Nearly all law schools include a commitment to access to justice as part of their mission statements or among their stated values.  UC Berkeley Law School has gone one step further in the area of consumer law. The law school has launched a new Center for Consumer Law and Economic Justice.  Funded by a spring 2018, $3.5 million gift from a Berkeley Law alumna, the center seeks to “ensure safe, equal, and fair access to the marketplace . . . [and to] create a society where economic security and opportunity are available to all.”

The Center already has jumped into action. On April 16, the first day of the Center’s official existence, the Center filed an amicus brief in Manriquez v. DeVos, a case seeking to compel the U.S. Department of Education to honor its promise to forgive the debt of tens of thousands of students defrauded by Corinthian Colleges.

In late June, the Center convened two groups of practitioners whose work focuses on protecting the rights of low-income consumers, including government enforcement attorneys, consumer advocates, and direct legal service providers. The partnerships will help keep enforcement agencies informed about the most pressing forms of fraud and abuse facing consumers and will provide a forum to share ideas and materials.

Finally, the Center has created four new consumer law courses, Consumer Litigation: The Course of a Case, The Law of Student Loans, “Carsumer” Protection Law, and Consumer Bankruptcy Law.  For more information about these very interesting courses, see the Center’s first 90-Day Report.

I depart today from my normal column subject, educational innovations, to share some personal thoughts about Justice Kennedy.  Although it was not advertised during my recruitment for the McGeorge deanship, one of the greatest and most undeserved perks of being the dean at McGeorge is the opportunity to work with and get to know Justice Kennedy. I write to share a bit of the more personal side of the man.

I will leave it to others to address Justice Kennedy’s legacy as a Supreme Court justice. I am not a Constitutional law scholar, and I have no desire to confirm my lack of expertise by trying to pretend to be one. My favorite professional tributes so far are this legal analysis by his former law clerk, Cornell Law Professor Michael Dorf, and this tribute that gracefully links Justice Kennedy’s 40+ years as a law teacher and his storied career as a jurist authored by UCLA Law Professor Richard M. Re. I also enjoyed this more personal tribute by Notre Dame Law Professor Jeffrey Pojanowski and this tribute by Dr. Sionaidh Douglas-Scott, who, since 1993, has been Justice Kennedy’s co-teacher in McGeorge’s study abroad program at the University of Salzburg. (Dr. Douglas-Scott herself is a rock star law professor in England. Check out Dr. Douglas-Scott’s bio.) Justice Kennedy also has been celebrated for his civility and willingness to work hard.

Everyone else having done the hard intellectual work, I get to just tell four Justice Kennedy stories that, together, capture what a special man Justice Kennedy is.

Story 1. Last summer, I had the opportunity to catch a class session taught by Justice Kennedy as part of McGeorge’s Study Abroad Program at the University of Salzburg.  As is always the case with Justice Kennedy when he speaks, he taught entirely without looking at his notes.  (I have noticed that, when he speaks, he often has a set of handwritten notes which he relegates to his coat pocket before he starts speaking.) He was a wonderful classroom teacher (and, as many of you know, I am passionate about excellence in law teaching).  A particular moment stands out. He called on a student, and as many of us do when we teach, he asked her, “What would you argue if you were the lawyer in this case?”  The student articulated her argument. Justice Kennedy replied, “That was not the argument I was looking for.”  The class held its collective breath, as the student no doubt searched her mind for another answer. Then, the Justice added enthusiastically, “It’s better!” His humility and sincere delight in student success were evident throughout the class session, and those qualities are two common characteristics of the 26 law professors my co-authors and I studied for What the Best Law Teachers Do.

Story 2. On multiple occasions, Justice Kennedy has told people that I am his “boss.” (I, of course, cannot imagine a more absurd title.) In addition, on two occasions, in meetings that included the president of my university, Justice Kennedy credited me with a summer internship idea that, at best for me, was 95% his idea and 5% mine. (In both instances, given his stature, I was not going to start arguing with him publicly.)

Story 3. As my wife and I were saying goodbye to Justice Kennedy and his wife, Mary, in Salzburg last summer, Justice Kennedy said, with his typical kindness, “Mike, I think you will be great for McGeorge, and Stacey, I think you will be great for Sacramento.”  He was right about my wife, and, while she has not lorded it over me, I suspect it meant that he liked her more. Regardless, his graciousness touched us both.

