Law Professors: Still Stuck in the Same Old Classroom?

Last summer and fall, the Case Studies Program at Harvard Law School set out to learn more about what kinds of teaching methods and materials law school professors used. We sent out surveys to approximately 1,000 faculty and deans at law schools throughout the country and received about 290 responses.  We wanted to know whether the buzz about innovation in the legal classroom reflects reality. Are faculty using more participant-centered, experiential methods? Or are lectures, casebooks, and the Socratic method continuing to dominate?

On first blush, we found what looked like a revolution. The chart below shows that class discussion was used far more than lectures and the Socratic method. An astonishing 98% of our respondents reported using class discussions frequently or occasionally versus 79% using lectures and 69% using the Socratic method frequently or occasionally. Although over 80% of our respondents reported that they “rarely or never” use the more innovative “flipped classroom” method, 79% used role plays, hypotheticals, and simulations and 73% reported using group exercises frequently or occasionally. Taken together, these findings seemed to point to a real change in how the law is taught.

But a deeper look at the materials used in the classroom shed more light on the methods reported in the previous slide. For example, 63% of respondents reported using casebooks frequently, followed by 61% using problems, hypotheticals, and discussion questions found in casebooks, and 49% using lecture slides and handouts. Only 36% used discussion-based case studies frequently and only 23% used workshop-based case studies frequently. This leads one to infer that casebooks and case teaching continued to be the primary method for teaching legal doctrine.  We also theorize that the discussions and role plays being reported in the methodologies question are brief departures during a lecture-based class, rather than an entire class devoted to engaging students as participants in the learning process.

Based on these results, it seems that law professors are making room in their courses for student interaction through discussions, hypotheticals, and role plays, but there is still a long way to go before learning becomes a participant sport. And the more cutting-edge innovations such as workshops and flipped classrooms are rare indeed. This supposition is even stronger when one considers that most likely those who chose to respond to our survey are more interested and engaged with experiential learning.

Another finding from the study was that, by far, the most common source for experiential materials was the professors themselves, with 90% reporting that they used self-written materials. Other reported sources were other professors and schools (nearly 40%) and online resources (nearly 30%).

The vast majority of respondents self-identified as professors (including associate and assistant professors). Most taught doctrinal courses, with a few teaching clinical, LRW, skills, or a combination.

We are still collecting data through our survey.  If you would like to take part, go to this link.

 

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“Far East Yardies” in the Classroom

the emotional stakes of legal analysis

By Saptarishi Bandopadhyay

In a sense, the Ching Pow: Far East Yardies!! case study is a prequel to cases in the Langdellian tradition. Where the latter begins with the facts elaborated on in a judicial opinion, Ching Pow speaks to the abundance of conflicts that may not get their day in Court. Where a traditional reading of judicial opinions may elaborate on existing rules and precedents, with the judges’ careful and seemingly objective weighing of competing arguments, Ching Pow outlines the early interaction between the creative process and the legal system within which the artist and his works find value. Additionally, the narrative in Ching Pow is designed to have students enjoy the work of filmmaker, Bruce Hart, and thereby invest in what becomes of his efforts.

Ching Pow proceeds with the understanding that before launching into a study of the complex, globalizing system of intellectual property protection, it is important to consider what is at stake. There are certainly financial stakes, but Ching Pow focuses on the extra-monetary aspects of the problem. Ching Pow is a film made on a modest budget, paid for almost entirely by corporate sponsorship, and while Bruce would like to see his film succeed, the case emphasizes his struggle to bring his work before an audience.

Bruce Hart’s story is a microcosm of how a piece of art is made by an independent artist with limited resources and a believable sincerity of intent.  Bruce had the innovative idea to take a series of forgotten B-grade martial arts movies (‘Ninja Death I-III’) and—with considerable effort, and collaboration with other artists (like Jamaican comedians Twin-of-Twins)—produce a film with a unique narrative that would appeal to a Jamaican audience as political satire and pop-culture commentary. We’re talking Chinese martial artists and ninjas possessed by the souls of Jamaican politicians and pop-culture idols displaced by an ecological catastrophe in Jamaica.

As an independent filmmaker Bruce found footage of the original movies on a website claiming to supply films in the public domain. By the time the remake was completed, however, Bruce realized that the films did not reside cleanly in the public domain, but rather languished in a grey category of “orphan works” with some traceable copyright holders. The case outlines Bruce’s painstaking and financially draining efforts to locate this copyright holder, beginning in East Asia and circling back to the United States, while simultaneously trying to find creative ways to release his work to a local audience in Jamaica.

With his brand of filmmaking Bruce Hart follows a lineage of transformative use that is well-established in intellectual property case law. However, when the case study was taught last fall in Professor Charlie Nesson’s advanced problem solving course “Internet and Society: Creating the Public Domain,” students had little or no formal training in the subfield and were for the most part unaware of the case law. The  few who were aware of past disputes involving mash-ups and fair use did not know the details of the resulting judicial opinions.

