda. The three components are interdependent, and each is necessary to the successful implementation of the ACLU of Georgia's 124 mission. The synergies created by identifying learning opportunities which require students to work within and across the ACLU's three interrelated mechanisms - community organizing with a 123. The relationship between legislative action and the threat of litigation is often not developed in the traditional law school classroom. The Civil Liberties Seminars have been developed to provide students with the opportunity to explore the relationship between litigation and legislation, between the courts and the legislature and between the community and the government. Due to time constraints and the amount of material which must be covered, it is not always possible to explore these relationships in a doctrinal course. 124. See supra note 8.

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public education component, impact litigation, and a legislative agenda - provide the integration of the Cognitive, Practice, and Ethical-Social Apprenticeships. B. Designing the Course - A CollaborativeEffort The nature of the legal work performed by the ACLU allowed for the development of two seminars. Civil Liberties I, offered in the fall semester, focuses on the ACLU's litigation docket. Civil Liberties II, offered in the spring semester when the Georgia General Assembly is in session, focuses on the ACLU's legislative agenda. Civil Liberties I and II are designed such that a student can take one or both. If a student takes both courses, the student can work on the same issue in both courses, thus gaining a deeper understanding of how issues raised in litigation can be resolved through appropriate legislation and how poorly drafted legislation forms the basis for litigation. The curriculum for both Civil Liberties I and II was designed to provide a highly structured mechanism by which to deliver the six tasks of professional education while instructing students as to how the Three Apprenticeships were modeled in the work of the ACLU's legal department. In addition, Civil Liberties I and II were designed to provide students with the opportunity to experience the different roles that an attorney for the ACLU fills. While there is some artificiality in the sense that, unlike the ACLU attorney, the students do not work on pending or proposed litigation at the same time that students are working on legislation, both courses have been designed such that students learn how the ACLU's community education programs, litigation docket, and legislative agenda impact each other and, both individually and collectively, further the mission of the ACLU and meet the legal needs of the ACLU clients. 1. Identifying and Meeting General CurricularGoals Although students require scaffolds to learn and those scaffolds must start with the foundational pieces of knowledge which are found in the Cognitive Apprenticeship and move toward the integration of the Three Apprenticeships, when designing curriculum, whether a single course or a series of courses, faculty must start with the intended outcome - the

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goal.'2 5 Thus, we started by identifying the goals we wanted our students to accomplish during each semester and how those goals related to the practice of law. a. The Goals of the Civil Liberties Seminar The authors identified the goals that represent the types of legal knowledge and skills which students need to master if they are to be competent to represent clients upon graduation and admission to the bar. The course goals provide the students with a relevant educational experience because the goals are accomplished through the use of assignments that require students to engage in legal work for real clients. The students learn the knowledge and practice the skills they need for the competent practice of law in the context of representing live clients under the supervision of a full-time faculty member and a practicing attorney. The authors started by identifying the goals that formed the bases of both courses and then within each goal more narrowly tailored the goal for the context within which it would be learned - litigation or legislative advocacy. The authors identified nine goals: Goal 1: The student will be able to identify and appropriately resolve ethical and professional dilemmas. The student will participate in a responsible and effective professional community. Civil Liberties I: Within the context of client communications, the student will be able to identify when the attorney-client privilege attaches. The student will be able to identify when the work product doctrine attaches to their work. The student understands the ACLU Confidentiality Agreement and can articulate the different obligation imposed by the ACLU Confidentiality Agreement from the Georgia Rules of Professional Responsibility. Civil Liberties II: Within the context of being a lobbyist for the ACLU, the student will be able to identify when the attorney-client privilege attaches. The student understands the ethical rules for lobbyists, can recognize when the rules apply, and conforms their actions to the rules. The student understands the ACLU 125. See CARNEGIE REPORT, supra note 3, at 28, and supra text accompanying note 39.

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Confidentiality Agreement and can articulate the different obligation imposed by the ACLU Confidentiality Agreement from the Georgia Rules of Professional Responsibility. Goal 2: The student will be able to identify legal issues within complex factual settings. Civil Liberties I: Within the litigation context, students will be able to identify the federal and state constitutional and statutory causes of action. The student will be able to articulate the factual and/or legal bases for which the client has standing. 126 The student will be able to articulate the appropriate remedy for the cause of action and state how the remedy will affect the client. Civil Liberties II: Within the lobbying context, students will be able to identify the federal and state constitutional issues raised by the bills introduced into the Georgia General Assembly. The student will be able to identify the current laws which the bill will modify. The student will be able to identify the public policy concerns raised by the bill introduced into the Georgia General Assembly, including any unintended consequences of the bill. Goal 3: The student will be able to demonstrate the ability to engage in factual investigation. Civil Liberties I: The student will be able to identify the legally relevant facts for standing and the underlying cause of action. The student will be able to identify where to locate the factual information and the best method for obtaining that information. Civil Liberties II: The student will be able to identify the factual situation to which the proposed legislation will apply. The student will be able to identify the unintended consequences of the proposed legislation. The student will be able to determine whether the legislative purpose will be accomplished by the proposed legislation as drafted.

126. The issue of standing was specifically chosen because it is one of the few practical skills taught in a constitutional law course and which is also necessary for all litigation.

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Goal 4: The student will demonstrate the ability to identify and evaluate strategies for solving a legal problem. Civil Liberties I: The student will be able to identify and evaluate alternative solutions to the issues raised in litigation. The student will be able to identify and diagnose problems with current law and recommend changes utilizing non-litigation strategies. Civil Liberties II: The student will be able to identify, evaluate, and propose solutions to problems raised by proposed legislation. The student will be able to identify litigation opportunities raised by the proposed litigation and identify the characteristics of the best plaintiff. Goal 5: The student will be able to critically assess the actions taken by self and others. The student will develop an understanding of what it means to participate in an enterprise of public service. Civil Liberties 1: The student will be able to articulate the litigation strategy of the named counsel, critique the strategy, and recommend alternative courses of action. The student will be able to articulate reasons for their actions, assess whether the actions taken obtained the result intended, and determine whether an alternative course of action would be appropriate in the future. Civil Liberties II: The student will be able to articulate the legislative agenda for the ACLU, critique the strategy formulated to further the agenda, and recommend alternative courses of action. The student will be able to articulate reasons for their recommendations for strategies to attain the ACLU's legislative agenda on the bills they are following, critique those reasons, and determine whether alternative strategies would be more effective in the future. Goal 6: The student will be able to demonstrate proficiency in legal research and related social science research. Goal 7: The student will demonstrate a proficiency in both oral and written communication. Goal 8: The student will demonstrate the ability to counsel clients.

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Civil Liberties I: The student will establish a relationship with the client within the parameters established by the ACLU. The student will gather relevant information from the client as requested by ACLU attorneys. The student will provide information to the client and inform the client regarding decisions to be made. Civil Liberties II: The student will establish an appropriate rapport with the ACLU attorney. The student will gather relevant information regarding the ACLU position on the legislation being tracked. The student will provide information to the ACLU attorney and ACLU Legal Committee on the legislation and recommend action. Goal 9: The student will demonstrate the ability to organize and manage legal work. Civil Liberties I: The student will demonstrate the ability to maintain time records and a client file. Civil Liberties II: The student will demonstrate the ability to track legislation on a substantive area for the legislative session. b. Public Service and Professionalism- Tasks 5 and 6 Implicit in the choice of the ACLU of Georgia as a partner was the goal of "forming students able and willing to join an enterprise of public service" (Task 6).127 By partnering with a NGO with an in-house legal director who was willing to take an active role in curricular design, in class participation, and in supervising students, the students were exposed to a role model who exemplified a member of the profession involved in public service, providing legal services to "historically underserved communities."l 28 The fact that the Law School approved the course and assigned a full-time faculty member to teach the course showed the Law School's commitment to the goals of the course. The partnership between the ACLU of Georgia and the Law School established a course whose curriculum focused 127. CARNEGIE REPORT, supra note 3, at 22. 128. MISSION STATEMENT, supra note 7 ("[e]ncourage students to engage in pro bono activities and to provide legal services to historically underserved communities upon their admission to the Bar").

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on public service - exposed students to the unmet needs of the legal community and the need for attorneys to take action to meet those needs. The choice of a NGO, whose professional and ethical standards are higher than those imposed on the profession in general, insured that students would be exposed to role models who already "participat[ed] in a res onsible and effective professional community" (Task 5).12 Voreover, students would be expected to model the behavior of the ACLU attorneys resulting in the students themselves "creating and participating in a responsible and effective professional community."l 3 0 Because most students who would be enrolled in one or both of the Seminars would not yet have taken the required Professional Responsibility course 1 and because the students cannot conform their behavior to expectations if those expectations are not communicated to students,' 3 2 the first class of the course is a class on professional responsibility. Students are introduced to the basic requirements of professionalism imposed on the bar by the Supreme Court of Georgia' 33 and are also informed of the requirements and expectations of the ACLU of Georgia. The professionalism component of the course is presented by the ACLU of Georgia's Executive Director. By having the Executive Director present the professionalism material and assist the students in working through situationsl 34 that raise ethical and professionalism issues the students are likely to encounter, the expectations of the ACLU are communicated clearly to the students. The

129. Id.

130. Id. 131. See, e.g., SCHEDULE

ATLANTA'S JOHN MARSHALL

LAW SCHOOL, COURSE

(Fall 2009), http://wwwjohnmarshall.edulacademics/CourseSchedule.php?Y=2009&P=F all (Professional Responsibility is a required course for third year students.). 132. BEST PRACTICES, supra note 1, at 168; OUTCOMES ASSESSMENT, supra note 1, at 78, 99. 133. GA. RULES OF PROF'L RESPONSIBILITY (Jan. 1, 2001), available at http://www.gabar.org/handbook/partiv after january_ 1 2001 --georgiarulesfoLprofessionalconduct/. 134. The scenarios used are different in Civil Liberties I versus Civil Liberties II because the types of situations that the student is likely to encounter in each course are different.

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students are also provided with the fundamental knowledge and skill (Task 1) to identify and assess the ethical and professionalism dilemmas that they may encounter throughout the semester.13 5 Because the students' field work is likely the first time that they will have encountered either clients or similar ethical issues, students are specifically told when in doubt as to the best and appropriate way to proceed, to call for instructions.1 36 As many of the legal issues which students will work on are high profile issues, students are provided specific protocols on how to handle media requests. Students have uniformly lived up to expectations by demonstrating legal skills comparable to practitioners, including communicating with clients in a culturally competent manner, demonstrating an ability to articulate complex legal theories and concepts, and interacting in a professional manner with colleagues in litigation and legislative settings. The framework for integrating the Carnegie Report's Three Apprenticeships was created by establishing that the legal work the students would be engaged in would further the Law School's mission, would promote justice, and would require that students engage in a professional community. The students would be performing legal work in context - within the framework of the ACLU's legal agenda, thus establishing the basis for students to engage in the Ethical-Social Apprenticeship. Although the framework for integrating the Three Apprenticeships was established, the Law School and the ACLU needed to identify how the goals of the Cognitive and Practice Apprenticeships would be met. Because the context of Civil Liberties I (litigation) and Civil Liberties II (legislation) is different, slightly different goals were identified for the Cognitive and Practice Apprenticeships

135. The fact that the Executive Director of the ACLU of Georgia takes the time to meet with students to discuss ethics and professionalism highlights the importance of these issues and the need for the students to master this knowledge and skill. In addition, the course policies specifically state that a violation of the student's professional responsibility in the course is a violation of the Law School's Code of Student Responsibility and is subject to the school's disciplinary procedures. 136. Students are provided the cellular telephone numbers for the ACLU attorney and the faculty member.

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for each course.1 37 The authors identified the experiences which would allow the student to "engage in complex practice" (Task 2) and to "learn to make judgments under conditions of uncertainty" (Task 3)138 the experiences needed to both accomplish the pedagogical goals of the course and provide the ACLU with value. Once the experiences were identified, the authors designed assignments around the experiences such that opportunities for students to "learn from experience" (Task 4) were created. Once the experiences were identified and the assignments created, the authors were able to identify the knowledge and skill (Task 1) and the order in which the knowledge and skill needed to be taught in order for the students to be able to perform the tasks assigned for the

semester. 139

c. Identifying the Assignments - Tasks 2 and 3 i. Civil Liberties I - The FallSemester Civil Liberties I focuses on the ACLU's litigation docket. Students either work on litigation that is currently pending or work to identify and locate the perfect plaintiff for impact litigation in an area within one of the ACLU's priority issues.140 The assignments that the students must complete during the semester are all placed within the context of the litigation the student is working on or the ACLU's agenda and provide opportunities for students to understand the interrelatedness of the ACLU's education program and its litigation strategy, how one informs the other.

137. See supra Part III.B. l.a. 138. This is Stage 2 of curriculum design. See supra text accompanying note 23. 139. This is Stage 3 of curriculum design. See supra text accompanying note 23. 140. The ACLU of Georgia's priority issues are criminal justice, death penalty, disability rights, drug policy, free speech, HIV/AIDS, Human Rights, Immigrants Rights, Lesbian and Gay Rights, National Security, Police Practices, Prisoners' Rights, Privacy and Technology, Racial Justice, Religion and Belief, Reproductive Freedom, Rights of the Poor, National Security, Students' Rights, Voting Rights and Women's Rights. The national ACLU's website is located at http//:www.aclu.org.

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First, students perform all work assigned by the supervising attorney as required by the status of the pending litigation and maintain a case file, including timesheets. The relevance of the assignment to the pending litigation is explained to the students either before or at the time of assignment. 141 Students are informed when all assignments are due. Students are required to keep timesheets, which include a description of the task performed, and to submit timesheets on a weekly basis. By maintaining timesheets, students come to understand the time it takes to accomplish specific tasks,14 2 begin the habit of keeping accurate records, 14 3 and create business records for the purposes of collecting attorney fees if awarded by the court in the litigation on which the student is working. Students are required to maintain a case file, which includes a record of all contact with the client and all work done on the case including copies of all written work. A copy of the case file is submitted for grading purposes, and a copy is submitted to the ACLU and becomes part of the ACLU's case file. The first semester Civil Liberties I was offered, students worked on a class-action lawsuit pending in the Northern District of Georgia which challenged the manner in which students in the Atlanta Public School System were disciplined and assigned to alternative schools. Students were divided into teams providing the students with a collaborative learning model. 4 Students met with clients, assisted with obtaining affidavits to support pleadings, attended meetings to prepare clients for depositions, attended depositions, and participated in 141. BEST PRACTICES, supra note ASSESSMENT, supra note 1, at 143-44.

168,

175;

OUTCOMES

142. This understanding of how long it takes to accomplish a task assists the student to further develop their meta-cognitive skills and allows the student to develop the time management skills necessary for practice. 143. Maintaining accurate time records teaches the students one of the most important and least taught skills for the practice of law. Lawyers can not bill for their time unless they have accurate records of time spent on the case. See BEST PRACTICES, supra note 1, at 189 (discussing the importance

of teaching office management skills in a clinical setting). 144. The collaborative model provides a more realistic practice setting and provides students opportunities to develop team work skills. BEST PRACTICES, supra note 1, at 119-21; OUTCOMES ASSESSMENT, supra note 1,

at 148-51. In addition, for safety reasons, students were required to perform all field work in pairs and carry cell phones.

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telephonic conference calls with attorneys from the national office of the ACLU. Second, students were required to attend either a community meeting or a school board meeting and to maintain a journal regarding the experience. This assignment was required to ensure students observe and experience how the decisions made by school boards impact the lives of ordinary individuals and to understand the concerns of the community. This assignment provided the opportunity for students not only to learn the law, but to see the law in action and to hear from those individuals whom the law affects. It is through this ability to see how law affects those with little or no political voice that students can come to understand the power they will have as an attorney to effectuate change either for one individual or for a larger segment of society through impact litigation or through changing the law. The journaling requirement was designed to move students to think about their role in the community both as an individual and as an attorney. Third, students were required to work in the ACLU's office doing client intake. This assignment provided students with an opportunity to see the types of legal issues that are raised by the local community. This assignment provided students with a window through which to see the general public's understanding or misunderstanding of their constitutional rights, how government officials in different parts of the State interpret their duties and the constraints placed on them by the U.S. Constitution, and what the U.S. Supreme Court means by the tyranny of the majority on a "discrete and insular minority."1 4 5 In addition, students were exposed to the process by which the ACLU identifies potential clients and impact litigation opportunities. Fourth, students were required to write a paper and develop public education materials on a topic of education law, which was the doctrinal basis of the course. 146 This assignment created the opportunity to build upon the knowledge and skills that students had already learned in their other law school

145. U.S. v. Carolene Prod. Co., 304 U.S. 144, n.4 (1938).

146. The doctrinal basis of the course will change from semester to semester depending on the priorities of the ACLU, but will remain within the larger umbrella of civil liberties and constitutional law.

