This post, as you'll see, is not about South African law specifically but about legal education (another of my main professional interests, which I hope to discuss more in the future). I'll start with a reasonably modest proposition: if legal education should be a more complete apprenticeship for practice than it now is (the central argument of the Carnegie Foundation for the Advancement of Teaching's recent study of law schools), then it might be a good idea to eliminate those accreditation rules that block students from engaging more directly in apprenticeship while in law school. There are a number of these rules, and there may be good reasons to retain some or even all of them. Moreover, they are by no means absolute bars to apprenticeship experiences. But they share the characteristic that they divide legal education away from the legal profession itself, and so the logic of apprenticeship suggests they should be reexamined. For example:
Standard 304(c) requires 45,000 minutes of attendance in regularly scheduled class sessions at the law school, out of a total of 58,000 minutes of all sorts, for graduation. Using a 50-minute hour, this requirement calls for 900 hours of classroom study; assuming 14 hours per credit, the result is 64 credits of classroom study out of the 83 credits required for graduation. Obviously this simply doesn't leave very much room for nonclassroom study -- especially since a variety of activities, including moot court and law review, typically claim some of the nonclassroom credits. (In-house clinic work, however, can be counted towards the 45,000 minutes of classroom attendance.)
Standard 304(f) bars students from being "employed" for more than 20 hours per week in any semester in which they are taking courses totaling more than 12 class hours. It is striking that there is no such limit on, for example, students' work on a law review. This rule is especially troubling because it is so significantly paternalistic; while restricting students' work hours may encourage students to actually engage in their classes, to the benefit of others, the principal impact seems to be to tell each student what is good for him or her. Paternalism in education is not necessarily out of place, but this particular rule -- which bars students from too much of an experience that may actually be educational (as an apprenticeship), and that certainly defrays the cost of law school -- not only constrains students based on what it claims is good for them but may not be right in its claims. If students disregard it, its main effect may be to teach them to dissemble. Its exact impact, moreover, is unclear and could be quite startling. The term "employed" is not defined; if it includes work in an externship placement, or in a mandatory pro bono activity, or in a volunteer position, then the impact on student choice and experience would be even greater than if the provision applies only to paid work.
Standard 305 permits credit for nonclassroom study, for example in externships. The number of credits is limited by Standard 304, since these credits don't fall within the 45,000 required classroom minutes. In addition, Interpretation 305-3 bars granting credit to students for work for which they are paid. Clearly this Interpretation presses students to choose between earning income and participating in externship programs designed by law schools to have educational value (more educational value, by assumption, than simple employment would have -- though Northeastern's co-op program, and the theory of "ecological learning" that supports it, raise some questions about this assumption). The Interpretation also implicitly suggests that where students earn income for their work they are not being educated. Nothing could be more contrary to the ideal of lifelong learning that law schools aspire to impart to their students.
This Interpretation also makes it harder for students to earn the money to cover part of the cost of their education, and it likely makes it harder for students to invest in their placements the numbers of hours that would enable them to become more valuable members of those legal staffs. It's also possible that potential employers, though they undoubtedly get a benefit from having free externs under the current system, would be more willing to invest resources in educating students on the job if the students, by virtue of being paid, were encouraged to work enough hours to make that investment more likely to pay off.
Standard 306 permits distance education, but not for more than 4 classroom credits for a student in a term or more than 12 overall. Those limits mean, it would seem, that distance learning can be an adjunct to classroom learning, but not a substitute. Whatever the merits of that choice in terms of comparing the pedagogical value of a distance learning hour to a classroom hour -- a question now being examined by various innovators, including my New York Law School colleague Michael Perlin -- the impact of restricting the role of distance learning is to limit the degree to which students can make law school classroom study an adjunct to intensive out-of-class learning through apprenticeship experiences (at least for students who are not enrolled in a part-time program).
There are larger issues, to be sure. For instance, it might be argued that the provisions I've cited do not undercut educational apprenticeship, because that apprenticeship should be provided primarily within the law school itself, rather than in large or predominant part through work/learning experiences elsewhere. In that case, the rules to focus on would be those that constrain, or do not sufficiently support, the offering of clinical experiences to students. Those rules do deserve attention, but I think the rules I've mentioned here also need reconsideration, because in the long run it seems to me that an effort to provide apprenticeship education that relies solely on law schools' internal resources is unlikely to be successful. I hope to say more about that, and other related questions, in future posts.