Prior to class, the students were given some background literature on copyright licensing, and asked, first and foremost, to consider the value of Bruce’s work, and whether such an evaluation is at all relevant when thinking about legal solutions to his unique problem. Students were encouraged to collaboratively research orphan works and the kinds of governmental policies that would apply to Bruce’s film. Based on their findings, sections of the class debated what a functional “public domain” may look like, and the kinds of scrutiny an individual filmmaker (with little or no institutional support in the form of law firms and studio executives) should be subjected to, when judging whether his film fairly appropriates existing works. In effect, Ching Pow asks students to draw broad conclusions about the stakes underpinning law and policy, at the intersection of an institutionalized system of intellectual property appropriation and the less clinically ordered but nevertheless rigorous and systematic process of creative production. Finally, Ching Pow and the workshop asks students to imagine how legal representation itself may be conducted as a creative process, an art, capable of assisting someone like Bruce Hart.

When Professor Nesson raised the initial questions, students offered ideas, then second-guessed themselves, and finally sought clarifications from the instructor. But perhaps because there was a sense of investment in the possibilities for Bruce and his film, it was not long before other students began to offer their understanding of both American and global intellectual property laws. Their experiences and opinions drew on moral and political theory, cultural criticism, and even literary theory. Without realizing it, the students were often outlining the very same theoretical premises and practical choices that legislators and judges have to struggle with when assessing intellectual property issues. Most importantly, Ching Pow prompted students to think analytically while appreciating the emotional basis of Bruce Hart’s dilemma—recognizing that intellectual property law is ultimately as much about perpetuating personal and cultural legacy as it is about financial gain from private property.

Saptarishi Bandopadhyay is an S.J.D. candidate at Harvard Law School and the co-author of the case study “Ching Pow: Far East Yardies!!”

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Check Out Our Menu Makeover!

Better Browsing and Ready-to-Teach Units on HLS Case Studies Site

The Case Studies Program is piloting new website features to help customers explore our offerings. Now, visitors can browse by product type: discussion-based case study, workshop-based case study, role play, DVD, international materials, and free materials. Workshop-based case studies generally involve more class sessions than discussion-based case studies, and include a fairly extensive work-product assignment or exercise in addition to in-class discussion.

New drop-down menu

Over twenty sample teaching units are now available as well, designed to help educators implement cohesive case studies modules and to inspire other creative pairings of our materials. Included in each teaching unit are learning goals and two to five cases that pair nicely to meet these goals, as well as alternative case studies that could be substituted. Multiple units can be combined to produce an entire experiential course; for instance, the Problem Solving Workshop (PSW) units build upon one another to take students through increasingly difficult legal problems: interviewing and advising a client, representing the public, and handling transactions and controversy.

Case study teaching units

The units based on substantive law and skills are modeled after HLS courses such as the Problem Solving Workshop, Advanced Problem Solving Workshop: Cyberlaw & Intellectual Property, and Internet & Society: Creating the Public Domain. Each case in the PSW units is listed with the legal role of its protagonist; the course intends to expose 1L students to a variety of legal careers. The units on the business of law feature law firm or in-house counselprotagonists. They are intended to help experienced attorneys sharpen their business and leadership skills as they gain seniority in law firms and law departments; however, these teaching units could also be implemented in upper-level law school courses on the legal profession. These cases include topics related to career planning, client services, team leadership, business planning, compensation, mergers, change management, and innovation.

Sample teaching units from the Advanced Problem Solving Workshop. These units can stand alone as an experiential component of a traditional course, or can build upon one another for a semester-long case study curriculum.

As always, customers can still browse the homepage menu by author and subject. New subject categories include Internet and Society, Legal Writing, and Problem Solving. The Legal Writing cases include substantial work products such as memoranda, contracts, and trial motions; the writing assignments are usually detailed in the teaching manuals, but can be adapted to meet specific course objectives. To browse offerings from a specific HLS program, see the program listings in our footer. The Case Studies Program welcomes feedback on our navigational redesign. What other features do you need to meet your needs for browsing and case selection? How can we make our existing options more robust?  What new teaching units would you like to see? Have you implemented one of our case studies teaching units or designed one yourself? Email us at hlscasestudies@gmail.com.

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Case Studies in Cyber-Citizenship

Professor Charles Nesson’s course fosters innovation in law and technology

“Think of what we are doing as re-designing the Ames [Moot Court] Competition, producing an Ames Competition in Cyberspace,” Professor Charles Nesson said to his students.  Skillful judgment, innovation, and active participation governed Nesson’s fall 2013 course “Internet & Society: Creating the Public Domain.” Inspired by his colleague Jonathan Zittrain, who co-taught the inaugural Advanced Problem Solving Workshop with John Palfrey in 2012, Nesson too adopted the problem solving methodology. The course used case studies with significant social impact to consider “the history of the Internet, its generative capacity for expanding our public realm, public access to open knowledge, and Internet-mediated civic engagement and political participation,” said Nesson. The cases also serve as primers on recent technology, including peer-to-peer downloading, mobile applications, and online learning platforms.