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courses. Students were taught how the principles of legal writing taught in the first year program were transferable to writing a scholarly paper and to creating public education material. The paper assignment required the students to research their legal issue both in Georgia and across the country in order to identify both the majority and minority trends. Students were required to provide an analysis of their legal issue, identify any federal or state constitutional problems with the current state of the law in Georgia, provide a critique of the law, which focused on whether the legislative purpose was being met and whether the law created unintended consequences or was otherwise inconsistent with public policy, and to provide a recommendation for improvement of the law or an analysis of why the current law was appropriate and constitutional. The public education material assignment consisted of two parts, a written piece and a podcast. The public education material assignment created the opportunity to teach students the need for legal research and analysis even when communicating general legal principles to the public. The written public education assignment required students to write for an audience not usually a focus of law school education the general public. The podcast required students to communicate orally with that same audience. The work produced by the students is also used by the ACLU. The papers are used to update research files and identify issues for the ACLU's legislative agenda. The public education materials are used in the ACLU's community education program. ii. Civil LibertiesH - The Spring Semester Civil Liberties II focuses on the ACLU's legislative agenda. 4 7 Students choose an issue from the ACLU's legislative agenda. The faculty member and the ACLU staff work to identify those issues on the agenda that are most likely to have bills introduced in the current legislative session and are conducive to the educational goals of the course. The assignments that the students must complete during the semester

147. The ACLU of Georgia's legislative agenda features bills and resolutions filed by members of the Georgia General Assembly and offers an assessment of the legislation's potential impact on the fundamental rights and freedoms guaranteed by the Georgia and U.S. Constitutions.

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are all placed within the context of the legislative agenda on which the student is working. The overall goals of the Civil Liberties Seminar II are to have students follow legislation introduced into the Georgia General Assembly and to lobby on behalf of the ACLU's legislative agenda. Students also come to understand how the ACLU's legislative agenda complements its litigation strategy, the relationship of the ACLU to the legal community, and the importance of the ACLU's community education program. A secondary benefit of Civil Liberties II is that students see and understand how the General Assembly operates and the sometimes messy process that occurs behind the scenes at the legislature. Many of the assignments in Civil Liberties II mirror those of Civil Liberties I. Because students work on the ACLU's legislative agenda, the students are required to register as lobbyists for the ACLU of Geor ia and comply with all reporting requirements for lobbyists.48 As registered lobbyists for the ACLU, the students' client was the ACLU. Because the course focused on legislation and the client was the ACLU, the authors determined that to require the students to perform client intake at the ACLU's office was not consistent with the parameters of the course. The students in Civil Liberties II, however, were unanimous in their end of the semester critique of the course that spending time at the ACLU office and doing client intake would have been a beneficial experience. Students stated that understanding the intake process would have allowed the students to have attained a better understanding of how the priorities on the legislative agenda are set. Thus, although client intake is not listed as an assignment, it will be included as an assignment in future offerings of the course. 149 First, students are required to choose an issue from the ACLU's legislative agenda. Students are required to follow all legislation introduced into the Georgia General Assembly on their chosen topic for the entire legislative session. Students must attend committee hearings and coordinate with other ACLU lobbyists on strategies to communicate with

148. O.C.G.A. Â§Â§ 21-5-1-76 (2009). 149. BEST PRACTICES, supra note 1, at 121 (recommending studentteacher collaboration in designing course objectives).

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legislators." 0 Students also shadow one of the ACLU's attorney lobbyists."' Second, students draft committee hearing testimony. The testimony is presented in class in a simulated committee hearing. Alumni, who are currently members of the Georgia General Assembly, ACLU staff and JMLS faculty act as committee members. Students receive formative feedback from everyone acting as a committee member. Students receive information, from legislators with experience in receiving information at committee hearings who were able to discern good presentation as well as provide information on how to best frame the message to reach the most legislators, from ACLU staff who are able to test the testimony against ACLU protocol and strategy, and from faculty who are able to comment on the doctrinal soundness of positions taken. Moreover, the ACLU does not present committee testimony unless that testimony has been vetted. Thus, the classroom simulations replicate the type of in-house vetting that an ACLU attorney would use in preparing committee testimony.15 2 If a bill the student is following goes to hearing and the student has prepared and vetted committee hearing testimony, the student has the opportunity to present the testimony at the actual committee hearing. Third, students submit periodic updates on the status of the legislation they were following. These updates are incorporated 150. The ACLU of Georgia's legislative program consists of a team of lobbyists, a community organizer and constituents - lobbyists who are trained in legislative advocacy. The ACLU of Georgia monitors legislation proposed by members of Georgia's General Assembly and attempts to influence legislation by meeting with legislators, testifying at legislative hearings, creating and distributing fact sheets that identify the strengths and weaknesses of legislation in a civil liberties context and mobilizing constituents to contact their legislators. 151. This requirement was added at the request of the students. Students stated that because the legislative process is so chaotic, it would have been helpful to have watched an experienced lobbyist navigate the system. See BEST PRACTICES, supra note 1, at 121 (recommending student-teacher collaboration in designing course objectives). 152. Students were informed that ACLU attorneys use the same process of preparing committee testimony, thus reinforcing for students that what may appear as expert practice in public required the attorney to practice and seek critique from colleagues prior to performance.

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into the public Legislative Report Card published by the ACLU of Georgia on its web site and distributed to legislators during By the People Days. By the People Days are held weekly at the state Capitol when the Georgia General Assembly is in session. They provide an intensive training session for constituents to learn the logistics and most effective techniques for communicating with elected officials, followed by an opportunity to implement the newly developed skills by talking to legislators about issues from the ACLU of Georgia's agenda that are the most important to them. NGOs with missions that include ACLU of Georgia priority issues are invited to attend with their members and supporters, take advantage of the training and present their legislative agendas. 153 Approximately 500 constituents participate in By the People Days each year and rely upon the ACLU of Georgia's Legislative Agenda to inform their activism. Students are encouraged to attend as many By the People Days as possible. Most importantly, the students see their work in use, being relied upon by ordinary people. Fourth, students write a research paper and prepare a fact sheet.15 4 The research paper and fact sheet, which is a form of public education material, provide the same opportunities as the research paper and public education material assignment in Civil Liberties I.15 The research paper for Civil Liberties I focuses on one bill that the student has followed throughout the semester and includes a discussion of the current status of Georgia law on the legal issue, a description of and analysis of how, if passed, the bill would change Georgia law, an analysis of the constitutionality of the bill under both the U.S. and Georgia Constitutions, an analysis of whether the bill will create unintended consequences or is otherwise inconsistent with public policy, and a recommendation for improvement of the law or an analysis of how the bill is appropriate and constitutional. In addition, the students present a synopsis of 153. NGO partners include Amnesty International, Planned Parenthood of Georgia, the Georgia Rural Urban Summit, Feminist Women's Health Center, the NAACP-Georgia and the People's Agenda. 154. Fact Sheets prepared for legislative advocacy summarize the substance of the legislation, highlighting the impact of legislation and ask for specific action to support or defeat the legislation. 155. See supra text accompanying note 139.

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their research paper to the ACLU of Georgia's Legal Committee.15 6 d. FundamentalKnowledge and Skill - Task 1 The issues on the ACLU's legal agenda that the students work on determine the doctrinal parameters of the Cognitive Apprenticeship. The authors recognized that in addition to substantive knowledge of the law, students required additional knowledge and skills to perform the tasks assigned for the semester effectively. For Civil Liberties I, where students would be working on litigation, it was recognized that the student and the ACLU client would likely come from very different backgrounds and thus, the students would need to acquire cultural competency before the student would be allowed to have client contact. Acquiring cultural competency would require students to acknowledge, identify, and deconstruct their own cultural assumptions; be aware of the manner in which cultural assumptions are present in non-verbal communication; and learn cultural awareness. Cultural competency was a prerequisite to effective client communication and client representation. For Civil Liberties II, the cultural competency was not the ability to go into an unknown neighborhood of a different socio-economic class, but the ability to communicate with legislators and to understand the legislative process. Cultural competency, although not legal doctrine, is still part of the fundamental knowledge and skill necessary for the practice of law (Task 1). Cultural competency, however, cannot be taught through lecture or the Socratic Method. The best method of teaching cultural competency is through role play, which is part of the Practice Apprenticeship. It was also determined that part of the fundamental knowledge and skills the students needed included lessons on attorney/client 7privilege, work product doctrine, and confidentiality.s These areas were identified by determining

156. The ACLU of Georgia's Legal Committee is a group of practicing attorneys who evaluate potential cases, recommend the best cases for impact litigation and volunteer the firm resources and staff to support the ACLU of Georgia's legal department. 157. Students sign the same Confidentiality Agreement required of ACLU

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what actions the students could take that might harm the client or expose the ACLU to harm, including reputational harm. The underlying doctrine of each of these areas was taught in class, along with an explanation of why these areas were important and how the issues might arise within the context of the students' work. In addressing these issues, the class module was designed to integrate the Cognitive Apprenticeship (the legal rules the students need to know) with the Practice Apprenticeship (how the issues would arise in practice and how the student should respond to the issue). In addition, because the legal rules of attorney/client privilege, work product doctrine, and confidentiality are premised on public policy, there is ample opportunity to address the Ethical-Social Apprenticeship within this module. The student needs to acquire the basic doctrinal knowledge for the litigation or legislation at issue. The doctrinal knowledge was taught in a number of ways. Students were provided with reading material, both social science material and case law, on the doctrinal area. Also, guest speakers who are experts in the area, were used. Guest speakers included not only practitioners in the substantive area, but non-lawyer experts - former plaintiffs, forensic nurses, or others with knowledge of how the law affected the ordinary person. The guest speakers were chosen for their ability to humanize the law, to provide context - the narrative stories, to identify unintended consequences of the law and to provide practical solutions to remedy unintended consequences based on their own areas of expertise. Guest speakers also assisted students to develop cultural competence. According to at least one student, "hearing the experiences of the speakers who had been doing for years what we were expected to do in one semester was a great way to prepare us for what lay ahead of us."' In Civil Liberties II, for students to identify the unintended consequences of legislation and to formulate recommendations, students need to know the rules of statutory construction, how to apply the rules, and how to draft legislation. Students are introduced to this knowledge by both the faculty member staff and volunteers. 158. Email from Civil Liberties Seminar Student, Atlanta's John Marshall Law School, to Kathleen M. Burch, Associate Professor, Atlanta's John Marshall Law School (Jul. 17, 2009) (on file with author).

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teaching the course and by an attorney from the Georgia General Assembly's Office of Legislative Counsel. Students are also assigned a text on the legislative process, which is used to both introduce students to the legislative process and as a reference for statutory construction. 2. Assessing Student Performance The Civil Liberties Seminar is a graded course and, thus, student assessment is required both for the purpose of the student's learning and for the purpose of determining a final grade. Because the purpose of the course is to provide students with the opportunity to develop the skills and knowledge needed for the practice of law, assessing students with a traditional final exam is not appropriate. A formative assessment model is used. Recognizing the amount and nature of the work the students perform throughout the semester, approximately one-half of the student's grade is based upon performance of assigned tasks. The other one-half of the student's grade is based upon the Students are provided multiple student's written work. opportunities for feedback on the work performed in the course. While the authors presume that students have a base of knowledge and skill upon which to build, the authors consciously create opportunities to teach students how to transfer the knowledge and skill learned in other law school courses and apply that knowledge and skill in the Civil Liberties Seminar. For example, Civil Liberties I provides the opportunity to apply the student's knowledge of the doctrine of standing to the case on which the students were working. In both courses, opportunity is available to explain to students how the skills learned in their legal writing courses were transferable to the required research paper. For each assignment, students are provided with written instructions, which detail the requirements of the assignment and identify the relevance of the assignment to the course and to the practice of law, and with a grading rubric that outlines how the assignment will be graded. In addition, to the extent relevant and practical, students are provided instruction on how the knowledge and skills obtained in other courses apply to the assignment, including specific strategies for transferring the knowledge and skill to the new setting.

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For each written assignment, students are provided with an opportunity to perform the assignment, receive feedback, revise their work, and then submit their work for purposes of a grade. Feedback on written assignments is in writing and received from both the JMLS faculty member and the ACLU attorney. For each assignment which requires the students to perform a task, to the extent possible, the students are provided the opportunity to practice the task in a simulated environment before performing the task in a real world setting. For work performed in simulations, students receive oral comments from the JMLS faculty member, the ACLU attorney, and other members of the bar who are present. Students watch each other's performance and are able to provide peer review.

IV.

BENEFITS TO THE

ACLU

OF GEORGIAl 59

The Civil Liberties Seminars enhance the ACLU of Georgia's ability to identify new clients. Civil Liberties I students meet with potential clients and conduct interviews using specialized questionnaires that elicit facts relevant to cases being considered for litigation. In the fall semester, the capacity to interview potential clients, who had contacted the ACLU with an interest in a case, increased ten-fold with the assistance of students. 60 A review of interview notes from many families enabled the litigation team to select the most appropriate clients for participation in the litigation in an efficient manner that would have taken months without student assistance.

159. Although the focus of this article has been on the benefits of the Civil Liberties Seminars to the students and secondarily to the ACLU, the faculty members who teach in the seminars receive benefits as well. The Carnegie Report assumes that law faculty are experts in the practice of law, but to maintain expertise requires practice. The Civil Liberties Seminars provide those who teach it the opportunity to continue to develop their expertise in the practice of law and to use that expertise to train the next generation of lawyers. 160. The case assigned to Civil Liberties I students has a litigation team comprised of more than twenty-five attorneys, paralegals, community organizers and administrative professionals with offices in New York, Washington, D.C. and Florida. Only one staff attorney and community organizer with the capacity to meet regularly with potential and current clients were located in Georgia.

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Student participation also enabled the ACLU of Georgia to conduct in-person interviews with potential clients rather than telephonic interviews or mailed questionnaires. In-person interviews are the preferred method for communicating with potential clients because they allow for comprehensive fact gathering, immediate assessment of the ACLU's ability to meet the client's needs with the proposed litigation, and opportunities for the ACLU of Georgia to offer community-based resources to address legal concerns outside the scope of litigation. No legal expertise is required to conduct these interviews, but an understanding of ACLU of Georgia protocols and ethical requirements for client interaction are required. Meetings with Civil Liberties Seminar students are one of the first interactions potential clients have with the ACLU of Georgia. During those initial visits, potential clients develop a sense of the ACLU of Georgia's commitment to addressing issues in their communities and the organization's ability to meet their legal needs. Students serve as the official representatives of the ACLU of Georgia and establish the foundation of the relationship that must exist between individual clients and The professionalism NGOs for effective representation. exhibited by the students during interviews solidifies the ACLU of Georgia's credibility in the community, a benefit that is immeasurable. Civil Liberties I students provided the ACLU of Georgia with the manpower needed to maintain regular contact with the large group of plaintiffs involved in a complex class-action lawsuit. The students made weekly calls and visits to clients to provide them with updates on the progress of the lawsuit and prepare them to meet discovery obligations, including depositions. Visits were important to keep the legal team informed of changes in circumstances clients experienced during the course of the lawsuit. Regular communication with the client also helped to build the attorney-client relationship among the parents and students involved in the case and the ACLU of Georgia. The doctrinal expertise developed through the Civil Liberties Seminars enhanced the ACLU of Georgia's ability to develop action plans to address emerging civil liberties issues. The thorough legal analysis of issues presented in student research papers serves as the basis for evaluating issues in the development of strategic action plans. Historically, the ACLU

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of Georgia has been reactionary, with litigation coming as a response to public outcry, outrageous government behavior, or newly enacted legislation. Examining the issues before a crisis occurs allows for the development of a plan that extends beyond litigation, coordinates the effort of other ACLU affiliates, considers media strategies and identifies ways to incorporate communities in a manner that has the greatest impact. While such a comprehensive approach to civil liberties issues is always desirable, it is not always possible with limited staff resources and impending deadlines. The expertise provided by the students allows the ACLU of Georgia to be a leader on important civil liberties issues and develop new priorities for action. The development of public education materials created by the Civil Liberties seminars included fact sheets, podcasts, brochures, issue summaries, best practices, guides and hearing testimony. These materials benefited the ACLU of Georgia in two ways. First, public education materials increase the ACLU of Georgia's ability to offer the public substantive responses to requests for information. The ACLU of Georgia receives approximately 300 requests for assistance each month. Many of the requests relate to legal issues outside of the ACLU of Georgia priorities and others are simply requests for information. Limited resources do not allow for the ACLU of Georgia to provide comprehensive responses to every inquiry. The ACLU of Georgia uses public education materials created by its national office.' 6 1 The material is drafted in a way to provide for general applicability in all states. The public education materials researched and designed by the students augment the ACLU of Georgia's growing library of state specific materials that are responsive to concerns of Georgians. The newly developed public education materials are distributed by regular mail and email thus providing those in need with substantive responses to inquiries and building public confidence in and good will toward the ACLU of Georgia. Public confidence in the ACLU of Georgia is important because

161. The ACLU Know Your Rights Brochures can be found on the national ACLU website at www.aclu.org (enter search term "Know Your Rights").

