The debate over whether ABA accreditation standards (specifically, proposed Standard 303(a)(3)) should require law students to spend about one-sixth of their school time -- 15 credits, or approximately one semester -- in experiential education continues. (I linked to my debate about this issue with Brian Leiter here.) Here (minus a typo, and slightly reformatted) is the comment I submitted on this issue to the Council of the ABA's Section of Legal Education and Admissions to the Bar -- one of many comments the Council received. The latest word: Albany Law Professor Mary Lynch reports that the "Standards Review Committee," which had earlier recommended a lower requirement of 6 credits, yesterday decided to take no position on the 15-credit proposal, which now goes to the full Council for consideration.
January
31, 2014
Dear Members of the Council of the
Section of Legal Education and Admissions to the Bar:
I am writing to comment on the
proposal by the Clinical Legal Education Association, circulated for comment by
the Council, to require all law students to take 15 credits of experiential
courses.
It is certainly possible to debate some of the details of this proposal, but my
purpose here is to defend its central proposition: that all law students should
receive significant training in the practice of law before they graduate. This
is one of those propositions that almost seems not to need defense: who would
imagine a professional school that did not give its graduates training in how
to practice their future profession?
To endorse the value of significant
training in the practice of law is not at all to deny the value of other things
law students do, notably in studying rules of law, cases and statutes, and the
ways that lawyers employ these fundamental tools of their trade. The
traditional classroom is one way of teaching students this skill, and an
important one. But one might think that this method should normally be able to
accomplish its central goals in 5 semesters, or about 75 credits’ worth, of
classes, and that if students have pursued their classroom studies for that
long and have not yet learned how these critical elements of legal reasoning,
then it might well be time for some other approach – for example, an
experiential one, in which the way students master law’s intellectual moves is
by making them on behalf of real (or simulated) clients.
Nor is the endorsement of the value
of significant training in the practice of law a rejection of the utility of
students’ pursuing advanced study in particular course areas they view as
directly related to their future practice. Five semesters of classroom study is
a lot of time – time, probably, for the usual required first year courses, for
a battery of upper-level courses that many or most law schools require or
encourage, and time for some further specialization as well.
But even if we accept the
fundamental proposition that law students should get significant training in
the practice of law before they graduate, it might be argued, nonetheless, that
regular law school classes are an engagement with practice. There is
some force to this point. Socratic classrooms are much more engaged, I believe,
than lectures. Langdell, as I understand it, aimed to teach students the skill
of legal reasoning - and I certainly agree that's a practice skill.
There are two major problems,
however, with the "regular coursework as engagement with practice"
argument. First, the traditional study of legal reasoning is an engagement only
with a fraction of the skills a lawyer needs. It includes no interviewing, no
counseling, no trial skills (except a measure of advocacy training gained by
some students from the give-and-take of class discussion), no negotiation - and
actually not much training in legal research nor, in many courses, more than a
final exam's worth of training in the many challenges of legal writing. Second,
the sad truth is that the charm of this method wears off. Two years of Socratic
dialogue does not make the third year of it more profoundly rewarding. Instead,
it evidently leaves our students often deeply disengaged, as Mitu Gulati,
Richard Sander & Robert Sockloskie have shown in “The Happy Charade: An
Empirical Examination of the Third Year of Law School” (2001/02) available at http://www.seaphe.org/richardsander/pdf/Sander-Gulati-HappyCharade-final.pdf.
I think that clinical legal
educators have demonstrated over the past forty years that the other
skills of legal practice are also, like legal reasoning and legal doctrine,
susceptible of scholarly study and capable of being tau ght. Experiential
courses, including clinics, externships and simulation classes, aim to do just
that and so to add crucial depth to the practice preparation that law schools
provide. Clinics now are offered in a wide range of substantive areas,
including not only litigation but also mediation and public policy advocacy,
and not only poverty law and criminal law but also corporate and transactional
work as well. Even skills that may not be within the range of clinics (merger
& acquisition techniques, for example, for which few clients would welcome
student representation) can be addressed in simulation courses, and we have
good reason to believe, from two different NALP studies (the “2010 Survey of
Law School Experiential Learning Opportunities and Benefits” and the “2011
Survey of Law School Experiential Learning Opportunities and Benefits –
Responses from Government and Nonprofit Lawyers”), that simulation courses are
valuable even though law graduates rank clinics and externships even more
positively.
One might accept all this, and
respond that law schools actually already do give students the experiential
learning they need, by means other than course work. It might even be
contended, as one blog commenter suggested, that two summer jobs are “not
dissimilar” to medical school clinical rotations. I certainly don’t deny that
summer jobs can be very valuable. In fact, data from the After the J.D. study, as examined by Rebecca Sandefur and Jeff
Selbin in The Clinic Effect, 16
Clinical L. Rev. 57, 85 (2009), suggest that new lawyers viewed summer work as
the single most useful experience of their law school years in preparing them
for practice, with school-year legal employment coming second. It is not
surprising that students find legal work a valuable training ground for future
legal work – wouldn’t it be odd if they didn’t? – but isolated summer jobs, as
valuable as they are, are not school. Nor do they compare to medical school
clinical rotation, which is not only part of the medical school educational
program but a very extensive and intensive part. (A program like
Northeastern’s, in which four different work experiences are deliberately made
an integral part of the students’ overall law school experience, might well be
another matter – but that goes to the question of how to define eligible
practice training experiences, not to the basic need for significant practice
training before graduation.)
One might accept this point too, yet
respond that the choice of what courses to take should belong to the students
themselves. Certainly choice is important. But we teach in law schools, and
it’s built in from the start in our schools that most of the courses students
take must be law courses – rather than, say, political science or humanities.
Even within the domain of law courses, many or most schools restrict student
choice significantly – notably by prescribing most or all of the first-year
curriculum and sometimes parts of the upper-year curriculum as well. I think
the question is not whether we will limit students’ choices, but how much and
for what reasons. And on that score, I wonder whether part of the sense that 15
credits of experiential learning is too much might arise from a perception of
“skills” as a single subject, rather than as a very wide range of different
competencies that get used in different ways in different settings. We
routinely allocate 60 credits or more to teaching “doctrine” and the skill of
legal reasoning; it does not seem too much to allocate 15 (or some comparable
amount) to other skills of practice. Within those practice credits, I’d
certainly hope that law schools will offer their students a substantial range
of courses from which to choose.
One last point on the question of “how much?” Bob
Kuehn, in his essay “Pricing Clinical Legal Education,” available at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2318042, has compiled
figures on the “practice-based and clinical education” requirements in a range
of other professions: architecture, dentistry, medicine, nursing, pharmacy,
social work, and veterinary. Each of these requires at least one quarter of
students’ training to be in clinical settings; some require one third and, last
but not least, medicine requires one half (and that doesn’t include the years
of supervised post-graduate clinical training that follow receiving the M.D.) Kuehn
also presents cogent evidence that law school budgets can handle the cost of
clinical education – not that this education is costfree (it obviously isn’t),
but that the costs can be handled. The CLEA proposal is that approximately one-sixth of law students’ training be
in experiential courses. It seems to me that the burden is on those who
disagree with this proposal to explain why law students, unlike their peers in
other professions, do not need this level of experiential preparation for the
work they will soon be doing.
I appreciate the opportunity to submit these comments, and
hope the Council will find them helpful.
Sincerely,
Stephen
J. Ellmann
Professor
of Law
Director of the Office of Clinical
and Experiential Learning
New York Law School