2013 Brazilian protests

The course kicked off with “In the Stadium and in the Street: The Brazil Soccer Riots,” a case study about protests over the upcoming World Cup. Nesson designed the case to explore group dynamics, the legacy of Big Sport, and the Internet’s role in conflict. In class, students adapted the roles of FIFA, the Brazilian government, or the Brazilian citizenry to analyze the crisis. During the second class session, the FIFA and government groups presented policy statements about the protests, to which the citizen group responded. Students worked to anticipate opportunities and consequences in a situation with lightning-fast Internet communication.

The case study Ching Pow: Far East Yardies!! anchored a module on “fencing off the commons.” Nesson, who has worked for over fifteen years advancing justice in Jamaica, profiled Jamaican filmmaker Bruce Hart and his quest to navigate the realm of orphaned works and transnational copyright permissions. In addition to discussing legal implications and options, the class explored Creative Commons and its potential in influencing a public realm registry of orphaned digital works. Stay tuned for a blog post from the case writer that features Ching Pow in the classroom.

For the same module, Nesson created a spinoff of From Sony to SOPA: The Technology-Content Divide, a popular case study about the conflicts between copyright holders and technology producers. The new case, Sue the Consumer: Digital Copyright in the New Millennium, chronicles the conflicts between copyright holders and individual consumers. Nesson based the student exercises, included in the forthcoming teacher’s manual, on his own pro bono work defending Joel Tenenbaum in an illegal downloading suit brought by record labels. Participants reviewed the Tenenbaum case in order to prepare complaints, deposition questions, motions for sanctions, and subpoenas. Nesson paired the case with two supplementary readings: “Statutory Damages: A Rarity in Copyright Laws Internationally, but for How Long?” and “Statutory Damages in Copyright Law: A Remedy in Need of Reform.”

Nesson worked with tech journalist Jeffrey R. Young to develop MOOCs and Consequences for the Future of Education, a case study on free online education discussed in detail last week here on the blog. As students, the participants reflected on their institution’s best practices for disseminating knowledge; as citizens, the participants considered the strengths and limitations of the virtual public sphere.

Edward Snowden

Nesson used two of the original Advanced Problem Solving Cases: Game Changers: Mobile Gaming Apps and Data Privacy and The WikiLeaks Incident: Background, Details, and Resources. In previous iterations of the Advanced Problem Solving Workshop, WikiLeaks class discussions centered on how to respond to leaks of classified information and how the Internet influenced whistleblowing and its related legal issues. Nesson, however, focused on information dissemination in the Internet age, civil disobedience versus treason, and the role of the citizen in cyberspace; he supplemented the case with readings on Edward Snowden and the NSA.

Nesson’s case studies are available for free on the Case Studies website, which also features a teaching unit to help professors adopt an Internet & Society module.

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Is Online Education Supporting or Suppressing the Public Domain?

New Product: MOOCs and Consequences for the Future of Education

Professor Charles Nesson believes that the Internet has a “generative capacity for expanding our public realm”; it seems that the creators of MOOCs, or massive open online courses, share his philosophy. Industry leaders like Coursera, Udacity, and edX have rapidly developed video lectures and online assignments for the masses; these MOOCs created a free cyberspace for the exchange of ideas, bolstered by relatively small fees for course certificates and licensing agreements with brick-and-mortar institutions. In the past few years, MOOCs have helped the public realm go virtual.

But, for better or worse, education wasn’t the same in the virtual world. The State of California, under pressure to extend its public university course offerings while on a tight budget, thought it had found a solution in online education. But when it proposed in 2011 that MOOCs be accepted as college credit, the Department of Philosophy at San Jose State University was alarmed. “What are the essential components of a good quality education in a university?” the Department asked Harvard professor Michael Sandel, the instructor for the free online philosophy course JusticeX. MOOCs had become competitors to brick-and-mortar institutions, and the virtual threatened to undermine the physical public sphere.

Professor Charles Nesson

Professor Nesson saw this problem—how to educate the world—and saw in the MOOC craze and crisis the perfect case study to analyze possible solutions. Designed for the fall 2013 Harvard Law School course “Internet and Society: Creating the Public Domain,” the case study MOOCs and Consequences for the Future of Education surveys the growth of MOOCs and contextualizes the San Jose State reaction. The goal of the case and the course was meta: “a participatory re-think of legal education,” says Nesson. Using a problem solving methodology pioneered at HLS, this case study had students confront the issue as lawyers would: hands-on and from the very beginning. Participants discussed the challenges and opportunities of exporting Harvard education worldwide through the edX model, and adopted stakeholder points of view to negotiate best practices for the fledgling field of free online education.