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impact litigation depends upon the willingness of the individuals who act as plaintiffs and trust the ACLU of Georgia to advocate for their individual rights. Second, the public education material are an important part of our community organizing work, facilitating workshops, training seminars, town hall meetings, and community forums throughout the state. Printed materials are always needed to accompany community activities to meet the variety of learning styles of participants and to encourage individuals to share the information with others in the community. While the ACLU of Georgia reaches many communities in person, the ACLU of Georgia also provides informational materials to a variety of groups whose activities intersect with one or more of the ACLU's priority issues. These groups include churches, neighborhood associations, child-welfare groups and others who do not share the ACLU's mission but appreciate the ACLU perspective on civil liberties issues. Having public education materials available to distribute upon requests allows the ACLU of Georgia to share its message with a wider audience and makes us better coalition partners for future activities that advance our mission. An anticipated long-term outcome of the Civil Liberties Seminars is to create a new group of lawyers who understand the importance of the ACLU's work and are inspired to contribute to that work as volunteers. The ACLU of Georgia's legal victories are a result of an ongoing collaboration between ACLU staff attorneys and volunteer attorneys acting as legal committee advisors, co-counsel with staff attorneys, and cooperating attorneys in ACLU sponsored cases. Competent, skilled attorneys with a commitment to civil liberties will always be needed. The authors' hope is that when students who have participated in the Civil Liberties Seminars are practitioners considering pro bono activities, their experiences will lead them back to the organization that has served as the guardian of liberties for the last ninety years, the American Civil Liberties Union. V. CONCLUSION Atlanta's John Marshall Law School's partnership with the ACLU of Georgia in the design and implementation of the Civil Liberties Seminars upon sound pedagogical principles has

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resulted in the integration of the Carnegie Reports' Three Upon completion of the Civil Liberties Apprenticeships. Seminar, students have participated in a professional community that is engaged in public service, have come to understand the interrelatedness between the community and the law, and have acquired skills for the practice of law. The students work furthers the core mission of the ACLU and empowers the community to take action to protect civil liberties. The students themselves are empowered. At the completion of the Seminar, the students have the confidence, the skill, and the knowledge to know that they can competently represent clients when they graduate.

TEACHING LEGAL WRITING AT THE UNIVERSITY OF THE WITWATERSRAND LAW CLINIC SHAHEDA MAHOMED* AND PHILIPPA KRUGER**

I. INTRODUCTION

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II. THE UNIVERSITY OF THE WITWATERSRAND LAW CLINIC TEACHING MODEL

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108 ....................................... A. History and Development ..... 110 ...................... B. CurrentModel and Practices. C. Writing Skills Taught in the PracticalLegal Skills ........ 114 ...................................... Program 1. 2. 3. 4. 5. 6. 7. 8.

.................................. Client Statement ..... ............................... Letter Writing ..... .................................. File Notes .......................................... Pleadings .................................... Briefs to Advocates ............................................. Opinions ....... .............................. File Reports .................................. Case Assignment

D. Challenges

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116 118 120 121 122 123 123 124 124

........ 125 ........................ 1. Assessment Criteria. ................................. 125 2. Language Barriers ....................................... 126 3. Specialization * Adjunct Professor, University of the Witwatersrand. (BA, LLB, LLM) Professor Mahomed is an admitted attorney and the Director of the Wits Law Clinic. She is presently researching and writing towards her Doctorate in Clinical Legal Education. ** Adjunct Professor, University of Stellenbosch. (BA, LLB) Professor Kruger is a practicing attorney, notary and conveyancer admitted to practice in 1981. She was the Co-Director at the Wits Law Clinic from 1993 to 1996 and the Director from 1996 to 1999. She is presently a clinician at the Wits Law Clinic.

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4. Student Numbers III.

RECOMMENDATIONS

IV. CONCLUSION

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1. INTRODUCTION The fact that studies have shown that traditional legal studies result in a "dulling of students [sic] motivation and altruistic values"' clearly indicates a need to "illuminate legal education." 2 One method of doing this is to introduce clinical legal education methods and the interactive forms of learning associated with it when teaching substantive and procedural law to law students. 3 In South Africa, a number of universities established clinical legal education programs 4 in the 1970's: first at the University of Cape Town and soon thereafter at the University of the Witwatersrand and University of Natal.' These clinical programs were established to increase access to legal services for the poor and vulnerable as only limited state legal aid facilities were available at the time. As a result, "[i]n a developing country such as South Africa where there are vast economic and social differences between rich and poor, and where the majority of the population does not have access to 1. Lawrence S. Krieger, InstitutionalDenial About the Dark Side of Law School, and Fresh Empirical Guidance for Constructively Breaking the Silence, 52 J. LEGAL EDUC. 112, 114 (2002). 2. Id.

3. David McQuoid-Mason, Keynote Address at 8 th Annual Learning in Law Initiative: Using Your Imagination to Light Up Knowledge, Skills and Values for LLB Students: Clinical Legal Education and Effective Lessons (pt. 1) (Jan. 5, 2006), available at http://law.gsu.edu/ccunningham/LegalEd/SouthAfrica-McQuoid-MasonLILI-Ptl.htm. 4. Clinical legal education programs are also sometimes referred to as law clinics. 5. Willem De Klerk, University Law Clinics in South Africa, 122(4) SALJ 929, 930 (2005); Danny Wimpey & Shaheda Mahomed, The Practice of Freedom-South African Experience 2 (2006) (unpublished manuscript, on file with authors).

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proper legal services, law clinics take the form of legal aid clinics and deal predominantly with poverty law matters."6 It was only in the late 1980s and early to mid-1990s that most clinical programs began to recognize the academic value of such programs. This realization was motivated by an increase in the development of state legal aid systems,7 the accreditation of law clinics according to the terms of the South African Law Society,' funding received by universities from the Attorneys Fidelity Fund specifically for the educational development of clinical programs, 9 and the establishment of the Association of University Legal Aid Institutes ("AULAI") whose primary objective remains to promote clinical programs in South Africa.1 o 6. David McQuoid-Mason, Teaching Social Justice to Law Students The South African Experience, in through Community Service: TRANSFORMING S. AFR. U. 90-91 (P.F. lya et al. eds., 2000); see also N. Franklin, The Clinical Movement in American Legal Education, 1(2) NULSR 61 (1986) (Clinical programs in the United States of America began in a similar way. In the 1960s, with an increase in anti-war demonstrations and an increase in poverty, students committed themselves towards changing the system.). 7. The obligation on the State to provide adequate access to justice was enforced by the enactment of the South Africian Constitution. S. AFR. CONsT. 1996 §§ 28(1)(h), 35. 8. The South African Law Society is considered the governing body for all practicing attorneys. This Society prescribes rules and regulations about attorney conduct and practices. Law clinics are accredited according to the terms of sections I and 3(1)(f) of the Attorneys Act 53, 1979 and Rule 115A of the Rules of the Law Society of the Northern Provinces, which deals with accreditation and certification of legal aid clinics. Attorneys Act 53 of 1979 §§ 1, 3(1)(f); RULES OF THE LAW SOC'Y OF THE N. PROVINCES R. 115A at available (2004), http://www.northernlaw.co.za/content/view/105/128/#PART16. 9. The Attorneys Fidelity Fund is a statutory body with the primary responsibility of protecting the public from theft of their trust funds by Fund, Fidelity Attorneys attorneys. http://www.fidfund.co.za/pages/naturetext2.htm (last visited Jul. 8, 2009). Id. at It also funds some practical programs at law schools. http://www.fidfund.co.za/pages/legaledutext2.htm (last visited Jul. 8, 2009). In 1988, the Attorneys Fidelity Fund agreed to provide funding to university law clinics affiliated with AULAI. Presently each university clinical program receives 210,000 rand per annum for the development of student skills. De Klerk, supra note 5, at 931. 10. De Klerk, supra note 5, at 930 (AULAI was formed in the mid 1980s

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At present, nearly all universities in South Africa have established clinical legal education programs." Clinical legal education programs are defined as "lawyer-client experience by law students under law school supervision for credit towards the law degree."' 2 These programs provide a platform for the teaching of various skills that lawyers require in order to practice law efficiently and effectively. These skills include, amongst many others, interviewing skills, statement taking, drafting of various legal documents, communication skills, trial advocacy and practice management skills. The purpose of this article is to identify and discuss various types of legal writing skills that are taught at the University of the Witwatersrand Law Clinic ("Wits Law Clinic"). A reflection on the challenges that we experience whilst teaching these skills will be discussed and recommendations proposed. II. THE UNIVERSITY OF THE WITWATERSRAND LAW CLINIC TEACHING MODEL' 3

A. History and Development The clinical legal education program at the University of the Witwatersrand was initiated in 1969. Like all other clinical programs in South Africa it started as a response to the political and social circumstances of the country at the time. It was a dark time in the history of our country when the Apartheid Policy of the Nationalist led government was at its height. Black for the purpose of representing and promoting law clinics in South Africa); see also Wimpey & Mahomed, supra note 5, at 1. 11. David McQuoid-Mason, Law Clinics at African Universities: An Overview of the Service Delivery Component with Passing References to Experiences in South and South-East Asia, 2 J. FOR JURID. Sci. 9 (2008)

(special issue). 12. COUNCIL ON LEGAL EDUC. FOR PROF'L RESP. (the leading clinical

organization in the United States that was established in 1968); see also De Klerk, supra note 5, at 929; McQuoid-Mason, supra note 11, at 2. For the purpose of this paper, clinical legal education refers to the teaching of law students in a real-client environment through simulation exercises and plenary lectures for credit towards a law degree. 13. Shaheda Mahomed, United in Our Challenges - Should the Model Used in Clinical Legal Education be Reviewed, J. FOR JURID. Sci. 58-59 (2008) (special edition).

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and white people led vastly segregated lives. By and large, black people were poor, minimally educated and unable, and in many instances forbidden, to break from this disadvantaged state. They were voiceless and too poor to engage legal representation to assist them with life's challenges. As stated by De Klerk, "the establishment of the early clinics was generally inspired by a desire to serve the poor rather than the educational value of clinical programmes."' Initially, students from the University offered legal aid assistance at the Johannesburg Legal Aid Bureau, one of very few non-governmental legal aid offices. They also ran their own legal aid clinic in a so called "colored"" township, Riverlea, which is south of Johannesburg. These offices were advice offices rather than law offices. Students' assistance was voluntary, and there was limited professional supervision.1 6 The motivation for this experience was the promotion of access to justice rather than for any pedagogical purpose. The work undertaken by students was limited to paralegal work, such as advising clients and writing letters on a restricted basis. Students who participated in the clinical program received no credit towards any courses in their law degrees. In 1973, a law clinic was established on the University campus, and the clinical services offered by students were incorporated into a course called Practical Legal Training. This course was an elective, credit-bearing module. The Campus Law Clinic (as it was then known) continued to operate on a limited scale, mainly as an advice office. In the very late 1980s and early 1990s, the Campus Law Clinic transformed itself from a paralegal advice office into a full fledged law office. Students in their final year, with the exception of a select few who were eligible to undertake a research report in its stead, were obliged to serve a year in the law clinic for which they would receive credit. 14. De Klerk, supra note 5, at 930; see also Wimpey & Mahomed, supra note 5, at 2. 15. In terms of the Population Registration Act 30 of 1950 ยง 1(3), a "colored" person means a person who is not a white person or a native. The Population Registration Act was one of the most extreme Acts of the Apartheid Era. 16. Ellison Khan, A Review of South African Legal Education in LEGAL AID INS. AFR. 147-48 (1974).

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In the late 1990s, Practical Legal Studies (as it is now known) was promoted to a compulsory, credit-bearing course for all final year law students. The Wits Law Clinic (as it is now known) is a respected law office that has been involved in many precedent-setting cases now cited in our courts. Prior to 2000, the Wits Law Clinic o erated as a general clinic. Within that model, each clinician would ensure that the student pairs would receive a variety of cases so that each student would be exposed to different facets of the law and the different skills involved with each facet. For example, each student would receive at least one labor matter, thus exposing the students to negotiation skills, and each pair would receive a family matter which ensured that students had drafting experience. However, this model posed several challenges, including the fact that clinicians often felt that they were inexperienced to deal with certain matters. In response to these challenges, specialized clinics were set up in January 2000.18 At present, we have the following units of specialization: family, labor, delict, 19 urban evictions, refugee and a general unit which concentrates on consumer and contract law. B. CurrentModel and Practices Presently, Practical Legal Studies is taught using a combination of the real-client teaching model, 0 simulation exercises, tutorial sessions and plenary lectures. The real-client teaching model provides students an opportunity to learn through practice. Brayne best describes this model as one in which "the clinic is based in the law school (hence 'in-house') and the unit is offered, monitored and controlled in-house too. The clients are real, with problems requiring actual solutions (hence 'real-client'). The client base may be selected from 17. For the purpose of this paper, a clinician is an admitted, practicing attorney employed at the university to teach students practical skills in a clinical setting. 18. For further discussion on specialization at the Wits Law Clinic, see Willem De Klerk & Shaheda Mahomed, Specialisation at a University Law Clinic: The Wits Experience, 39(2) DE JuRE 306 (2006). 19. Delict is also commonly referred to as the Law of Torts or Personal Injury claims. 20. Mahomed, supra note 13, at 53-70.

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the general public at large or from a section of the public. .. ."21

Simulation exercises are problem exercises designed by clinicians to resemble real life situations. Students engaging in these exercises are required to act like lawyers and participate in role play. Such exercises are used when teaching trial advocacy and statement taking. Compulsory tutorial sessions are held on a weekly basis with the student pairs. During these tutorials, client files are discussed, and clinicians comment on students' draft documents and assess the documents on a formative basis. During plenary lectures, the clinician teaches matters relating to the substantive law, the drafting of documents, professional management, ethics, numeracy skills, interviewing skills, statement taking, trial skills and social justice. Practical Legal Studies is described as a credit-bearing, compulsory, in-house specialized program2 2 for all law students in their final year of study. To ameliorate the burden of large numbers of students for the clinician, students are paired with partners and work together in teams. 23 Student pairs are allocated to one of eight clinicians 24 and work closely with that clinician. 25 As all the clinicians have specialized knowledge in a particular area of law, students participate in the allocated units for the duration of the academic year. Clients are seen on a "first-come-first-served" basis on different days for each unit. 26 Individual clinicians are responsible for managing their 21. HUGH BRAYNE ET AL., CLINICAL LEARNING IN YOUR LAW SCHOOL 12 (1s ed.