Story 4.  This spring, I heard two Justice Kennedy speeches, his remarks to the Sacramento County Bar Association (SCBA) on the occasion of the SCBA’s 100th Anniversary celebration and a video presentation at a dinner honoring the accomplishments of a retiring justice of the 3rd District of the California Courts of Appeal, Justice George Nicholson. What both sets of remarks had in common was his evident and enormous connection to the Sacramento community and bar, his genuine connection to people on a very personal level, his willingness to go out of his way for others, and his brilliance as a public speaker.  It was also telling that so many of us felt a personal connection to the man.

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So, what do I take from these four stories? Justice Kennedy is a humble man (Stories 1 and 2), great law teacher (Story 1), a supportive, kind, and generous person (Stories 2, 3, and 4), and a good friend (Stories 2, 3, and 4).

I have been asked what I see Justice Kennedy doing next. I have no doubt he will spend more time with his family. However, to me, Justice Kennedy is the legal education equivalent of LeBron James (an iconic figure, someone everyone would like to have on her or his team, a guy who makes those around him better, and a free agent this summer). I therefore will be recruiting him to continue to teach at McGeorge, ideally even more frequently than he has in the last few years.

It is very easy to dismiss one impressive bar pass rate as a fluke.  Even two in a row might possibly be dismissed. However, Florida International School of Law, ranked fifth among the 11 ABA-approved law schools in Florida, has enjoyed a bar pass rate, over the past six bar exams, that is first, first, first, second, first, and first in the state. In other words, we cannot even see the fluke line from where we are standing; instead, it’s time we recognize that FIU has found the bar pass secret sauce.

What is that secret sauce? It could not be simply having an academic support and/or bar pass program. Many U.S. law schools have implemented academic support and bar pass programs aimed at ensuring their students graduate and pass the bar exam on the first try. These programs have enjoyed varying degrees of success, but no law school has experienced anything close to the long-term, sustained success FIU has enjoyed.

The architect of FIU’s Bar Pass success, Professor Louis Schulze, has authored a law review article that provides some insight. The crux of Professor Schulze’s approach involves empowering law students by teaching them modern brain science principles and study strategies, convincing the students to implement those principles, and supporting their efforts to do so.

The full article is worth a read. Below, to whet your appetite for the full article, I detail three principles that animate Professor Schulze’s approach.  For example, as Schulze explains, most students study incorrectly for their exams and for the bar exam. Instead of finishing one subject and moving onto the next, students could greatly improve their recall if they were to study and re-study (four times in all) their course material or bar subjects. The term of art is “spaced repetition.”

In fact, there is evidence that changing subjects and study methods every 45 minutes or so has a positive effect on recall (known as “interleaving learning”). (This insight is not from Professor Schulze’s article but is based on recent articles that I have concluded are credible enough to share with my students.)

Second, according to cognitive learning theory and studies confirming the validity of the theory, students store knowledge in organized structures in their brains. This insight explains why course outlining helps learning; however, this point also explains why flowcharting works as well as outlining, why course outlines that are simply lists of rules without hierarchy are not very useful, and why students really should be trained to avoid commercial or hand-me-down course outlines.

Third, students who self-regulate their learning, who take control over their learning process by planning how they will study each concept, who implement those plans while constantly monitoring their learning, and who frequently reflect on the success of their plans and adapt where necessary learn better.

In short, by teaching students to be expert students, FIU has helped its students successfully navigate the bar exam.

This week’s blog entry focuses on F.O.I., Fear of Innovation. While researching for another project, I came across the quotations listed below. Because they seemed so relevant to a blog focusing on innovation, I could not resist taking a one entry time out from my regular practice of writing about great law school innovations.

The quotes below reveal what I suspect we all have observed; educators have always been made a bit queasy by innovation. Given the breadth, depth, and ambition of the ideas I have had the opportunity to feature in this blog so far, it appears legal educators have chosen to feel the fear and move forward anyway.

I found all the quotes below in the book Rethinking Education in the Age of Technology: The Digital Revolution and Schooling in America by Allan Collins and Richard Halverson. The book was published in 2009 by Teachers College Press.  Quotes 1 and 2 are on page 30; Quotes 3 through 7 are on page 31.  The authors provide further background on the quotes in a footnote.