Nieman Fellow Jeffrey R. Young

Nesson, a founder and director of the Berkman Center for Internet & Society, has taught cyberlaw, evidence, torts, and criminal law at Harvard Law School since 1966. For decades, Nesson has pioneered classroom innovation on campus; his early computer simulation on Evidence is still in use today. Nesson’s co-author, Jeffrey R. Young, is a senior editor at The Chronicle of Higher Education on fellowship at the Nieman Foundation for Journalism and the Berkman Center. Young has written extensively about the role of MOOCs in higher education; his e-book, Beyond the MOOC Hype: A Guide to Higher Education’s High-Tech Disruption, is available on Amazon.

The suite of Internet & Society case studies are available free of charge on the Case Studies website. For more information, or to discuss how to adapt the case study and problem solving pedagogy for your academic or professional education needs, contact the Case Studies Program at  hlscasestudies at law.harvard.edu.

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Can Governments Follow Their Own Rules?

New Product: Consumer Financial Protection Bureau

It is no easy task to create a new government agency, and the Consumer Financial Protection Bureau was no exception. After the recent financial crisis, the CFPB was conceived in 2011 as a way to regulate financial products, in the way that the Consumer Product Safety Commission regulates tangible products. However, some legislators took issue with its proposed clout, cost, and goals. The appointment of a director was wracked with controversy—President Obama instated Richard Cordray as a recess appointment while Congress was technically in session. Then, the CFPB endured a two-year purgatory, as Congress struggled to confirm Cordray as leader. The CFPB’s authority finally vested in 2013 when Cordray was approved; facing critical attention from the media and political opponents, the agency could not afford a misstep.

Its statutory mandate was simple, but vague: to “consider the potential benefits and costs” when making rules. How could an agency consider the benefits and costs when nothing like it had ever existed?

The 2011 Business Roundtable v. SEC decision raised the stakes of the mandate, suggesting that independent agencies might need to quantify costs and benefits. Between the agency’s controversial beginnings and the scrutiny of financial agencies post Business Roundtable, the CFPB needed a clear policy fast, one that could withstand litigation challenges or congressional review.

The General Counsel’s office of the CFPB had to legally navigate the agency’s semi-autonomy. It became an exercise in interpretation and discretion. Did Business Roundtable apply to the CFPB? Was quantitative cost-benefit analysis necessary, and how might it be done? How could CFPB policy best reflect these opinions? After arriving at hard-won consensus, would the courts agree with them?

Professor Howell Jackson

Professor Howell Jackson’s case study, Consumer Financial Protection Bureau, delves extensively into the statutory mandates, precedents, and best practices for agencies setting rulemaking standards.  Designed for the Problem Solving Workshop, a required 1L course at Harvard Law School, the case progresses through discussion, legal analysis, and memoranda writing before bringing participants to the heart of the problem: finding a unifying policy for rulemaking that stays true to mission of the agency. Participants play the role of new attorneys at the General Counsel’s office of the CFPB tasked with making this policy, and ultimately present their conclusions to a volunteer practitioner acting as the Director of the CFPB. Participants learn how to interpret law in context, review materials purposively, and anticipate a client’s questions and concerns when acting on their behalf.

The case includes five parts: an introduction of the problem, the agency, and the relevant court decisions; a continuation of the problem that supplies extensive appendices to consider how the agency has incorporated statutory mandates, court decisions, and recommended practices; a memorandum assignment focusing students on one of two policy objectives; final instructions to synthesize those objectives for the presentation to the CFPB Director; and a glossary of acronyms used. Consumer Financial Protection Bureau is available free of charge on the Case Studies website, and educators have free access to a detailed teaching plan as well as analysis of relevant rules and decisions.

The Problem Solving Workshop allows students to confront client problems in the way practicing lawyers do, from the very beginning. Jackson, who teaches financial regulation and federal budget policy at Harvard Law School, taught in the Problem Solving Workshop from 2010 to 2013.

For more information, or to discuss how to adapt the case study and problem solving pedagogy for your academic or professional education needs, contact the Case Studies Program at  hlscasestudies at law.harvard.edu.

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Case Studies Conversations: Exec Ed Director Scott Westfahl ’88

Professor Scott Westfahl ’88, the new faculty director of HLS Executive Education, has been using case studies to train better lawyers for years. Not only did Westfahl serve as Director of Professional Development for Goodwin Procter LLP and Chair of the Professional Development Consortium, but he has also co-taught a section of the HLS Problem Solving Workshop yearly since its inception in 2010. I sat down with Westfahl to hear how case studies and experiential learning inform his mission for educating both seasoned professionals and aspiring lawyers:

Why are case studies important for professional development?

People learn best through the power of story and discussion, and professional development requires context.  Law firms and legal educators are now realizing that the typical talking-head panel discussions or partner-delivered PowerPoint presentations on legal topics are mostly ineffective for helping lawyers put theory into practice.  Lawyers are all smart enough and enough online resources exist for them to come up to speed on basic legal concepts and frameworks.  Rather than waste valuable, in-person instruction time regurgitating such content, instructors using the case study method can assume a base level of subject matter competency and move forward to actively helping participants to work with the relevant material and understand how it really matters.