LEGAL

EDUCATION:

ACTIVE

1998). 22. See David McQuoid-Mason, The Organisation, Administration and Funding of Legal Aid Clinics in South Africa, 1(2) NULSR 189 (1986). It was proposed that developing specialized clinics may help reduce the volumes of cases. Initially, when the specialized units were introduced at the Wits Law Clinic, clinicians believed the same. However, over the years, the volume of cases continues to increase. 23. In 2008, there were 308 students registered for the course; in 2009, 232 students registered for the course. 24. Not all the clinicians at the Wits Law Clinic are permanent employees of the University as some are full-time grant-funded members of the staff. 25. The present ratio of student to clinician at the Wits Law Clinic is, on average, 30:1. This ratio is not ideal. See De Klerk & Mahomed, supra note 18, at 308. 26. Client appointments are not made for the initial consultation. Clients simply walk into the clinic and are screened accordingly. However, this has

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weekly clinic intake sessions where students screen members of the public for suitable cases.2 7 Case loads are allocated to each student pair, and all professional activities on the files are monitored closely during the weekly tutorial sessions. 28 Students are formatively assessed continuously during clinic sessions as well as during tutorials. A student's summative assessment is comprised of a written test on law and procedure, 29 a drafting test, 30 an oral exam, 3 1 a written assignment,32 a portfolio assessment 33 and a trial advocacy assignment. 34 The portfolio consists of a collection of client contributed to the large numbers of clients that are consulted with on a daily basis. Each clinic operates on a different day except the family and refugee clinics, which both operate on Mondays at different times. Clients for whom files are not opened are advised or referred elsewhere. 27. On average, the clinics screen between thirty to fifty people per working day including student vacations. Suitable cases will include matters that have merit. The client must also meet a means test as prescribed by the Law Society of South Africa. Attorneys Act 53 of 1979 Â§Â§ 1, 3(l)(f); RULES OF THE LAW SoC'Y OF THE N. PROVINCEs R. 115A (2004), available at http://www.northernlaw.co.za/content/view/105/128/#PART16 (providing details on the means test). 28. As a result of the large number of clients that are screened, student case loads average between five and ten files per student pair per year. Although forty-five minutes have been allocated for weekly tutorials, the time spent with the students may vary depending on the complexity of the files. 29. This test was introduced in 2008. During the first teaching block, students learn substantive law and procedure specific to their unit of allocation. At a planning meeting held in November 2007, clinicians felt that this test was necessary to improve the students' level of knowledge in the specialized field of their unit. 30. This test seeks to assess students' ability to draft legal documents and their understanding of legal ethics. 31. Oral examinations are conducted once a year by two clinicians sitting together. Students are assessed on their portfolios and on the rules of ethics that govern professional practice. 32. Students are required to attend any court proceeding, observe a case being conducted and, thereafter, write a report on the matter. 33. A file assessment or portfolio assessment entails the allocation of a grade based on the file work completed by the student over the course of the year. 34. The practical teaching of trial advocacy has always proven to be a challenging experience at the Wits Law Clinic. This is primarily due to the fact that we have large numbers of students with limited time and resources

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files with which the students are engaged. Each client's file generally is made up of sub-files that contain copies of client statements, file notes, pleadings, research material, copies of letters faxed or posted, draft copies of such letters and any other documents relevant to the matter. The portfolio assessment includes evaluations of the following: quality of statements, analysis of the problem, ability to assess and plan strategy, execution of strategy, drafting skills, verbal communication skills and student attendance and participation in the course. Most writing skills are assessed in terms of this component. The pie charts below illustrate the summative assessment: Assessment Grid 5%

10% 10%

a Written test on law and procedure a Drafting test

o Oral exam 15%

0 Written assignment

50%

mPortfolio assessment o Trial adiocacy

The portfolio assessment, worth 50% of the total assesment, is comprised of the following evaluation:

available. However, we have found that, should students be assessed on an ad hoc basis, they do not apply themselves sufficiently. In 2009, it was decided that a summative grade would be allocated with the hope that students will take this task seriously.

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a Quality of Statements 7.50%

1 Analysis of the proble

o Ability to assess the strategy

o Execution of strategy mDrafting skills

7.50%

7 Verbal communication skills mSense of Responsibility

C. Writing Skills Taught in the PracticalLegal Skills Program

Students participating in Practical Legal Studies are taught a number of writing skills: the drafting of client statements, letters, file notes, case reports, briefs to counsel and legal opinions. Some of these skills are taught in a formal setting while many are learned incidentally, as the real-client case work unfolds. When drafting any legal document, the author must be mindful of the purpose of the document. Is its purpose to inform or persuade the recipient or does it have another purpose? This is best noted by Palmer, Crocker and Kidd as "when writing you have to be certain that you are able to express yourself unambiguously. Your watch word must always be to state what you mean. If you have written a sentence, reread it and ask yourself if it reflects exactly what you want to say. If not, rewrite it until it does." 35

Students often feel compelled to use language that is contrived and overly formalistic, especially if English is their second language. When reviewing student draft letters for example, it

35. ROBIN PALMER ET AL., BECOMING A LAWYER: FUNDAMENTAL SKILLS FOR LAW STUDENTS 33 ( 2 nd ed. 2006).

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may be necessary to confront the student with the demand "Tell me what you are trying to say." Then, request that the student frame the letter in the same manner. As mentioned, writing skills are assessed continuously as a part of the Wits Law Clinic model. 36 At every weekly tutorial, the clinician evaluates and comments on the written work of the students and makes suggestions for improvement. Often, the nature of the case demands attention that cannot wait for the allotted weekly tutorial. This may require drafting to be evaluated on an ad hoc basis. Also, the enthusiasm of the student may demand attention to her respective draft document outside of allocated tutorial times, and these requests generally are accommodated. No standard approach to the method of formative assessment has developed, nor has there been much discussion about this aspect of assessment. Clinicians do not receive any training in this or any other regard. Each clinician has her own style that is informed by her own baggage in terms of her respective training, beliefs and personalities. For instance, one clinician would rewrite or dictate the corrected draft, whereas another would insist that the student capture the directed and discussed alterations in a redraft until correct. This type of assessment remains a challenge that we are seeking to address. Students receive a summative grade 37 for the drafts included in the sub-file, such as the pleadings and letters drafted. They also receive a summative grade for the written drafting test. Each clinician is required to prepare a drafting skills question for the students participating in her respective unit. Clinicians generally require students to draft documents that students are exposed to on a regular basis; students in the family unit might 36. Franciscus Haupt & Shaheda Mahomed, Some Thoughts on Assessment Methods Used in Clinical Legal Education Programmes at the University of Pretoria Law Clinic and the University of the Witwatersrand Law Clinic, 41(2) DE JuRE 7 (2008) ("Formative assessment is used during the learning experience to provide feedback to students so that they have the opportunity to improve."). 37. Id. ("Summative assessment is used to measure the extent of learning and for grading purposes after completion of a piece of work or module.").

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be required to draft a Particulars of Claim,38 while students in the refugee unit might be asked to draft a letter of appeal.3 9 Clinicians in the respective units prepare their own criteria whilst assessing. Therefore, this method of assessment may not be considered uniform or objective, as each clinician could apply a different standard. A further challenge that we experience is that some students may be asked to draft a document that is less complex by its very nature. For example, students in the family unit may find it easier to draft a Particulars of Claim compared with the letter of appeal in the refugee unit, where additional statutory requirements or research on conditions in different countries might be necessary. These challenges will be addressed later in this article. 40 There is little doubt that there is much work to be done to train the clinicians on the standardization of these assessment methods within our own clinic. At the Wits Law Clinic, students are exposed to the drafting of many documents including client statements, letters, file notes, pleadings, briefs to Advocates, opinions, file reports and case assignments. Each of these drafting exercises is evaluated and discussed below. 1. Client Statement Students participating in clinical legal programs that have adopted the real-client teaching model generally are required to draft client statements as they take on cases throughout the course of an academic year. A client statement is a document written on behalf of a client detailing the nature of their legal problem. Statements are written in the first person, as if the client were writing it and must contain all the essential information regarding the client, the facts of the case in chronological order, the names and addresses of all role players, 38. "Particulars of Claim" is a statement of claim in which the Plaintiff pleads the material facts relied on in her claim or claims. 39. A letter of appeal would be an appeal against a rejection of refugee status. 40. See discussion infra Parts II.D.1-4.

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the jurisdiction of the court and the cause or causes of action, insofar as a theory of the case is developed at this early stage. Students must document the client's instructions, setting out the outcome desired. All details of any previous representation and copies of any documents already filed in court must be noted and obtained. A comprehensive statement is fundamental to the successful conduct of a case. It is the source of a number of legal documents including a letter of demand, the Particulars of the Claim, the letter setting out the defense, the letter or formal notice regarding settlement and other documents that may be pertinent to the case. When drafting the statement, it is essential to visualize not only the documents to be drafted but also the actual trial or motion proceeding itself.4 ' One generally forms a preliminary theory of the case at this first consultation stage. The lawyer will then have in mind the facts that would need to be proven or disproven and the evidence required to do so. At the Wits Law Clinic, statement taking skills are introduced to students at a plenary lecture early in the first teaching block. At this lecture, students are made aware of the following fundamentals relating to statement taking: effective communication with the client, identifying the legal problem and identifying exactly what the client's instructions are with regard to the matter. Students draft statements on behalf of clients whenever a file is opened. As students work in different units, the contents of the statements will depend on the nature of the matter. For example, students working in the labor unit dealing with a dismissal matter will need to ensure that they have all the relevant details of the client's employment situation, including the name of the employer, the reason for dismissal, whether there was a hearing preceding the dismissal, 41. For example, the taking of a comprehensive and probing statement could mean an asylum seeker from Zimbabwe who tells the student that he came across the border because "life is bad under Mugabe" is interpreted as being an "economic migrant" rather than a refugee who has fled from the tyranny of Mugabe's regime when, in reality, the asylum seeker has a well founded fear of persecution, which qualifies him as a refugee in terms of the Refugee Act 130 of 1998.

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and so on. Students in the family law clinic consulting with a client who wishes to institute divorce proceedings will be required to obtain details of the client's family scenario relating to the type of marriage, the date of marriage, details of the minor children, and so forth. The statement, or rather a draft thereof, is written by the student as described in the previous paragraph. This statement is read by or to 42 the client for verification and then signed by the client. Students present the statements drafted to the clinician during tutorials. The draft of the statement is then commented upon and corrected if necessary. Clinicians generally comment on the usage of grammar and sentence construction. They also discuss the facts of the matter, preliminary theories of law and what evidence will be required to prove the client's case. The statements are then filed in the client's file. As mentioned, students' statements are subject to formative assessment on a continuous basis. Students receive a summative grade worth 7.5% for the statements drafted under the auspices of the portfolio assessment. The criteria for the assessment are individually determined by the clinicians. The authors submit that this can be improved upon.4 3 Students improve on the drafting of statements as the year progresses. Evidence of this is noted from the drafts that students file in the sub-files. Good, efficient statement taking is the sine qua non for the successful conclusion of the client's mandate. 2. Letter Writing

"Writing a letter is one of the most basic and essential lawyering skills and it is one which must be mastered by the young lawyer as soon as possible."" If a lawyer cannot communicate, she cannot practice efficiently. Lawyers write to 42. This is often done when clients experience language barriers or are illiterate. 43. See infra Part III. 44. PATRICK STILWELL ET AL., CLINICAL LAW IN SOUTH AFRICA 91 (1 st

ed. 2004).

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"persuade, inform, record, demand, enrage or calm the reader."4 5 Poorly written communication may have serious consequences and may prejudice the client's case. For example, by failing to deny each allegation in a letter or plea received, the client may be taken to have admitted a specific allegation, and the case may be compromised. There are as many different ways to write a letter as there are situations that demand it. No matter the content, there is a certain basic format that is acceptable by the private and public world at large.46 The format of a letter should include the address of the sender, the name and address of the receiver, and the date. The manner of posting must be noted and highlighted. The letter should be addressed appropriately for the attention of the receiver. The letter must include the heading, the body and an appropriate conclusion to be submitted. At the Wits Law Clinic, students are taught the theory of writing a basic letter at a plenary lecture. During this lecture, students are presented with a letter that has been very badly drafted and are asked to identify and correct the errors.4 7 Students continue to learn how to draft appropriate letters throughout the course of the academic year. The client demand for legal services ensures that each student has the opportunity to draft any number of different letters that would serve different purposes. The clinician corrects and discusses each student-drafted letter during the weekly tutorial. Every draft, including any necessary redrafts, is kept in a sub-file in the client's file. The various clinic units require different approaches towards drafting letters. Students engaging clients in the delict unit write letters of demand that comply with the relevant legislation. Students in the refugee unit write letters on behalf of clients who are asylum seekers and who have interim status, informing members of the South African Police of their temporary status and directing that these clients' should not be 45. Id.

46. Id. at 92. 47. See Appendix A for a copy of the letter used in this exercise.

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harassed or arrested. The family unit might write a letter proposing settlement of the various disputes between the parties. Letters drafted are assessed continuously for formative purposes. For summative purposes, students' draft letters are assessed under the auspices of the portfolio assessment. The Wits Law Clinic has not designed specific criteria by which these letters are assessed. Clinicians may consider the format, style, grammar and whether the letter achieves the purpose for which it is written. A criteria reference grid is clearly essential. The authors of this paper have considered this a challenge and have designed such a grid which is included under our recommendations.4 3. File Notes49 "The file note is used to record everything that happens on the file, for instance, as telephone calls are made and received; correspondence sent and received; pleadings sent and received; research done; and expenses incurred. One should always remember to always record the date and nature of attendances as well as the time spent." so At the Wits Law Clinic, in keeping with the established practice of proper file management, students are urged to note every attendance 5 1 on the running sheet. The running sheet is a piece of paper that is attached to the front cover of the file, containing the name of the client, the nature of the matter, the file number allocated to it by the law clinic, the name of the writer and provision for the date and a description of the attendance. File notes may also be recorded on a separate page and kept in the client's file in a sub-file. In this event, the file note must be referred to on the running sheet. Not only may such a not be vital for the successful conduct of the case, but

48. See infra pp. 129-30. 49. STILWELL ET AL., supra note 44, at 66 (sometimes file notes are referred to as the note sheet, counter page or a file update sheet). 50. Id. 5 1. Id.

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also critical when a file may be passed from a student in one year to another in the next year or from one candidate attorney to another as they move from unit to unit. The clinician must be able to pick up a file and know what its current status is from a quick perusal of the running sheet. Students are introduced to the concept of file notes and their importance at a plenary lecture and this teaching is advanced during tutorial sessions. The actual drafting of the notes is illustrated by the clinician during tutorial sessions.5 2 For example, a student may not think it necessary to record that a telephone call was made to the opposing attorney and a message was left. This attempted communication may prove to be vital information in the later conduct of the case. Clinicians generally offer this example during tutorials to teach and reinforce an important lesson. Student file notes are also continuously assessed for formative purposes. As file notes form part of the student's portfolio, a summative grade for these notes will be allocated. However, again, no formal criteria have been designed for the assessment of these notes, leaving clinicians to use their own discretion. The authors submit that this form of assessment is not acceptable and that a standard criteria reference grid must be designed and applied. 4. Pleadings Students at the Wits Law Clinic work in pairs and are allocated to a specific unit of specialization. Students in each unit will have different experiences with regard to the nature and variety of the pleadings they will draft, and their experiences will differ even within a unit. For example, students in the family unit will draft a Particulars of Claim in a divorce matter. Students in the delict unit encounter matters such as civil claims for damages for unlawful unrest and

52. From experience, students need to be reminded continuously about the format of a file note. They have a tendency simply to scribble points of conversation with clients or other persons involved in the matter on any piece of paper.

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detention, police brutality and medical negligence. Litigation is conducted in different fora, demanding not only the meticulous drafting of pleadings but also the requisite notices in preparation for trial, such as expert notices and summaries of expert evidence. Student drafting of pleadings and notices are assessed continuously for formative purposes. A summative grade worth 10% is allocated for the drafting test. Individual clinicians, who are responsible for setting the test questions, determine the criteria against which students should be graded. Additionally, a 7.5% grade is allocated for documents drafted for the portfolios. Similarly, individual clinicians determine their own criteria when assessing students' drafts in their portfolios. Once again, the imminent danger that this system presents is that there is a lack of standardization or uniformity in assessment. 5. Briefs to AdvocateS53 The General Council of the Bar54 resolved that each member of the Bar is obliged to perform 20 hours of pro bono service per annum. With this in mind, it usually is not difficult to obtain the services of willing and able advocates. Advocates, aslo known as Counsel, are court specialists and are briefed by attorneys to appear in court and conduct the trial or motion proceeding, as the case may be, particularly in the High Court. This arrangement allows the students an opportunity to draft briefs for advocates. A brief is an instruction to Counsel and consists of a cover letter summarizing the client's case and the instruction to be carried out. It also includes copies of documents such as client statements, pleadings and, at times, a student's draft of a document that the advocates might be requested to settle, such as an affidavit. It is critical that all the relevant information is given to Counsel in order to prosecute the case successfully, and the

53. STILWELL ET AL., supra note 44, at 16-19. 54. GENERAL COUNSEL OF THE BAR OF SOUTH AFRICA, UNIF. RULES OF PROF'L CONDUCT ยง 5.12.4 (2007).