  1. From a principal’s publication in 1815: “Students today depend on paper too much.  They don’t know how to write on a slate without getting chalk dust all over themselves.  They can’t clean a slate properly.  What will they do when they run out of paper?”
  2. From the Journal of the National Association of Teachers, 1907: “Students today depend too much upon ink.  They don’t know how to use a pen knife to sharpen a pencil.  Pen and ink will never replace the pencil.”
  3. From Rural American Teacher, 1928: “Students today depend upon store bought ink.  They don’t know how to make their own.  When they run out of ink they will be unable to write words or ciphers until their next trip to the settlement.  This is a sad commentary on modern education.”
  4. From PTA Gazette, 1941: “Students today depend on these expensive fountain pens.  They can no longer write with a straight pen and nib. We parents must not allow them to wallow in such luxury to the detriment of learning how to cope in the real business world which is not so extravagant.”
  5. From Federal Teachers, 1950: “Ballpoint pens will be the ruin of education in our country.  Students use these devices and then throw them away.  The American values of thrift and frugality are being discarded. Businesses and banks will never allow such expensive luxuries.”
  6. From a fourth-grade teacher in Apple Classroom of Tomorrow Chronicles, 1987: “If students turn in papers they did on the computer, I require them to write them over in long hand because I don’t believe they do the computer work on their own.”
  7. From a science fair judge in Apple Classroom of Tomorrow Chronicles, 1988: “Computers give students an unfair advantage. Therefore, students who used computers to analyze data or create displays will be eliminated from the science fair.”

I hope these quotes have entertained you as much as they entertained me. I note that, in writing this blog post, I had the unfair advantage of using a computer.  Thankfully, no one is making me rewrite this post in long hand.

This week, I write to share a program, the Mentor Externship Program at University of St. Thomas School of Law, that I have successfully emulated at two other law schools.  I am not the only admirer. St Thomas’ version of the program was awarded the American Bar Association’s E. Smythe Gambrell Professionalism Award, and a similar program (modeled on St. Thomas’ program) is part of a comprehensive professionalism curriculum, created by my former colleagues at the University of Arkansas at Little Rock, William H. Bowen School of Law, also received a Gambrell Professionalism Award.

Every entering student at St. Thomas is matched with a mentor who is either a judge or practices in an area of law of interest to the student. The goals of this program include fostering professionalism, developing students’ interpersonal skills, and deepening students’ self-directed learning skills.

First-year students focus on developing good relationships with their mentors and logging 18 hours of fieldwork. Students receive guidance on professionalism, communication, time management, and making the most of mentor relationships through programs held throughout the year. The first year has no seminar component, and no academic credit is earned.

Second- and third-year students complete 30 hours of fieldwork per year while maintaining good relationships with their mentor. In addition, students take a required one credit seminar each year. The seminars are taught by full- and part-time faculty. These faculty mentors teach up to 16 students in small group classes and assist students in meeting their self-defined objectives throughout the year.

Fieldwork experiences are combined with reflective writing to promote students’ self-reflection skills. For more information, try this link; click on each of the sub-links.

Having served as the dean at two law schools that have implemented similar programs, I have now heard from dozens of students who regarded their mentoring experiences as among their best experiences as law students. Many have reported discovering new potential areas of practice or discovering that an area of law they thought was attractive was not. A good number have secured summer and even permanent jobs as a result of their mentoring experiences.

Civility (or its absence in our day-to-day discourse) has become a topic of great national concern. A November 2017 study found that nearly 75% of those surveyed completely or mostly agree that incivility in this country has risen to crisis levels and 60% of those surveyed tuned out political conversations that had a negative tone or otherwise lacked civility.

The legal profession also seems to have a civility problem. A 2015 Above the Law article asserts “It is no secret that civility is at an all-time low among lawyers” and “we need to stop training lawyers to be jerks.” Lawyers need to learn to disagree more respectfully.  The courts seem to be concerned. In September, the Federal Judicial Center and the Ninth Circuit Court of Appeals sponsored a “symposium” entitled, “The Nature and Practice of Civil Discourse.”

Boston University School of Law has implemented its own initiative aimed at addressing civility in law practice that it has entitled “Critical Conversations.” BU Dean Maureen A. O’Rourke explained that Critical Conversations is “a series in which the entire community is invited to meet to talk about difficult issues.” She reported that “The series has inspired collegial and professional conversations about difficult topics.” BU Law’s Brenda Hernandez, Associate Director for Diversity & Inclusion, wrote me that Critical Conversations invites participation from students, faculty, and staff and has tackled difficult and complex subjects such as Privilege, Faith and the Law; Ableism – Perspectives from the Deaf Community; Class and Puerto Rican identity. BU Law’s first Difficult Conversation session in 2018 will focus on Title IX and the #MeToo movement.

As future lawyers, our students need to be able to discuss even controversial topics effectively and civilly. BU’s model is worth considering.