Other benefits include trust- and respect-building among colleagues who participate together in case-based learning.  For a lawyer in one of these professional development programs, there may be an intense discussion going on that applies to your world. If a colleague makes a terrific contribution, respect increases, and your trust in them as a lawyer increases. Lawyers hesitate to collaborate with people they don’t know; if you haven’t seen someone’s thought process, you’re unlikely to make that referral.  Trust and collaboration are essential to realizing the business synergy of scale within a law firm.  So our teaching method not only sharpens lawyers’ substantive and professional judgment, it also helps build trust, foster collaboration and enhance a firm’s culture.   Am I going to call the new guy? If I know he’s smart because we’ve solved a problem together in a case-based class, I am a lot more likely to do so.

Which case studies work well in a lawyer professional development setting?

The classic producer-manager case studies are tremendously effective for law firm partners.  They’re normally so focused on their work that it’s hard to gain perspective on where they are in their careers, to see all of the competing demands on their time. Advising clients, managing the business, taking on pro bono work or mentoring roles, being a leader in the community, attending bar events, having a family—the list goes on. So when a partner reads one of the producer-manager case studies, they often have a strong emotional reaction and think “someone else is describing my life.” It’s cathartic, even more so to be in a room of similarly situated peers. Then, they work together in class to identify coping strategies.

How are you bringing experiential learning to HLS Executive Education?

The core of all of our programs – for law firm leaders, emerging leaders, associates and corporate counsel – is experiential learning through the heavy use of case studies and discussion-based learning.  As we grow our program to include more legal substantive content, we are going to be developing new case studies and “caselets” with faculty members in order to leverage the full power of this learning method.  I’m confident that this is the way to go and is what practicing lawyers want from us and need.  Just look at the success HBS has had in doing this with their Executive Education Program (which just opened its third building, with 75 hotel-style rooms and three classrooms!).   There is great hunger for programs taught by leading experts in an interactive format that allows participants to learn from each other as well.  The distinguishing factor for HLS Executive Education needs to continue to be the way we teach.  We don’t convene conferences or compete with external CLE providers and don’t want to.  We’re thinking: where’s the discussion-based case learning that makes this different?  If the only thing special about executive education is the invite list, we haven’t achieved anything new or helpful.

The beauty of case studies and “caselets,” again, is that participants also learn from each other. They’re seasoned professionals, and case studies facilitate learning by getting them to talk about challenging scenarios.  There’s no right answer to these challenges.  The case studies allow educators to introduce frameworks, research, and concepts.  Because the case studies are stories rooted in real situations, participants remember them and are able to apply what they heard as soon as they encounter analogous situations.  In my previous role leading professional development at a major law firm, it was INCREDIBLY helpful to me when partners had experienced cases on leadership and motivating others; they could draw lessons from those cases and work with me to implement more effective processes and programs to develop junior lawyers.  We were talking the same language and they were conversant with leadership and motivation concepts and frameworks because they had worked through cases that cemented the importance of those concepts and frameworks.  Priceless.

How do Problem Solving Workshop case studies compare to case studies you use in professional development programs?

I am a huge fan of Harvard Law School’s PSW case studies.  I practiced law for ten years, but very little of what I learned in law school directly applied to my work as a practicing lawyer. My dad was a submarine officer and I grew up on Navy bases all around the country—I didn’t know what lawyers did. I didn’t even know any lawyers.  I would have benefitted SO much from PSW because its cases place students in the middle of real situations that lawyers face, and ask students to work in teams to figure out what they should do as the lawyers in those situations.  PSW case studies directly involve lawyering skills, whereas other case studies focus on specific dilemmas a leader or an organization is facing. In PSW, students get to see what it’s like to be a particular kind of lawyer, which is especially helpful if students are unfamiliar with the legal profession like I was as a law student.

At their core, PSW case studies are about teaching judgment in addition to substantive law.  If practicing law were only about knowing substantive law, we wouldn’t need PSW.  But it’s not.  When I was running professional development at a large firm, I once conducted an internal study to identify the factors that correlated most highly with strong associate performance ratings in their annual reviews.  By a factor of seven times, judgment was the most important factor.   So a case study method that develops judgment and perspective for law students is a critical complement to the traditional case method through which students learn legal doctrine.  For the good of our profession and to fulfill our mission as a professional school as well as an academic institution, I hope we continue to develop the PSW case study approach so that it becomes as big a part of the way we teach as Langdell’s own method.

Finally, through my professional development background I have seen firsthand the very disappointing levels of dysfunction within legal organizations that arise because lawyers are not trained to work in and/or lead teams.  That’s why I’m most excited about the team element of PSW—it’s the only core curriculum course at Harvard Law School where students work in teams.  In my view, our graduates will be MUCH more effective, whatever they decide to do, if we help prepare them to be good team members and leaders.  We should help them to learn skills like how to give feedback, have challenging conversations, overcome team obstacles, leverage and appreciate other peoples’ strengths—skills that are critical in nearly every environment where our graduates will find themselves.