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challenge for students is to collate the information effectively and comprehensively. Not all students at the Wits Law Clinic are exposed to this form of drafting, as it is case specific. Students who draft briefs are assessed on a formative basis at the time the brief is collated. They receive a summative grade under the auspices of the portfolio assessment as the brief would form part of the client file. No specific criteria have been designed to assess the drafting of these documents as clinicians apply their own, individual criteria on a case by case base. 6. Opinions Students are often requested to provide simple advice to clients. Under such circumstances, students are asked by clinicians to draft an opinion for clients. This is most often done if it appears, either after the first consultation or during further processing of the claim, that the client's claim has no merit and little prospect of success. A comprehensive opinion should contain a summary of the relevant facts, the outcomes the client would like, the applicable law, strategies that can be utilized to achieve the outcomes, the challenges and the prospects of success. Opinions are written in the form of a letter. Students may also draft an opinion in a particular case in the form of an interoffice memorandum for their own benefit and that of their supervisor. Opinions drafted are assessed formatively and summatively on a case to case basis. 7. File Reports Students are required to draft a file report in every file in which the client's mandate has not been completed by the time the student has completed the academic year. This document must contain a summary of the facts, the issues, the applicable law and the strategies that may be adopted to achieve the desired result. The file report is then placed in the file for easy reference for the clinician, candidate attorneys and future students who may take over the file. Not all students are

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required to draft this document, as they may have finalized all their cases or the report is not prescribed by the clinician. The authors are of the view that such a report should be compulsory on every file as it would force the students to apply their knowledge and skill to all the issues already addressed and those that may be outstanding. 8. Case Assignment"5 Each student is required to observe an actual case at any court5 6 during the year and then draft a written assignment. Although students are not formally taught how to draft this document, a guideline is provided. The idea is to allow students the opportunity to write freely within specified boundaries.5 7 This exercise obliges students to attend court in their own time, normally during their vacation. The benefit of this exercise is that each student is required to record, in writing, what he or she has observed in the actual court room. This assignment is for summative purposes and constitutes 10% of the student's year mark. The criteria used whilst assessing the assignment is dictated by the student's compliance with the requirements as noted in Appendix B. D. Challenges Teaching legal writing skills has proven to be a very challenging experience. There are a number of problems that we have encountered over the years, the most pertinent of which include assessment of writing skills, language barriers, specialization and student numbers. Recommendations in respect to each of these challenges will be addressed below.5 8 55. Haupt & Mahomed, supra note 36, at 27-28. 56. Although we allow students to write this assignment on any case observed, we do recommend a preference that students observe a criminal case. Students at the Wits Law Clinic do not receive any practical experience in criminal law for a number of reasons, including logistical challenges and the limitations in respect of skills learning. Therefore, we consider the drafting of the case note an attempt to address these challenges. 57. These boundaries are noted in Appendix B. 58. See infra Part III.

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1. Assessment Criteria Whilst we aspire to teach all our students drafting skills within the real-client, specialized environment, little if any attention has been cast on developing objective criteria for assessment. Since the introduction of specialization at the Wits Law Clinic, the development of criteria used to assess student writing skills has been the responsibility of individual clinicians. To date, little has been done to standardize this process. 2. Language Barriers The clients who attend the Wits Law Clinic requiring advice are indigent. They are historically disadvantaged and, as a consequence, speak very little English. They are poorly educated and many of them are illiterate. South Africa has eleven official languages, and most of our clients prefer to converse in their mother tongue. In addition, many of our clients are asylum seekers from all over Africa, including Somalia, Sudan, the Democratic Republic of Congo and Zimbabwe, and they converse in languages unfamiliar to South Africans, such as French and Shona. The challenge is to guide the student in asking the correct questions to illicit and identify the client's problem and advise the client of her rights and options in a language that the client understands. The majority of the students themselves do not speak English as their first language. Therefore, there is the double challenge for the clinicians to teach second language English speakers how to interpret and convey complex issues to clients in a foreign language in a manner that is simple enough for the clients to understand. Presently, the Wits Law Clinic does not formally address this problem. Indirectly, we request students and any other members of the staff who are multilingual to interpret on behalf of clients. A further challenge that we experience is that once students arrive at the law clinic, they start using written language that, up to this point in their lives, they have never used. The language that lawyers use, both inside and outside the court room, often serves only to obscure issues even more. For some reason,

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lawyers reinforce this obfuscation by using language that shades the meaning to the person on the street, in language that only they and their colleagues might understand. It seems that the temptation to use formalistic, pompous and archaic language is irresistible for most students. The problem is compounded when the recipients of the correspondence, our clients, are illiterate or semi-literate and where their own first language is not English. This problem is not unique to our clinic and is addressed by teaching the students the importance of using simple language. 3. Specialization59 The Wits Law Clinic operates within a real-client teaching model, which offers a rich and diverse source of drafting material. This method has its limitations as we are aware students in different units, and even students in the same unit, do not receive the same exposure to legal drafting. For example, students in the delict unit, eviction unit, labor unit and family unit receive intensive training in the drafting of documents required for litigation, whereas students in the refugee unit and consumer unit may not. We, therefore, run the risk that students will experience an imbalance in learning, with some students drafting substantial documents and others not. 4. Student Numbers60 The large numbers of students also inevitably impact the quality of drafting we are able to teach, particularly in the plenary lectures. The large numbers also inhibit the handing out of further assignments, as marking would become challenging for already overburdened clinicians. By and large the best way to teach drafting is during the oneon-one tutorial. It is very intensive and time-consuming. The clinicians generally follow an "open-door" policy and are willing to share skills on an ad hoc basis. This works well for the students but places clinicians under additional pressure. 59. De Klerk & Mahomed, supra note 18, at 306-18. 60. Mahomed, supra note 13, at 60.

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III. RECOMMENDATIONS

In South Africa, most law degrees do not concentrate on the teaching of writing legal skills as this is considered to be the work of the profession. Clinical legal education programs have therefore become the "catch-net" program incorporating the teaching of these skills. 6 1 However, as most clinical programs are not compulsory at South African universities, students' exposure to writing skills is limited to only those that participate in the course. "[W]orse still, at nearly half of all law schools in South Africa, students can choose to avoid the experience altogether, thereby being allowed to enter the practice of law without ever having seen a client, been inside a courtroom or interviewed a witness." 62 Furthermore, as most clinical programs are only offered in the final year of study, one may question whether it is not a stage too late in the students' academic career to be learning skills such as communication and writing skills. Should the teaching of these skills not be introduced earlier in the curriculum as a compulsory course? It has been suggested that "clinical programs should be split up and repacked into different teaching opportunities and spread over the four year degree. In this way, students early on in the law degree could start with limited exposure to actual clients, building up to the final year where students will be expected to engage in the full legal process. This scenario certainly would ease the congestion in the final year Practical Legal Studies course." 63 It is recommended that the teaching of writing and other skills should not be limited to clinical legal education programs or courses like civil procedure, but rather, should be the

61. See generally Willem De Klerk, Integrating Clinical Education into the Law Degree: Thoughts on an Alternative Model, 39(2) DE JURE 244 (2006). 62. Id. at 244. 63. Id. at 247.

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responsibility of all courses taught in the law degree. 64 For example, students studying Administrative Law could be required to draft legal opinions. At the Wits Law Clinic, the real-client teaching model provides an ideal opportunity for students to learn a variety of writing skills as discussed above. However, this model is not without its challenges. As is noted by Mahomed, "[t]he dynamic on assessing students objectively whilst using the real-client teaching model continues to be a challenge for many. Students consult with a wide range of clients with different cultural backgrounds, languages and literacy levels. Each client has their own set of complex or simple legal problems thus assessing tasks like interviewing and statement taking skills can prove to be a challenge." 65 Considering the above limitations, how can we improve our writing skills program? We recommend that, over and above the training that the university offers to new lecturers, clinicians should undergo an induction program. Such a program would allow clinicians to receive specialized training with regard to teaching in a clinical environment that is diverse, multicultural and multi-ethnic. This program should be developed by experienced clinicians in conjunction with other programs offered at the university. In an attempt to address the challenges relating to assessment and standardization of drafting skills, we propose that all clinicians develop a minimum list of documents that they would require their students to draft in their specialized unit. This list should be discussed with all other clinicians so as to create some sort of minimum standardized list of documents for all students. Furthermore, each clinician should develop a criteria reference grid for all documents that students would be required

64. Cf Swanepoel et al., Integrating Theory and Practice in the LLB Curriculum: Some Reflection, 2008 J. FOR JURID. Sa. 110 (special edition) ("The question of whether law schools/faculties should have a primary duty to prepare law students as best as they can for practice, should be answered in the affirmative. What other reason could there be for the continued existence of law schools/faculties?"). 65. Mahomed, supra note 13, at 65.

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to draft. Again, clinicians should meet to discuss and unify the prescribed criteria allocated for the assessment of drafted documents. We submit that each clinician should keep a diary or record of the students drafting progress at each weekly tutorial. This exercise will ensure that clinicians will be able to identify the extent to which students have improved over the course of the academic year. The authors therefore propose the following as a criteria reference grid for clinicians to assess letters at the Wits Law Clinic: Criteria

5Excellent

4Very

3Good

2Satisfactory

1Poor

Good

Format of

letter

Grammar Content Does it achieve its purpose?

The following criteria reference clinicians whilst assessing file notes:

grid is proposed for

130 Criteria

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4Very

3Good

2Satisfactory

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Good

Format including date and time and author Description of attendance

Teaching writing skills to large numbers of students continues to be our challenge. It may be necessary to consider diluting the program by teaching in larger groups than in pairs as we do at present. We believe that this would be preferable to converting the course to an elective program, as students already receive very limited practical exposure during the rest of the legal curriculum. IV. CONCLUSION

Whilst we consider the attempts we make to expose students to various forms of writing skills commendable, we recognize that there is much to be done to improve upon the Practical Legal Studies course. Our students, many of them from disadvantaged backgrounds, are able to learn better writing skills by drafting a range of different legal documents. Our students are allowed to practice their writing skills on real-client They are matters within a supervised environment. accommodated when mistakes are made, thus allowing them an opportunity to learn from such experiences. We have recorded some of the challenges we experience whilst teaching writing skills and have suggested some changes that we believe will enhance our teaching methods. We are committed to improving our methods and assessment processes.

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Appendix A

Date: 6 March 2002

WITHOUT PREJUDICE

Mr. D. C. Xaba House 3C ORANGE FARM For personal attention: Mr Xaba Per Registered Post Dear Mr. Xaba, RE: YOUR MATTER The consultation with you on 5 ultimo refers. I hereby wish to confirm that I will act on your behalf in your case. You instruct us to do the following: (b) obtain a divorce for you, on the following grounds: (i) that you want custody of the your children (ii) that you will, inter alia, give your wife R100 per month for maintenance so that she will stop bothering you. We would be most grateful if you would be so kind as to let us know whether you managed to obtain any further or other information about your wife, who, the Wits Law Clinic hereby confirms, seemed to have disappeared and left the children with you, which force us to have to apply to the Legal Aid Board for permission to apply to the court for substituted service.

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Where service cannot be effected an any manner prescribed under Rule 17 of the Rules of Court, an application may be made to court for leave to effect service by publication in a newspaper. Such application may be heard in Chambers. A court order will then be sent to the applicant's (your) attorney. You are hereby requested to kindly telephone the students, Mandy and Bradford, who deal with your case on a Monday between 8.00 am to make arrangements regarding the above. Do not even bother to phone at other times, we will not take messages and run after students, you know the names of your counsellors and their times, do not waste our time, the clinic is busy enough as it is. We await to hear from you at your very earliest convenience. Be assured of our best attention at all times. Yours faithfully, The University of the Witswatersrand Law Clinic

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ADendix B Students will be expected to attend court in their own time to observe a case in progress and to write a report on the case. The report shall contain at least the following information: 1. 2. 3. 4.

5. 6.

7. 8. 9.

10. 11. 12. 13.

The parties names and the names of the attorneys representing them; The case number and court in which the matter is being heard; The type of procedure adopted by the litigants (action or motion procedure or criminal trial); A summary of the plaintiff's/applicant's cause of action (or the charge against the accused in a criminal matter) and the facts which the plaintiff intends to prove at trial; A summary of the defendant's/respondent's defense and the facts which the defense intends to prove at the trial; An analysis of the party's pleadings (or in a criminal trial, the statements in the criminal docket) which analysis reveals those issues that are common cause and those issues that are in dispute. A short discussion on who bears the onus of proof of those issues in dispute; Set out the law on which the plaintiff relies for his cause of action; Set out the law on which the defendant relies for his defense; From your observation of the trial of the matter, give a short summary of which witnesses were called to testify and the thrust of their testimony; Mention how these witnesses were cross examined and the thrust of this cross examination; Set out in brief the closing argument of the respective attorneys or counsel; What was the decision of the court and summarize the presiding officer's reasons for judgment; Discuss briefly if you agree with the verdict/judgment, or not.

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This report is a substantial piece of work and is worth 10% of your year mark. Start early to identify a case and make contact with the attorney representing the plaintiff to find out when the matter has been set down.Trials run in the High Court, Labor Court and Magistrate's Court nearly every day. It is suggested that you start by observing a trial in court and then working backwards by looking at the pleadin2s from the court file, to see the issues as pleaded by the parties. Then consider the presiding officer's judgment in the light of the evidence you heard at trial and from a reading of the pleadings. Ask your supervising attorney for help in any aspect of the logistics of this report. The report MUST be typed and shall not exceed 1,500 word. The report must be handed to Winifred by no later than Friday, 2 October 2009.

INTERACTIVE GROUP LEARNING IN THE LEGAL WRITING CLASSROOM: AN INTERNATIONAL PRIMER ON STUDENT COLLABORATION AND COOPERATION IN LARGE CLASSROOMS ROBERTA

I. INTRODUCTION

K. THYFAULT

AND KATHRYN FEHRMAN*

..................................................

136

II. CHOOSING ACTIVE, GROUP LEARNING TECHNIQUES: AN OVERVIEW OF THE SCHOLARSHIP OF COLLABORATIVE AND COOPERATIVE LEARNING ......................................

137

A. Definitions of Collaborativeand CooperativeLearning .................. 139 B. CreatingLearning Groups and Teams ............................141 C. Techniques to Help Ensure that the Exercises are as Productiveas Possible .................................. 143 III. APPLYING COLLABORATIVE AND COOPERATIVE LEARNING TECHNIQUES IN THE LAW SCHOOL CLASSROOM .........................

A. IncorporatingCollaborativeand CooperativeLearning Techniques in the InternationalLaw School Classroom...... B. Collaborativeand CooperativeLearning Exercisesfor the Large Law School Class....................

..... 150 .......... 152

IV. SUGGESTED COLLABORATIVE AND COOPERATIVE LEARNING EXERCISES FOR THE LARGE LEGAL WRITING CLASS ..... ...............

A. Peer Editing ....................................... B. Scrambled Sentences...................... ........... C. Group Legal Research Exercises................ ............. D. Group Writing Exercises ........................ ...... E. Additional Exercises to Use in a Large Legal Writing Class........................... ................... V. CONCLUSION

..........................................

146

154

155 157 158 158 159

......... 164

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I. INTRODUCTION

"A candle loses nothing of its light by lighting another candle."I And the room gets brighter. In April 1997, the deans of the South African law schools agreed that law schools and law teachers should strive to ensure that their students acquire the skills they will need to practice law.2 One way to meet this goal is to incorporate collaborative and cooperative learning techniques into the legal classroom. We have many ways to engage our students and stimulate lifelong retention of the concepts and skills we teach in the legal classroom. One of the most effective ways to ensure that knowledge is thoroughly incorporated is to provide active learning experiences: experiences that allow students to solve problems, complete projects, and discover knowledge and conclusions for themselves. Students learn best by doing.3 This process of inexorably involving students in their own learning processes can be known as "ex Periential learning,"4 "kinesthetic learning"s or "active learning." Within the gamut of experiential and active teaching and learning techniques, two important techniques require that students work together in groups to arrive at a finished product: "collaborative learning" and "cooperative learning" exercises.

* Legal Writing Professors, California Western School of Law, San Diego, California. The authors would like to acknowledge the generous support of the law school in the preparation of this article and their attendance at the APPEAL Conference at the University of Pretoria, Pretoria, South Africa, from July 1 through 4, 2009. 1. Quote by James Keller. 2. Philip F. Iya, The Legal System and Legal Education In Southern Africa: Past Influences and Current Challenges, 51 J. LEGAL EDUC. 355, 359 (2001). 3. LINDA B. NILSON, TEACHING AT ITS BEST: A RESEARCH-BASED RESOURCE FOR COLLEGE INSTRUCTORS 83, 87, 119 (2003); see generally WILBERT J. McKEACHIE ET AL., TEACHING Tips: STRATEGIES, RESEARCH AND THEORY FOR COLLEGE AND UNIVERSITY TEACHERS (9th ed. 1994). 4. NILSON, supra note 3, at 119.

5. Id. at 83. 6. Id. at 87, 127.

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Simply put, these exercises are formal instructional models that facilitate students' learning with their peers. Research has long shown that students who work in small groups learn and retain more than students who are taught by other techniques.' This crucial bit of information has led many scholars and educators to explore a variety of models for supporting and involving students in group learning.9 Part II of this article will provide an overview of the scholarship of collaborative and cooperative learning and the associated definitions and techniques. Part III discusses the application of collaborative and cooperative learning techniques in the law school classroom and special considerations and suggestions for international and large law school classrooms. Finally, Part IV brings together and provides suggestions for collaborative and cooperative learning exercises and techniques This article concludes that for legal writing classrooms. prepares law students to learning and cooperative collaborative successfully meet the challenges of a diverse and changing profession. II. CHOOSING ACTIVE, GROUP LEARNING TECHNIQUES: AN OVERVIEW OF THE SCHOLARSHIP OF COLLABORATIVE AND COOPERATIVE LEARNING For each class session, legal writing teachers determine the

most important knowledge to be conveyed to the students. The type of knowledge to be conveyed varies, sometimes from class to class, sometimes within the same session. The method of delivering knowledge also varies, depending upon the type of knowledge to be conveyed.' 0 Lecturing may be an efficient and effective method when we wish to provide factual knowledge, clarify organization of 7. SUSAN LEDLOW, CTR. FOR LEARNING & TEACHING EXCELLENCE, COOPERATIVE LEARNING IN HIGHER EDUCATION (1999), available at

http://clte.asu.edu/active/clinhighed.pdf 8. BARBARA GROSS DAVIS, TOOLS FOR TEACHING (1993),

available at

http://teaching.berkeley.edu/bgd/diversity.html. 9. NILSON, supra note 3, at 119; see generally THRESHOLD CONCEPTS WITHIN THE DISCIPLINES (Ray Land et al. eds., 2008) [hereinafter THRESHOLD CONCEPTS].

10. NILSON, supra note 3, at 93-95.

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material studied or problem solving methods, provide our own personal or professional view of the material or adapt more complex materials or theories to our students' level.' On the other hand, other methods of teaching are more effective when we wish to facilitate "attitude change, development of thinking and problem solving skills, transfer of knowledge to new situations," raise students' satisfaction with the course, motivate further learning and raise levels of "post course retention of knowledge."l 2 When students struggle with and arrive at new levels of understanding, they are transformed in some sense, not just "taught."" Even when a lecture format is suitable for the educational goals and materials, one must keep in mind that adult students' attention spans are short. They rise for about fifteen minutes, then decrease dramatically until the last few minutes of a lecture.' 4 This finding tells us that lecturing is not the most effective way to convey knowledge. However, few scholars advocate active learning as an exclusive alternative to lectures. Most advocate using both lectures and active learning techniques, depending on the materials to be conveyed and the circumstances or context.' 5 Accordingly, it makes sense to enhance lectures with "group activity breaks" or to sometimes minimize or eliminate a lecture entirely and facilitate learning by providing group leaming experiences: collaborative opportunities and cooperative exercises. To select the best learning opportunities and exercises, it is necessary to first understand the accepted definitions of active, collaborative, and cooperative learning terms. These terms are explored in the next section.

11. Id. at 93, 95. 12. Id. 13. THRESHOLD CONCEPTS, supra note 9. 14. NILSON, supra note 3, at 94; Charles

C. Bonwell & James A. Eison, Active Learning: CreatingExcitement in the Classroom (The Nat'1 Teaching and Learning F., Ed. No. 340272, 1991), available at http://www.ntlf.com/html/lib/bib/91-9dig.htm. 15. DONALD R. PAULSON & JENNIFER FAUST, ACTIVE LEARNING FOR THE COLLEGE CLASSROOM, http://www.calstatela.edu/dept/chem/chem2/Active/ (last visited June 10, 2009).

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A. Definitions of Collaborativeand CooperativeLearning Scholars have defined "active learning," "collaborative learning," and "cooperative learning" in a number of ways.' 6 Legal writers often use the words interchangeably." While "active learning" encompasses all opportunities to learn by doing, "collaborative learning," "cooperative learning" and "team learning" all refer to a "teaching format in which students [interact with each other to] work on a task and learn in small groups."18 While this article focuses on using interactive grouplearning techniques in the legal classroom setting, it helps to be acquainted with some basic scholarly definitions to ensure the clearest understanding of the underlying pedagogy. 1. Active Learning. Students are given activities that encourage them to "reflect on ideas and how they are using them."' Students learn by doing rather than simply listening or reading, and the teacher guides them to explore their own perspectives and values as they incorporate knowledge. 20 2. CollaborativeLearning. Students work together and learn from each other as each student brings his or her own ideas to the process. 2 1 "[T]he label favored in the sciences, applies to a loosely structured coordination between or among students." 22 3. Cooperative Learning. Students participate in activities more structured and planned than those in collaborative learning opportunities. Cooperative learning focuses upon: "(1) positive interdependence among ... participants; (2) individual

16. David R. Arendale, A Glossary of Developmental Education and Learning Assistance Terms, 38 J. C. READING AND LEARNING 10, 13, 14, 16 (2007). 17. Elizabeth A. Reilly, Deposing the "Tyranny of the Extroverts": CollaborativeLearning in the Traditional Classroom Format, 50 J. LEGAL EDUC. 593, 603 (2000). 18. NILSON, supra note 3, at 127. 19. Arendale, supra note 16, at 13. 20. U. KY. TEACHING AND LEARNING CENTER, TEACHING STRATEGIES: ENHANCING STUDENT INVOLVEMENT (1997), http://www.uky.edu/UGS/tlc/topic/teaching3.html. 21. Arendale, supra note 16, at 14.

22. NILSON, supra note 3, at 127.

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accountability ...;

(3)

appropriate

rationale

[Vol. III and

task

purpose .. .; (4) structured student interactions with designated activities rather than free-form discussion; (5) instructor or expert peer facilitation; and (6) attention to development of social skills such as interpersonal communications and Team learning is a "highly leadership development." 23 structured version [of cooperative learning] that thrives more on mutual, positive interdependence than on any other characteristic of cooperative learning."2 4 4. Direct Instruction. The teacher presents substantive material by lecturing or explaining, demonstrating, and managing student activities.2 5 "Based on behavior modification principles, learning activities are sequenced and managed by the instructor to develop progressively more complex skills and knowledge."2 6 5. Facilitating. Students generate "discussion, discovery, and inquiry about academic content." 27 The teacher administers and manages the students' participation. 28 6. Interdependent Learners. These students possess strong interpersonal skills which enable them to work well as teammates in a learning group. 29 The important interpersonal skills most often cited are: "communication, analyzing learning tasks, and self regulated learning to monitor themselves and make adjustments individually and within the learning group." 30 7. Student-CenteredLearning. In individual settings, such as independent study, groups or regular classes, teachers relinquish the locus of control to the students. Teachers give the students substantial control over the topics and means to learn.3 1

23. Arendale, supra note 16, at 16. 24. NILSON, supra note 3, at 127. 25. Arendale, supra note 16, at 19; A.K. ELLIS & J.T. FOUTS, HANDBOOK OF EDUCATIONAL TERMS AND APPLICATIONS 70 (1996). 26. Arendale, supra note 16, at 19; ELLIS & FOUTS, supra note 25. 27. 28. 29. 30. 31.

Arendale, supra note 16, at 20. Arendale, supra note 16, at 20; ELLIS & FOUTS, supra note 25. Arendale, supra note 16, at 21; ELLIS & FOUTS, supra note 25. ELLIS & FouTS, supra note 25. Arendale, supra note 16, at 28; ELLIS & FouTs, supra note 25.

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These definitions help deepen and clarify understanding of the concepts which are used in creating learning groups and teams. B. CreatingLearning Groups and Teams As we choose which subject matter and which exercises best fit our students' learning needs and our own teaching styles, we should keep two things in mind. First, most exercises may require using more than one of the teaching styles (or techniques) defined above. For example, in any of the exercises we choose, we may prefer to facilitate, rather than directly instruct, or allow for student centered exploration. Second, as we guide our students through the maze of learning, especially our first year students, the aspect of effective human communication, and the success of those who master it, should not be underestimated. Meaningful and effective communication requires an understanding of the verbal and non-verbal signals and language of each communicator; otherwise, communication and learning will not be effective or truthful.3 2 For many students, the first year of law school is much like learning a new language. Thus, along with presenting the exercises and explaining the substantive goals of participation, the teacher should also consider drawing the students' attention to differences and similarities of communication styles and channels, guiding the students towards a middle ground of understanding. With regard to the human communication element of group learning, it helps to be aware that certain grading systems, such as the curve, may work in opposition to the best possible outcomes. Some students may view the grading curve as inviting competition rather than cooperation. Thus, some scholars and educational development experts encourage using group learning "only with a criterion referenced grading system," 33 lest they risk undercutting "the spirit of cooperation and the prospect of group success on which cooperative learning relies."3 4 Presumably, forces contrary to the spirit of 32. JOSEPH A. DEVITO, HUMAN COMMUNICATION: THE BASIC COURSE 27 (6th ed. 1994). 33. NILSON, supra note 3, at 133. 34. Id. at 133.

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cooperation are at work in the "real world" of actual lawyering as well, and this understanding raises many more substantial questions about what we are actually teaching law students in regard to civility and civilization. In any event, whether we teach our students to approach the world with trust, suspicion, outcome determinative goals, process orientation, or a spirit of cooperation is not the focus of this article. We accept the precept that most benefits of well managed collaborative and cooperative learning are present regardless of the grading system. No matter what the overarching social philosophy, group learning can foster real changes in how students approach the task of learning and functioning as productive lawyers, including moving from passive to active and interactive participation, changing students' perceptions of the locus of control (who or what is responsible for outcomes that effect lives), creating a sense of community interdependence, looking at classmates as a team and generally fostering more personal relationships with peers and instructors. 35 To provide the students with the optimum benefit from group learning, teachers must attend carefully to the mechanics of carrying out the activities. In all group learning activities, the students and the teacher are part of a classroom community, part of the learning team. Keeping in mind the precepts addressed earlier, it is up to each teacher to decide the size and composition of the groups, the overall goals to be achieved, the schedule and the activity. The teacher must decide how deeply the students will be involved in the administrative decisionmaking and leadership of the work. Once the teacher determines who makes what decisions, then it is up to the decision-makers to decide how the learners will be evaluated, how to reward joint effort, how decisions will be made in the group and what resources are necessary. 36

35. Arendale supra note 16, at 23; NILSON, supra note 3, at 129. 36. Speaking of Teaching, STAN. U. NEWSL. ON TEACHING (Center for Teaching and Learning, Stanford, Cal.) Winter 1999, at 2, available at http://ctl.stanford.edu/Newsletter/cooperative.pdf (citing JANE WESTBERG & HILLIARD JASON, FOSTERING LEARNING IN SMALL GROUPS: A PRACTICAL GUIDE (2004)).

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C. Techniques to Help Ensure that the Exercises are as Productiveas Possible The teacher or facilitator should consistently look for techniques to ensure that the group exercises are as productive as possible. Professor Nilson posits that to gain the best effect from group learning, six essential elements should be carefully integrated: (1) positive interdependence; (2) individual accountability; (3) appropriate group composition, size, and duration; (4) face to face interaction; (5) genuine learning and challenpe; and (6) explicit attention to collaborative social skills.3

Each of these elements provides considerations to allow the groups to work together better, processing in deeper dimensions The teaching and arriving at more effective results. considerations involved in each of these elements are discussed in detail below. 1. Positive Interdependence. Members must feel they need one another, and it is important for each team member to feel personal responsibility for the success of every member of the team. This can be achieved by ensuring that each member has a specific role, by giving each member of the group a specific task or by giving group and individual quizzes to help the process along. 38 2. Individual Accountability. Members of the group should pull equal weight. This can be achieved by allowing peers to write performance evaluations of each other (a few times during the term, if the group is ongoing), by giving individual quizzes or by randomly selecting different students to speak for the group.3 9 The teacher can also encourage equal contribution by handing out tokens for students to put into a group fund when they contribute something the group determines to be of merit and stop contributing when they run out of tokens. 4 0 At least one faculty development expert recommends assigning

37. NILSON, supra note 3, at 129-33. 38. Id. at 130. 39. Id.

40. Id. at 135-36.

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individual homework or preparing a quiz for individual students prior to the group exercise to ensure everyone is prepared.4 ' 3. Appropriate Group Composition, Size, and Duration. The teacher should compose the X oups, keeping in mind the task and context of the project.4 Heterogeneous groups with a variety of opinions, perspectives and value systems can inspire vigorous debate and deepen learning because the students can benefit from each other's understanding.4 3 Further, "slower" students benefit by learning from the "quicker" ones, and the "quicker" students learn better because they have to teach what they know to the rest of the group.4 4 Holding groups together for longer durations often fosters "group loyalty" and refines communication and cooperation skills. Long term groups are also beneficial for long-term tasks.4 5 4. Face to Face Interaction. Face to face interaction is important to developing and maintaining the group relationship. 46 On the other hand, email or other ecommunication may serve the purpose of the group as well and can assist the teacher to keep track of the group's progress.4 7 The teacher should be on guard against the students simply dividing up the tasks and going their separate ways.4 8 The teacher can enhance the group experience and guard against the students simply dividing up tasks by using a combination of face to face interaction and e-communications. 5. Genuine Learning and Challenge. In designing a group learning assignment, either in pairs or groups, the teacher should "pose a genuine challenge that only more than one mind is likely to meet within the given time limit." 49 When pairs or groups are working on a harder task than would be assigned to a student working alone (either because of time or substance), 41. LEDLOW, supra note 7. 42. NILSON, supra note 3, at 131-32. 43. Id. 44. Id. at 131. 45. Id. at 132. 46. JUDY CORNELIA PEARSON & AN & SHARING: UNDERSTANDING COMMUNICATION ch.8 (6th ed. 1994). 47. NILSON, supra note 3, at 132. 48. Id. 49. Id.

PAUL EDWARD NELSON, INTRODUCTION TO SPEECH

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their synergy allows the students to go beyond what they have learned in the course thus far.50 Exercises can be conducted in pairs or groups. Pairing is beneficial because it is difficult for one of a pair to escape full participation, the participants reach agreements more quickly and the pairing process takes less time to administer.5 ' Groups are beneficial to field a diversity of opinion and perspective, to avoid embarrassment to students who are not yet at their peers' levels and a larger group may arrive at a greater depth of understanding arising out of the sheer challenges of finding common ground with more people. 52 6. Explicit Attention to Collaborative Social Skills. These skills are the human communication skills that will serve the students for a lifetime no matter what career paths they choose. The teacher can assist the groups to behave as teams by specifying what social skills will assist the group to complete the project appropriately.53 These social skills may include discussions, peer evaluations, modeling or praising good team behavior and allowing students time to "reflect on and process the quality of the [group's] work."54 The teacher may encourage "listening actively, taking turns in talking, not interrupting, encouraging others, cooperating, sharing resources, being open-minded, giving constructive feedback, tactfully defendin one's views, compromising and showing respect for others."' Preparing our law students to be lawyers is, of course, a multi-dimensional task. Selecting content carefully is one way to prepare the students for the world ahead. It is at least equally important to carefully and wisely choose the methods to convey content.5 6 Because our students face a world in which team and cooperative efforts are most successful, it behooves us to

50. 51. 52. 53. 54. 55.

Id. PAULSON & FAUST, supra note 15.

Id.

LEDLOW, supra note 7. Id. NILSON, supra note 3, at 129-33. 56. See id. at 136.

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provide our students with leaming experiences to cultivate their collaborative and cooperative skills.s7 III. APPLYING COLLABORATIVE AND COOPERATIVE LEARNING TECHNIQUES INTHE LAW SCHOOL CLASSROOM As mentioned previously, legal educators often use the terms learning cooperative and learning collaborative interchangeably."s Professor Reilly has explained that while students in both groups "can critically engage in leaming without direct supervision when given open-ended tasks[,] [c]ooperative learning groups take their direction from the teacher [and] [c]ollaborative learning groups provide their own Professor Reilly suggests that directions and sources."59 cooperative learning is best for novice learners because it is more suited for learning foundational knowledge, while collaborative learning is best for more experienced learners because it requires higher levels of judgment. o Whether they employ collaborative learning or cooperative learning, legal educators have embraced both learning techniques as a means of teaching students the skills they need as practicing attorneys.6 1 In 2007, two comprehensive reports identified ways to improve legal education in the United States.6 2 The Stuckey Report, sponsored by the Clinical Legal Education Association, identified several "Best Practices" for educating law students, including that teachers should "encourage collaboration among students and teachers." 63

57. Id. at 132. 58. Reilly, supra note 17, at 603. 59. Id. 60. Id. 61. A.B.A. SEC. LEG. EDUC. & ADMIS. TO THE BAR, SOURCEBOOK ON

LEGAL WRITING PROGRAMS 42 (Eric B. Easton et al. ed., 2d ed. 2006)

[hereinafter SOURCEBOOK]; Vernellia R. Randall, Increasing Retention and Improving Performance: PracticalAdvice on Using Cooperative Learning in Law Schools, 16 T.M. COOLEY L. REV. 201 (1999). 62. ROY STUCKEY ET AL., CLINICAL LEGAL EDUC. Ass'N, BEST PRACTICES FOR LEGAL EDUCATION: A VISION AND A ROAD MAP (2007); WILLIAM M. SULLIVAN ET AL., EDUCATING LAWYERS: PREPARATION FOR THE PROFESSION OF LAW (2007).