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5 Questions with Dr. Lisa Rohrer

Lisa Rohrer will tell you that she’s “drunk the case studies Kool-Aid.” She has been writing and teaching case studies for years, and as the newly appointed executive director of the Case Development Initiative, she’ll be overseeing the biggest source of case studies at Harvard Law School. We sat down with Lisa to hear more about her experiences in the classroom:

How do you prepare for teaching a case study?

LR: It’s so helpful to talk to others who have taught case studies. If I don’t know a case or have no other experience with it, I  often reach out to colleagues or read teaching notes, both to get ideas as well as a sense of how students typically react to the various issues presented in the case. This is a big reason why we’d like to write more teaching notes for CDI cases—they can help instructors get up to speed quickly on how to maximize the teaching value of the case. The exciting thing about cases is that you never know how it’s going to go, so it’s really helpful to have the benefit of those who have come before.

Teaching with case studies is very different from giving a lecture or leading a discussion. You need to simultaneously engage students in the story and strategically manage the classroom time so that certain teaching goals emerge from the session. I always think about what people walk away with, so they don’t leave saying, “That was interesting but I have no idea what to do with that information. What did I actually learn?”

What other concerns do you have about teaching with case studies?

LR: One of the things you run into danger with, particularly if you don’t have MBA students immersed in the culture of case study learning, is student preparation. If students aren’t prepared for class, the case study is going to fall flat. You might say: “Why is Catherine feeling so troubled in this case?” And there’s just silence, and everyone is looking at each other, looking at their laptops. It’s a really basic question, but that happened to me last week. You always have to be ready for that to be an issue.

In my JD course, I make participation 25% of the student’s grade to give students an extra nudge to engage in the process. As much as I can, I also get them to work in small groups and then report out. It helps in several ways. First, if they have not spent a lot of time with the case, it gives them a chance to get up to speed. Second, if they are nervous about contributing to the discussion, it gives them a chance to test drive their reactions to the case in a safe environment. I find it facilitates discussion.

How do you save a case study when no one has read it?

LR: I posed this question to a professor once. He said, “That’s only ever happened to me once. I told them, ‘I’m going to leave the room. You have twenty minutes to read this case.’” And he said it never happened again.

Sometimes, particularly again, if students are not 100% comfortable with the case discussion format, it’s a question of getting them warmed up. I’ve often found that if I just wait long enough, students start to jump in. When I was met with blank stares at the beginning of the case discussion last week, as the students started to speak after a long silence, I realized that they did have a better grasp on it than I first thought. Sometimes you have to let everyone get nice and uncomfortable with the silence in the room. Once some people start to talk, others will too.

You can also cold call early in the semester, early in the class. The first session is where you set the expectations. If you cold call that first question, it really gets people’s attention. I haven’t needed to do that, but I know people that do, and it works.

Tell us more about your participation policy.

LR: To some professors, the quantity of participation is all that matters; to others, quality—a student only needs a few amazing comments to ace the participation grade. When you’re working with students who are not accustomed to the case method, I think you need to tread carefully here. I don’t particularly care if the students have brilliant insights, I just want them speaking and engaged. I want them to take risks and state their opinion, but I don’t want them to be worried about what’s right or wrong. I am not out there to fail somebody because they don’t understand a case we’re discussing in class. I want to create a safe environment to play with these ideas. This goes to written assignments, too. I ask them to take the concepts and apply them to another situation in real life. I’m looking for an honest attempt more than brilliant organizational analysis.

Do you have any advice for teaching with case studies?

LR: Using cases is a somewhat riskier way of teaching. When I put together a course, I try and frontload with some case studies I know well and am reasonably confident will be successful. If the first few classes go really well, students will give you more latitude when trying new cases later on. The first few times you teach a case, it’s sometimes hard to keep the discussion going for a really long time. A big part of case teaching is knowing where you are in your time schedule. If you’re teaching it for the first time, you’re not as good at following lines of argument down to the end. You have questions you want to ask the class, and you can get through them kind of quickly. For these reasons, it’s a good idea to have some backup ideas for how to emphasize the concepts you are covering and make it real to the students.

Energy level is also really important. Because you rely so much on discussion, you can’t really teach a case by sitting in a chair in front of the class. The best case teachers are moving around, keeping the students’ eyes, ears, and brains busy while facilitating discussion. That means pushing back on students, getting them to clarify their thinking, provoking, getting people to point and counterpoint, pointing out when people have different views and asking them to engage with each other.

I also bring in video clips to mix things up and make the case come alive. Another tactic is to try and connect the case to the student’s experience. “Have you ever seen anybody like this? Have you been in an organization like this?” Suddenly people see that it isn’t just something they’re reading on paper. Getting them to start sharing and talking about real-world implications raises the energy level.