63. STUCKEY ET AL., supra note 62, at 119.

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Collaboration, in this context, included concepts of cooperative learning. 64 The Stuckey Report noted the long history of research showing the positive effects of collaborative or cooperative learning on students. 65 Furthermore, as Professor Dominguez observed, "[t]he research on cooperative learning makes a powerful case that working in small groups promotes students' critical thinking, academic achievement, attitudes toward the course, and understanding of different viewpoints." 66 These positive effects cut across racial, ethnic and gender differences. 67 Collaborative or cooperative learning techniques require the active involvement of all students. Thus, as Buckner reports, minority students participated more because they reported feeling less intimidated than in traditional classroom

settings. 68 Collaborative or cooperative learning techniques promote academic excellence among students because students learn from one another. 69 They teach the students how to function in 64. See David Dominguez, Seven Principlesfor Good Practice in Legal Education: Principle 2: Best Practice Encourages Cooperation Among Students, 49 J. LEGAL EDUC. 386 (1999). 65. STUCKEY ET AL., supra note 62, at 120. 66. Dominguez, supra note 64, at 388 (quoting Gerald F. Hess, Student Involvement in Improving Law Teaching and Learning, 67 UMKC L. REV. 343, 350 (1998) (citing JAMES COOPER ET AL., COOPERATIVE LEARNING AND COLLEGE INSTRUCTION: EFFECTIVE USE OF STUDENT LEARNING TEAMS 1-5 (1990))). 67. STUCKEY ET AL., supra note 62, at 120 (citing Carole J. Buckner, Realizing Grutter v. Bollinger's "Compelling Educational Benefits of Diversity" - Transforming Aspirational Rhetoric Into Experience, 72 UMKC L. REV. 877, 924-25 (2004)); see also Buckner, supra, at 939-46 (describing how author successfully integrates cooperative learning exercises into her first-year Civil Procedure class); Gerald F. Hess, Heads and Hearts: The Teaching and Learning Environment in Law School, 52 J. LEGAL EDUC. 75, 95 (2002) (discussing how cooperative learning allows for diverse

perspectives and diverse learning styles); cf Susan Bryant, Collaborationin Practice: A Satisfying and Productive Processfor a Diverse Practice 17 VT. L. REv. 459, 478 (1993) (describing how collaborative process benefits from diverse viewpoints offered by persons with different perspectives and experiences, such as gender and race). 68. Buckner, supra note 67, at 929. 69. STUCKEY ET AL., supra note 62, at 120; TECHNIQUES FOR TEACHING LAW 132 (Gerald F. Hess & Steven I. Friedland eds., 1999) [hereinafter TECHNIQUES]; Bryant, supra note 67, at 487-89.

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the hierarchy of the workplace they may find upon graduation.7 0 They also increase the students' awareness of the need for As Professor Hess public service and pro bono work." reported, "cooperative learning not only helps students learn, it helps them to build community in and out of the classroom and to develop a greater sense of respect for one another." 72 Collaborative and cooperative learning techniques help students develop the skills they need to become collaborative lawyers. These skills include the ability to develop good Collaborative and cooperative professional judgment. learning techniques also help students develop skills such as "critical thinking, reasoning, and problem solving" and "listening, expression, conflict resolution, negotiation, and consensus building." 74

70. Bryant, supra note 67, at 489. 71. STUCKEY ET AL., supra note 62, at 120; Dominguez, supra note 64, at

393-400. 72. Hess, supra note 67, at 95; see also Paula Lustbader, Teach in Context: Responding to Diverse Student Voices Helps All Students Learn, 48 J. LEGAL EDUC. 402, 414-16 (1998) (discussing the numerous benefits of collaborative learning). 73. Cf ROBERT F. COCHRAN, JR. ET AL., THE COUNSELOR-AT-LAW:

COLLABORATIVE APPROACH TO CLIENT INTERVIEWING AND COUNSELING 7

(2d ed. 2006) (citing THOMAS L. SHAFFER, AMERICAN LEGAL ETHICS: TEXT, READINGS, AND DISCUSSION ToPIcs 114-25 (1985) (citing Aristotle and

others on "practical wisdom")) (Cochran observes that philosophers from Aristotle to modern legal commentators have recognized "that the central characteristic of a good lawyer is the ability to exercise practical wisdom. ... In short, it is the ability to make wise judgments."), Dominguez, supra note 64, at 391-92, and ANTHONY T. KRONMAN, THE LOST LAWYER: FAILING IDEALS OF THE LEGAL PROFESSION 14-17 (1993) (identifying the

"preeminent" element of the nineteenth-century lawyer-statesmen as "the trait of prudence or practical wisdom," a person with "good judgment"), with MARY ANN GLENDON, A NATION UNDER LAWYERS: HOW THE CRISIS IN THE LEGAL PROFESSION IS TRANSFORMING AMERICAN SOCIETY 231 (1994)

(recognizing the need to teach law students both theory and "practical reason"). 74. TECHNIQUES, supra note 69, at 132; see also Janeen Kerper, Creative Problem Solving vs. The Case Method: A Marvelous Method Where Winniethe-Pooh Meets Mrs. Palsgraf 34 CAL. W. L. REV. 351, 353 (1998) (discussing that the case method of teaching does not teach skills attorneys are required to know; "[p]articularly in the early stages of representation, good lawyering requires skills of listening, fact investigation, interest

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Finally, the skills students learn through collaborative and cooperative techniques in law school, which often require them to work in a cross-cultural environment, help to prepare the students for working in a diverse work place.7 ' As Professor Susan Bryant observed, some "cross-cultural differences go to the essence of defining the good lawyer, and others relate to the most effective way to communicate and solve problems. By educating lawyers about how to engage in joint work, lawyers can develop work habits that promote the synthesis of these diverse perspectives." 7 6 Thus, it is through collaborative and cooperative learning techniques in law school that students learn the skills that are necessary to be a collaborative lawyer: listening, planning and the ability to work with a diverse group of people to successfully complete a project. Nevertheless, utilizing collaborative and cooperative learning techniques in the law school classroom does pose challenges. Law students are so used to working individually, and to focusing on their individual grades, that they are often reluctant to engage in collaborative or cooperative exercises.77 For example, Professor Evenson gave students in her experimental comparative law class four questions to answer as part of a cooperative activity.7 8 She found that rather than working together to resolve the questions, the students divided the questions so each student in the group answered just one question. 79 Professor Evenson addressed this problem by clarification, negotiation, and planning."). These skills are necessary because, under the collaborative model of lawyering, the lawyer and client work together. JAMES E. MOLITERNO, ETHICS OF THE LAWYER'S WORK 130 (2d ed. 2003). Together the lawyer and client identify the client's problem, devise a plan to resolve the problem and implement the plan. Id. at 130; see also COCHRAN ET AL., supra note 73, at 7-8 (lawyer and client must jointly deliberative and examine client's alternatives to arrive at a solution); Kerper, supra, at 367-70 (employing creative problem solving strategies the lawyer and client work together to "SOLVE" the problem). 75. Bryant, supra note 67, at 460. 76. Id. 77. Carole Silver, Adventures in Comparative Legal Studies: Studying Singapore, 51 J. LEGAL EDUC. 76, 85-86 (2001). 78. Dorothy Evenson, To Group or Not to Group: Students' Perceptions of CollaborativeLearning Activities in Law School, 28 S. ILL. U. L.J. 343, 378 (2004). 79. Id. at 378.

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crafting assignments that required all students to be engaged within the group.80 She found that the more successful projects required students to work together to create hypotheticals, to create a group exam, to take a group exam or to create a business to manufacture and sell hats bearing the school's logo. 8 ' As Professor Bryant notes, students must learn more than just how to work together. 82 They must learn the skills necessary to ensure that every student in the group is encouraged and allowed to participate.8 3 Students must accept that by fully engaging in the activity the group will produce a better result than the individuals working alone. 4 In addition to learning to work together as a group, law students must learn to work on group exercises without violating any policies the school has in place to prohibit plagiarism or academic dishonesty.8 5 This concern can be addressed by discussing the school's academic policies and by giving the students clear directions for each assignment. 86 Introducing collaborative and cooperative learning techniques in the international classroom poses its own unique challenges. Nevertheless, these challenges can be overcome to provide rewarding learning experiences, even in the large classrooms common in many parts of the world. A. IncorporatingCollaborativeand CooperativeLearning Techniques in the InternationalLaw School Classroom Incorporating collaborative and cooperative learning techniques can be particularly challenging in international settings where law school classes are large and/or students may 80. Id. 81. Id. at 379; see also Reilly, supra note 17, at 595 (describing successful

implementation of collaborative exercise in a Constitutional Law class, but noting students' initial concern that half their grade would be based on a group project). 82. Bryant, supra note 67, at 486. 83. Id. at 486-87. 84. Id. at 486. 85. SOURCEBOOK, supra note 61, at 42. 86. Id. at 42-43; see LEGAL WRITING INST., LAW SCHOOL POLICY V. PROPER ATTRIBUTION (2003), available at http://Iwionline.org/publications/plagiarism/policy.pdf (identifying plagiarism policies for adoption by law schools).

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not be accustomed to interactive learning. In many countries, law students are more accustomed to sitting in large classes listening to lectures and memorizing material for exams.8 7 Nevertheless, educators have recognized the value these techniques offer in preparing international students for law practice. Therefore, collaborative and cooperative learning techniques have been successfully introduced around the world. For example, in 1994, Professor Critchlow wrote of his experiences teaching in Romania.88 He described how students spent many hours each week listening to lectures, taking detailed notes of those lectures, memorizing the civil codes and then preparing for oral exams.8 9 The students rarely questioned authority or engaged in classroom discussions.9 0 Nevertheless, Professor Critchlow successfully integrated skills exercises into a small comparative law class. These exercises required the students "to work together in problem-solving and advocacy." 9 1 In one such exercise he engaged his students in a jury selection exercise in a criminal case involving a Gypsy defendant. 92 The exercise allowed Professor Critchlow to teach his Romanian students about the Anglo-American justice system, and it prompted the students to reflect on broader human rights issues, including racial bias. 93

87. See, e.g., Brooke K. Baker, Teaching Legal Skills in South Africa: A Transition from Cross-Cultural Collaboration to International HIV/AIDS Solidarity, 9 LEGAL WRITING: J. LEGAL WRITING INST. 145, 152 (2003) (describing legal education in South Africa as consisting of listening to "black letter lectures" and memorizing content for exams); cf Mark Wojcik, Overcoming Challenges in the Global Classroom: Teaching Legal Research and Writing to InternationalStudents, 3 LEGAL WRITING: J. LEGAL WRITING INST. 127, 132 (1997) (describing the "culture shock" international students face when studying law in the United States because international students, especially students from civil law countries, are accustomed to listening to lectures and to not challenging authority, and thus, do not ask questions during class). 88. George A. Critchlow, Teaching in Transylvania: Notes on Romanian Legal Education, 44 J. LEGAL. EDUC. 157 (1994). 89. Id. at 162. 90. Id. 9 1. Id.

92. Id. 93. Critchlow, supra note 88, at 162.

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More recently, in 2004, Professor Caroline Nicholson, from the University of Pretoria, wrote of the challenges she faced teaching legal history to a demographically diverse and educationally under-prepared student body. 94 The challenges were compounded because of the large class sizes, which Professor Nicholson described as "the enemy of effective learning." 95 Professor Nicholson called for a change to the way students had been taught.96 She concluded that lecturers should change the way they teach to meet the needs of these students. 97 This change required lecturers to move toward "studentcentered learning" and to adopt a "collaborative approach to learning." 98 Professor Nicholson recognized that "[a] collaborative approach to learning encourages a healthy relationship between student and lecturer which will be characterized by increased participation and active engagement with the study material." 99 She concluded that when students actively engage in the learning process, they begin to see how their classroom learning relates to their future legal careers. 00 B. Collaborativeand CooperativeLearningExercisesfor the Large Law School Class Hess and Friedland, drawing on their own experiences and the experiences of other law professors, suggest several collaborative or cooperative learning exercises that can be introduced into the law school classroom. 0 1 Three exercises specifically address large classes. In each instance, the students work together throughout the semester on hypotheticals or other problems the professors pose in their classrooms.1 02 94. Caroline Nicholson, The Challenges of Teaching Legal History to a DemographicallyDiverse and Educationally Under-PreparedStudent Body, 11 MURDOCH U. ELECTRONIC J. L. (Dec. 2004), available at http://www.murdoch.edu.au/elaw/issues/vlln4/nicholsonl 14_text.html. 95. Id. at 40. 96. Id. at 3 8. 97. Id. 98. Id. at TT 38-39. 99. Nicholson, supranote 94, at 39. 100. Id. at144. 101. See, e.g., TECHNIQUES, supra note 69, at 137-48; see also Hess, supra note 67, at 95-96. 102. TECHNIQUES, supra note 69, at 142-45.

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For example, Professor Gary Minda, from Brooklyn Law School, divides his students into groups of three.' 0 3 He then poses a question to the entire class and gives the students three minutes to discuss the problem in their groups.' 04 At the end of three minutes, a group spokesPerson summarizes the group's discussion for the entire class." Similarly, Professor Rick Nowka, from Louis D. Brandeis School of Law University of Louisville, uses cooperative learning exercises in his large classes.' 06 Professor Nowka divides his students into groups of five to seven, taking care to ensure gender and racial diversity within each group to the extent possible. 0 7 He seats group members near one another.' 0 8 Then, throughout the semester, the students will break into their groups to discuss concepts that have been difficult for them or problems and hypotheticals Professor Nowka poses to the class.' 0 9 The discussions usually last no more than ten minutes. 1 o At the end of the discussion, each group summarizes its discussion for the entire class."' Finally, Professor Steven Friedland, from Nova Southeastern University She ard Broad Law Center, divides his students into groups of two. 2 He then poses a question to the class and asks each student to write down their answer to the question." 3 The students then discuss their answer with their partner, or they critique their partner's writing, if the assignment is a writing 103. Gary Minda, Three Minute Discussions, in TECHNIQUES TEACHING LAW 142-43 104. Id. at 142-43.

FOR

(Gerald F. Hess & Steven I. Friedland eds., 1999).

Id. 106. Rick Nowka, Cooperative Learning Groups in a Large Class, in TECHNIQUES FOR TEACHING LAW 143-44 (Gerald F. Hess & Steven I. Friedland eds., 1999). 107. Id. at 143-44. 108. Id. 109. Nowka, supra note 106, at 143. 110. Id. I11. Id. 112. Steven I. Friedland, Pair Participation in Large Classes, in TECHNIQUES FOR TEACHING LAW 144-45 (Gerald F. Hess & Steven I. Friedland eds., 1999). 105.

113. Id. at 145.

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assignment.11 4 The students also role play while working in pairs, taking on the roles of a client, a witness, or opposing counsel.11 5 Following the group role plays, one group is called upon to role play before the entire class." 6 Working in pairs, students can also explain to one another the rules from the cases they have been studying."' Thus, the students learn whether they understand the rule, and they learn how to communicate the rule." 8 None of these three learning exercises should be seen as "better" than the others. Each can be incorporated into the classroom at different times during the course. Factors such as time and class size may impact a teacher's exercise selection. For example, it may take less time for pairs of students to discuss a question than for each student to write out an answer and discuss the answer with a partner. On the other hand, if writing is a goal of the course, then the teacher might select exercises that require the students to write. Therefore, the teacher's specific teaching goals will guide the selection of the group activities. IV. SUGGESTED COLLABORATIVE AND COOPERATIVE LEARNING EXERCISES FOR THE LARGE LEGAL WRITING CLASS

Collaborative and cooperative learning exercises are particularly effective in legal writing classes, even classes with large numbers of students. As Hess notes, "[w]riting exercises can be in or out of class, formal or informal, graded or ungraded." 1 9 Hess and Friedland suggest several additional collaborative and cooperative exercises that can be used in a legal writing class. 2 0

114. Id. 115. Id. 116. Id. 117. Friedland, supra note 112, at 145. 118. Id. 119. Hess, supra note 67, at 103, n.83. 120. TECHNIQUES, supra note 69, at 145-46 (citation exercise), 241-43 (scrambled sentences) and 245-53 (peer editing).