…before we go, can I talk about why I use case studies?

Sure!

LR: I’ve thought about this a lot. I did my training in the business school where case teaching is the norm, but it’s much more unusual in law schools so being in law schools has forced me to really think about the value of this approach. In academia, we have a tendency to break everything out into disciplines, and the learning experience can become siloed. You go from one to the next—corporations, torts, estates. But the world is multidisciplinary. Cases enable you to get into the nuance and force students to grapple with all of these other issues in real situations. You can pull out what you want to for teaching purposes, but cases also enable instructors to demonstrate how various areas of expertise can interact with each other. In life, there’s very little that happens in one discipline. Cases reflect the messiness of the real world by telling stories about real people making judgment calls in real organizations. This makes them both uniquely instructive—and a lot of fun.

 

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Blog Trailer: Critical Decisions in Negotiation

For years, HLS Professor Bob Bordone lamented that there was not an easily accessible, high quality teaching resource for negotiation instructors to demonstrate a range of critical negotiation behaviors to their students in practice.  Bordone explains, “Helping students develop new behavioral moves in the heat of the moment and deepen their capacity for self-diagnosis and reflection is hard work.” Bordone and his staff at the Harvard Negotiation and Mediation Clinical Program use the teaching technique of “fishbowls” in the HLS classroom to great effect—in which the professor moderates a live negotiation, with teaching assistants role playing the negotiation and students stopping the action frequently to discuss the proceedings as they unfold. But when teaching executive education classes where time and teaching staff might be more limited or when teaching to very large groups, it is often difficult to use these live “fishbowls.” Hoping to bring the fishbowl technique to more classrooms, Bordone and colleagues Toby Berkman and Chad Carr spearheaded the Critical Decisions in Negotiation project, now available as a 3-DVD set on the Case Studies portal.

The video blends negotiation footage, reflections from the negotiation participants, and guiding explanations and suggestions from Bordone. Eight pairs of negotiators—real attorneys and contracting professionals from the Boston area—were filmed negotiating “Iqbal’s Big Venture,” an HNMCP simulation about a biotech licensing agreement. To encourage candid proceedings, the participants received factual information and encouragement to treat the simulation genuinely and act in the best interests of their client. The fishbowl-style reflections were filmed after the negotiations ended, so as not to influence the outcomes. The final cuts feature four pairs of negotiators, whose interactions offered the most salient opportunities for analysis and interpretation. Packaged with a detailed teaching note, the video may be used on its own or in conjunction with the simulation.

The DVD focuses on three areas of instruction: openings and process, dealing with difficult tactics, and active listening and effective assertion. Like the fishbowl technique, the video draws out an oft-missed perspective crucial to consider while negotiating: that of the negotiator sitting across the table. Bordone explains: “Students almost always question whether a problem-solving negotiation strategy will work outside of the classroom context when their counterparts may not have been trained in the same methods. They are unsure how to respond to negotiators who appear to be using hard bargaining or other challenging behaviors. They fear that persisting with a problem-solving strategy will leave themselves open to exploitation.” These challenges do arise in the footage, and Bordone directs viewers to responses that successfully counter these obstacles.

The negotiations are unscripted, and Bordone says that watching the negotiators struggle is just as valuable as watching model behavior. For instance, none of the negotiators discussed process in much depth.We often compare being an outstanding negotiator to being an outstanding batter in baseball,” Bordone explains. “As those familiar with baseball know, some of the best hitters have a batting average of .350 or .400, meaning that they are getting on base by hitting the ball only 35 to 40 percent of the time.” This teaching tool, Bordone says, fosters self-confidence in aspiring or fledgling lawyers: “Seeing law firm partners and well-seasoned negotiating professionals struggle to negotiate effectively makes students realize how much they have learned and how many skills they have already developed.”

For a further look into the making of Critical Decisions, check out Bordone and Carr’s piece in Negotiation Journal.

Have you used Critical Decisions in Negotiation in your classroom? We’d love to hear about your experience! Email us at   Posted in Harvard Negotiation and Mediation Clinical Program Blog Posts | 1 Comment

For-Profit Law Schools: Impacting the Future of Legal Education

The InfiLaw System, a for-profit company that owns several law schools and professional development firms, is challenging the status quo in legal education in a way similar to for-profit education companies such as University of Phoenix, Strayer, and DeVry. However, recent features in the Wall Street Journal, the ABA Journal, and the Charleston Post and Courier suggest that this new approach has not been wholly well-received.

InfiLaw applies its profit-oriented approach to legal education. According to its website, InfiLaw creates curricula based on “emerging market realities,” job demand, job competition, and return on investment. Founded in 2004 by Sterling Partners, a private-equity group, InfiLaw quickly purchased two for-profit independent schools, Florida Coastal School of Law (Jacksonville, FL) and Phoenix School of Law (Phoenix, AZ). The latter was renamed Arizona Summit Law School in November 2013.  In 2006, North Carolina’s Charlotte School of Law was added to the roster, and this year Charleston School of Law in South Carolina is in the process of transitioning to the InfiLaw group.

Proponents of for-profit education argue that it responds to market forces, providing educational opportunities to traditionally underserved students who in turn become more valuable to employers.  Critics claim that for-profit institutions are simply numbers-oriented “diploma mills” that push students through programs of questionable quality with the goal of increasing the revenues of the equity firms that own these institutions. For instance, the Senate Health, Education, Labor and Pensions Committee found that “actual instruction [at for-profit institutions] made up a paltry 17.2 percent of expenses.” The magazine Diverse Education explains: “according to the U.S. Department of Education, students at for-profit institutions represent 12 percent of all higher education students, 26 percent of all student loans and 46 percent of all student loan dollars in default. […]  On average, students at four-year public and private institutions earn higher wages upon graduation than those at for-profit institutions.” However, accreditation standards for for-profit schools have slowed the “diploma mill endemic,” say researchers from the Center of College Affordability and Productivity

William Henderson, a law professor at Indiana University, told the Wall Street Journal, “InfiLaw is applying a private-equity model to legal education…I think these are people who could make a difference in legal education.”  InfiLaw supporters argue that the consortium provides opportunities to a number of students who otherwise might not be able to study law. The Wall Street Journal’s Ashby Jones explained that these for-profit models are not “designed to compete with the Harvards and Stanfords[…] the approach […] has mostly been to target students, including many minorities, whose grade point averages or LSAT scores don’t qualify them for admission at the top schools” (link; subscribers only.) InfiLaw has committed to provide students with more feedback and hands-on learning than traditional law schools do, plus they’re offering 400 hours of work experience by the time students graduate.  The InfiLaw website states that their schools aim to uphold three main principles:

  • Serve the underserved
  • Provide education that is “student-outcome centered”
  • Graduate students who are “practice-ready”

With tuition at about $40,000 per year, this legal education alternative does not come cheap, but then neither does a law degree from a traditional school.  The New York Times reported the average tuition for a private law school in 2012 was $40,500 and for public law schools the tuition was $23,600.  The median debt for students graduating from either a public university or private, nonprofit law school is now well over $100,000.  This year, the U.S. News and World Report ranked Phoenix School of Law third in the nation in average indebtedness of law school graduates, after private, nonprofit Thomas Jefferson School of Law and private, nonprofit California Western School of Law. 97% of Phoenix’s graduates had debt, which averaged $162,627 per graduate.  Florida Coastal and Charleston students were also in the top 25 indebted, with $143,111 (92%) and $141,457 (88%). Charlotte graduates ranked much lower with $115,747 (90%), beating Harvard Law graduates, 80% of whom average $124,312 in debt.

WSJ’s Jones wrote that critics believe InfiLaw is “compounding problems in the legal education by graduating far more students than there are entry-level jobs for lawyers.” The WSJ goes on to state that former InfiLaw students have accused the firm of predatory enterprise practices (false assurances in exchange for high tuition), peddling certificates and degrees to the masses.

In recent results from state bar exams, Florida Coastal School of Law had a 67.4% passing rate; Charleston School of Law posted 68.9%, up from the previous exam’s 59.2%; and Charlotte School of Law reported 58%. On the other hand, one of the top-scoring individuals for the Arizona bar exam was a 2013 graduate of the Phoenix School of Law.  By comparison, private, nonprofit law schools such as University of Miami School of Law had a 79.3% passing rate and North Carolina’s Duke University School of Law posted a 96.1%.  While public, non-profits such as University of South Carolina School of Law had an 82.5% passing rate and University of Arizona School of Law posted an 89% passing rate.

What are your thoughts on for-profit education?  Do you think it is negatively or positively impacting the future of legal education?  Let us know on our Discussion Forum

 

Sources:

InfiLaw: “Our Schools

Wall Street Journal: “Private-Equity Group’s for-Profit Law School Plan Draws Critics” (subscribers only)

U.S. News & World Report“Which law school graduates have the most debt?”

FloridaBarExam.org

FITSNews:  2013:  SC Bar Exam Results Released

North Carolina Board of Law Examiners

Supreme Court of Arizona

University of Arizona School of Law

Time.com:  “Just how bad off are law school graduates?”

New York Times:  “Law schools’ applications fall as costs rise and jobs are cut”

Charleston Post and Courier: “Charleston School of Law Founders Proceeding with Plans to Sell to InfiLaw System

ABA Journal: “Are InfiLaw’s for-profit law schools succeeding?  Plan to buy fourth school spurs concerns

Hayes, Dianne.  “The for-profit conundrum.”  Diverse Education (August 16, 2012),

http://diverseeducation.com/article/17311/.

Bennett, D.L, Lucchesi, A.R., Vedder, R.K..  “For-Profit Higher Education – growth, innovation and regulation.” Center for College Affordability and Productivity (July 2010).

 

 

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