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A. PeerEditing Professor Kathleen Magone, from the University of Montana School of Law, uses a peer editing exercise.' 2 1 Peer editing involves students reviewing and commenting on other student's writing.122 Students can peer edit any writing assignment: a completed memorandum or brief; one section of a document, such as a statement of facts or a paragraph synthesizing the rules that will guide the analysis; or a transactional document, such as a trust, a complaint, a contract, or a settlement agreement. 123 A successful peer editing exercise requires that the students be given a structured worksheet or checklist to follow while doing the peer edit.124 We, the authors, have successfully used peer editing exercises in first year and upper division legal writing courses. In each instance, students exchange papers to act as a peer editor for their partner. We give the students a detailed worksheet to guide them as they edit. We design the worksheet questions so students are required to look for the lessons we teach within a particular assignment. For example, we ask the peer editor to note whether the writer began paragraphs with topic sentences and to circle passive voice so the writer can determine whether active voice would be better. We have also used a variation of a peer editing exercise that requires students to work in groups rather than pairs. For this exercise, students use materials from prior lectures and assigned readings to draft a specific section of a legal memo or brief: a Statement of Facts, a Question Presented or a Brief Answer. The students submit their drafts to the professor a few hours before class, either electronically 25 or in a paper copy.' 26 The 121. Kathy Magone, Peer Editing, in TECHNIQUES FOR TEACHING LAW 245-53 (Gerald F. Hess & Steven I. Friedland eds., 1999). 122. Kristin K. Davis, Designing and Using Peer Review in a First-Year Legal Research and Writing Course, 9 LEGAL WRITING: J. LEGAL WRITING INST. 1, 1, n.2 (2003). 123. See, e.g., Magone, supra note 121, at 245. 124. Magone, supra note 121, at 245-53; Davis, supra note 122, at 7-9, 16-18. 125. The students submit papers electronically to our course websites through The Westlaw Educational Network ("TWEN"). 126. The school maintains a drop box in the main classroom building where students can submit legal writing assignments. The box contains a

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professor randomly reviews samples from the submitted papers, looking for examples that illustrate points that were made in a prior lecture or in the readings. Several examples are pulled and copied for each class member, with any identifying information such as names or student numbers removed. In class, the students are divided into groups and given the task of critiquing the samples. One student is designated the reporter and is required to record and report on the group's findings. The professor walks around the room as the groups discuss the samples, to answer questions and to ensure that the conversations stay on track. The class then reconvenes to discuss the samples. During this discussion, the designated group reporters point out what the individual groups found that the authors did well and what needs improvement. Working as a group, the students find, in the student examples, the lessons we presented in our lectures and in the assigned readings. As we walk around, we hear the students discussing the concepts from an earlier lecture or the readings. The students who are having an easier time with this part of the assignment often explain the concepts to the students who are having a more difficult time. Finally, students have reported, anecdotally, that this exercise is very helpful because it utilizes the specific writing assignment they are currently working on, and it helps them see how their work compares to the work of others. Peer editing exercises offer many benefits for students. The students are able to see weaknesses in their papers that they would not have seen on their own and then address those weaknesses before the papers are submitted for a final grade.' 27 The result is that the students turn in better work, which makes grading easier for legal writing professors.12 8 In addition, peer editing teaches students the writing, editing and cooperation

slot for each legal writing class. 127. Magone, supra note 121, at 245; Davis, supra note 122, at 10-12. 128. Magone, supra note 121, at 245; Davis, supra note 122, at 12; cf Bryant, supra note 67, at 473, 488-89 (noting that "[d]iversity in perspective can be invaluable" because it helps an attorney generate ideas for a brief and helps an attorney know whether the arguments in the brief are persuasive and discussing how, in a clinic setting, a student helped her co-counsel change the tone of a document so it became more persuasive).

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skills they need for law practice.12 9 It also teaches students to listen to others and to learn to accept critiques from peers, skills that are, again, valuable for future law practice.' 30 B. Scrambled Sentences Hess and Friedland also describe a collaborative learning technique, well-suited to large writing classes, called "Scrambled Sentences."' ' The exercise is used by Professor Brannon Heath, from Touro College Jacob D. Fuchsberg Law Center.' 32 For one version of this exercise, Professor Heath prepares a well-structured paragraph with twelve sentences.133 Professor Heath scrambles the sentences and places a number next to each sentence.1 34 She gives a copy of the scrambled paragraph to each class member.' 35 The students are then divided into small groups. Each group is given an envelope containing the twelve individual sentences that had been cut apart from the paragraph.1 36 The groups are directed to reassemble the sentences in the correct order.' 37 Professor Heath rewards the group who successfully reassembles the paragraph first by allowing that group to leave class early.' 3 8 A variation of this exercise can be designed so the students would be given a time limit for working on the puzzle, then the entire class could reconvene and reassemble the paragraph. This would allow for a review of concepts such as paragraph unity, paragraph cohesion and topic sentences. 139 As Professor Heath suggests, this exercise can also be used for teaching

129. Magone, supra note 121, at 245-46; Davis, supra note 122, at 2. 130. Magone, supra note 121, at 245; Davis, supra note 122, at 3. 131. Brannon Heath, ScrambledSentences, in TECHNIQUES FOR TEACHING LAW 241-43 (Gerald F. Hess & Steven I. Friedland eds., 1999).

132. Id. at 243. 133. Id. at 241. 134. Id. 135. Id. at 241-43. 136. Heath, supra note 131, at 241-42. 137. Id. at 242. 138. Id. at 241-43. 139. See e.g., LAUREL CURRIE OATES & ANNE ENQUIST, THE LEGAL WRITING HANDBOOK: ANALYSIS, RESEARCH, AND WRITING 585-89, 591-95 (4th ed. 2006).

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for any written document or part of that

document.14 0 C. Group Legal Research Exercises Collaborative or cooperative learning exercises can also be used to teach legal research. For example, Professor Thomas Michael McDonnell successfully incorporated collaborative research exercises into his first year research and writing course. 141 He first assigned his students to read about a specific research tool.142 Then, during the first twenty minutes of class, he lectured about that tool.14 The students then went to the library and, working in groups of three, used that tool to research the specific issue that had been assigned to their group.144 Professor McDonnell and his teaching assistants were available to answer questions.145 One student in each group recorded the group's answers to turn in at the end of the class.' The students had access to an answer key during class so they could verify the accuracy of their work.' Professor McDonnell found that this exercise helped students learn the often-confusing array of research tools and to practice their research skills in a short time period.148 D. Group Writing Exercises Professor Dominguez describes several cooperative exercises that can be incorporated into a variety of law courses. 149 One exercise would work well in a large legal writing class. For this exercise, Professor Dominguez assigns each group a writing 140. See Heath, supra note 131, at 242-43 (explaining how Professor Heath uses "scrambled sentences" exercises with substantive material from a brief and with the summary of argument). 141. Thomas Michael McDonnell, Joining Hands And Smarts: Teaching Manual Legal Research Through Collaborative Learning Groups, 49 J. LEGAL EDUC. 363 (1990). 142. Id. at 365. 143. Id. 144. Id. 145. Id. 146. McDonnell, supra note 141, at 365. 147. Id. 148. McDonnell, supra note 141, at 371. 149. Dominguez supra, note 64, at 389-9 1.

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task to work on throughout the semester.15 0 For example, he may ask the students to draft a statute or write an appellate brief.'5 ' The students must be prepared to explain their progress on the assignment to the entire class at any time during the semester.15 2 This assignment could be adapted to work with other writing assignments, such as legal memorandums, contracts, wills and trusts, leases and settlement agreements, depending on the nature of the class. These exercises can help students broaden their perspectives on the materials they are learning by sharing each other's unique points of view.1 53 E. Additional Exercises to Use in a Large Legal Writing Class The discussion below presents additional exercises which were developed in a variety of classrooms to address many different substantive matters. They are easily adapted and are suitable to the large legal writing classroom. These suggested exercises can be combined or modified to suit a given class or context. The following exercises are but a few more ways groups can learn together in an organized fashion. 1. Pairor Group Discussion. Pose a question (or questions) for pairs or small groups to discuss. Circulate around the room, answering questions and asking more questions. Then, the group shares their discussion points with the class. 154 2. Active Review Sessions. Place students in pairs or groups

for discussion. Then, rather than the usual format of having students ask questions for the teacher to answer, the teacher and students pose questions for groups or pairs to answer.' 55 3. Citation Exercise (e.g. ALWDI 56, Bluebook 5 '). The teacher provides a brief fact pattern describing the location of legal authority, including cases, statutes, treaties, constitutions,

150. Id. at 390. 151. 152.

Id. Id.

153. Dominguez, supra note 64, at 391. 154. PAULSON & FAUST, supra note 15. 155.

Id.

DARBY DICKERSON, ALWD CITATION MANUAL: A PROFESSIONAL SYSTEM OF CITATION (3d ed. 2006). 157. THE BLUEBOOK: A UNIFORM SYSTEM OF CITATION (Columbia Law

156.

Review Ass'n et al. eds., 18th ed. 2005).

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articles and so on. For example: "The government of Australia filed a complaint against Japan to determine the Jurisdiction of Fisheries. The case was decided by the International Court of Justice on March 8, 2008. It appears at page 35 of the Report of Judgments, Advisory Opinions and Orders." Working together in groups or pairs, the students arrive at the correct full citations using the assigned citation authority. Then, students work with citations to show what they look like in different placements within a paper. The following are examples of some possible questions for the government of Australia problem mentioned above: (1) Provide a proper citation to Article 5 of the North Atlantic Treaty, signed on 4 April 1949, by more than three countries. The citation will appear in a citation sentence. (2) Will your citation be different if it appears in a textual sentence? (3) Provide a short form cite to the treaty, in a citation sentence, if there has been no intervening citation. (4) Provide a short form cite, in a citation sentence, if there has been an intervening citation. When the students' work is complete, the teacher provides the correct citations so the groups can check their work. 4. Blackboard Citation Exercise (e.g. ALWD' 5 , 59 Bluebook ). This exercise can work for a number of projects or problems. It may be used to ensure the students have the correct citations for their current writing projects, or it may be used as a modification or gloss to the "Citation Exercise" in the previous section. Students go to the blackboard, work in small groups, and write the correct citations for their cases and other authority for the rest of the class to see.1 60 5. Visual Lists. For this exercise, students may work in pairs or groups, at their desks or at the blackboard. Students make as comprehensive a list as possible addressing the pros and cons of a position, causes of action or key words for computer or indexed research. 16 1 People typicall generate far more thorough lists when working in groups.'6

158. DICKERSON, supra note 156. 159. THE BLUEBOOK, supra note 157. 160. Adapted from PAULSON & FAUST, supra note 15. 16 1. Id. 162. PAULSON & FAUST, supra note 15.

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6. Jigsaw. This exercise works well for multi-faceted assignments. Each group has a part of the assignment to complete. Once each group has completed its part, the groups join their parts together with the other groups in a cohesive whole.163 For example, one group may have the task of drafting the Issue for a memo. Another group must find and iterate the Umbrella Rule.'" Yet another writes the Explanation, another the Analysis and another the Conclusion. Then, the students combine all their parts to create the completed document. Jigsaws can be constructed on more than one level as well, by assigning each member of a group one part of the group's piece. 7. Role Play. Role playing can work in a variety of ways. Groups can role play in front of the class, in front of smaller groups, or take on characters or positions during small group discussions or full class discussions. When a trial or deposition transcript or a mock hearing is part of the reading or groundwork for students' writing projects, the teacher can assign parts to the students and have them set up the courtroom or hearing office and read the transcript, or students can reenact the underlying crime or tort to help arrive at a more vivid understanding of the facts and crucial issues of the case. When the students are up on their feet acting out the cases, they learn them more thoroughly and immediately.' 6 5 Role playing can also be coupled with interviews. 166 Students may assume the roles of characters in the cases or of various legal personnel (the Judge, Bailiff, Defendant, Plaintiff, Attorneys, Stenographer, and so on). Other students may conduct interviews of them to pursue deeper understanding of their positions, issues, decisions and roles.1 7 8. Games. Many teachers create games to help their students learn. These games are often based upon popular television game-show formats such as Jeopardy, Wheel of Fortune, and the like.. Students also participate in scavenger hunts, looking for pieces of legal authority or investigating the facts of a real or

163. NILSON, supra note 3, at 135. 164. LINDA H. EDWARDS, LEGAL WRITING AND ANALYSIS 111-14 (2d ed.

2007). 165. NILSON, supra note 3, at 87. 166. Adapted from NILSON, supra note 3, at 120-21. 167. Id.

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mock case about which they are to write. The teams win credit, grades or game points based upon speed and accuracy. 9. Panel Discussions. Each group is assigned an issue to present. The group researches the issue, and in the next class, the group becomes a panel. Each member of the panel makes a brief presentation, and then the audience may ask questions. The audience and moderator (or group moderators) could also

be assigned roles.1 68 10. Debates. The groups prepare issues to debate.' 69 They research the issues and, in the next class, become debating teams. This works well in fleshing out arguments for briefs or trial memoranda. Debates can be conducted as a game as well, along the lines of Whiz Kids or College Bowl. 11. Gallery Walk. This exercise is a visual reporting method. Once students have completed a project or assignment, they create a visual depiction of their findings, such as a map, graph, diagram, outline or other written representation on paper, blackboard, power point, video or a strategically placed series of papers. The other students may walk up to the report and observe it as in an art gallery; the group may present or provide summaries of the work.170 12. Knowledge Mapping. To help students learn to do better

legal reading, students work in pairs or small groups to create a visual aid to understand a case or fact pattern (either case authority or case materials to be analyzed). Students should follow these steps and agree upon each one before proceeding to the next: (1) Read the case or case materials thoroughly for a strong overview; (2) Arrive at an agreed upon theme, 7 or holding;' ' (3) Reread the case or overriding principle materials and list other key concepts (issues, rules, principles or

168. PAULSON & FAUST, supra,note 15. 169. NILSON, supra note 3, at 119. 170. Adapted from Barbara J. Millis, Cooperative Learning Structures

(2009), http://www.utexas.edu/academic/diia/research/projects/hewlett/cooperative.p hp. 171. Adapted from A. Majid Hayati & Sadegh Shariatifar, Mapping Strategies, 39 J. COLLEGE READING & LEARNING 53 (2009), available at http://findarticles.com/p/articles/mi-hb3247/is239/ain31589423/?tag=co ntent;coll.

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elements;17 2 (4) Rank the concepts from most inclusive to least inclusive (umbrella and mini concepts); 7 3 (5) Draw lines between related concepts and write a word on the line that describes how the concepts relate to each other;174 and (6) Refine the concepts, making them more accurate and

readable. 17 5 13. Modified Fish Bowl. At the end of class, students are given index cards and asked to write one question concerning the materials covered during that class period. 176 The index cards are placed in a bowl.17 The students pick a card from the bowl, and before the next class, work in groups of three to seven (depending on class size) to arrive at an answer to one of the questions that their group chooses.' 78 At the next class, the groups present their questions and answers in whatever form the group chooses.17 9 The rest of the class gives immediate verbal feedback to let the groups know whether the question was indeed answered satisfactorily.' 8 0 14. Field Trips. Teachers send students in groups to visit legal sites, such as courts, jails, law offices and government offices and buildings. Students are assigned particular events, activities, manners or protocols you wish them to observe. When they return, they can share their experiences by presentation, panel, video project, power point, or in any organized and active way conducive to the group imparting its experience to the rest of the class.' 8 ' None of these exercises is better than the others in the abstract. Teachers should consider teaching goals, time constraints, class size and classroom dynamics when selecting the appropriate exercise and the size of the group.

172. 173. 174. 175.

176. 177. 178.

179. 180. 181.

Id. at 167. Id. Id. Id. Adapted from PAULSON & FAUST, supra note 15. Id. Id. Id. Id. NILSON, supra note 3, at 135.

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V. CONCLUSION

Business and government leadership trainers and pundits recognize that "[c]ollaboration is the critical competency for achieving and sustaining high performance - especially in the internet age. It won't be the ability to fiercely compete, but the ability to lovingly cooperate that will determine success."l 82 Similarly, legal educators have recognized the importance of training lawyers to face the challenges of working in a diverse profession that requires more than the ability to read and analyze cases and statutes. Collaborative and cooperative group exercises teach law students the skills they will need to be successful attorneys. These exercises have been shown to be successful in law school classrooms around the world - both large and small.1 83 These exercises will help law teachers in South Africa meet the goal set by law school deans in 1997: to ensure that law students have the skills they need to practice law. 184

182. JAMES M. KoUZES

& BARRY Z. POSNER, THE LEADERSHIP

CHALLENGE 242 (3d ed. 2002) (emphasis in original); see generally DANIEL H. PINK, A WHOLE NEW MIND: WHY RIGHT BRAINERS WILL RULE THE FUTURE (2006).

183. See supra Part IV.

184. Iya, supra note 2, at 359.